Here is the link to the document prepared by Udo Reifner: Trento Meeting Sept 2009 (Reifner slides)

Below is the suggested preliminary schedule for the Meeting (comments, amendments welcome).

Suggested Programme: EuSoCo Meeting – Trento September 25, 2009

9.00 Welcome

-Agenda, Protocol, Technical

9.15-10.00 Purpose and Goals

-brainstorming (DCFR, language, publication, proposal, politics, participants)

10.15-11.00 Social Contracts

-What is it? Intro + Discussion

11.15-12.00 Issues for Research

-horizontal or vertical approach, theory and application,

12.00-13.00 Lunch Break

13.00-14.00 Research Grants

-Where and How? Website, Communication, Meetings (Sebastien), support?

14.00-15.30 Work in Groups

-European Contract Law Antoniolli/Nyberg/Perez/Nicolussi

-Labour Law Dockes/Kocher/Nogler/Pilgersdorfer

-Consumer Credit LawHuls/Howells/Reifner

15.45-17.00 Reports and Gen. Discussion

17.15-18.15 Workplan

-Who? When? What? (March 2010 first pub. BOD?, Research Proposal, Coord., next meeting)

Regulation and self regulation in the fight against over-indebtedness in the Netherlands. A socio-legal and economic anlysis.

Draft, Do not quote

Paper for the Conference in Chemnitz, March 26 –28 2009 on Overindebtedness: Everyday Risk in Modern Societies? Theoretical Aspects and Empirical Findings in International perspective (download)

Plus addendum for EUCOSO Trento, 25 –26 September 2009

Plan for future research in the light of the credit crisis

Nick Huls & Nadja Jungmann, Erasmus University Rotterdam

Comments are welcome, please mail them to

huls@frg.eur.nl

1. Introduction

In this paper we pick up the thread from two earlier joint publications. In 2003 we discussed the creation of the WSNP (Debt Rescheduling (Natural Persons) Act) and the legal evaluation by the WODC (Research and Documentation Centre)

in 2001. In our 2009 publication we discussed the most important findings from Nadja Jungmann’s dissertation: the significant decline in the success rate of the voluntary trajectory, the insufficient policy theory of the legislator, and the strategic behaviour of municipalities (withdrawal), creditors (saying ’no‘ to the voluntary trajectory is cheaper) and assistance workers (bureaucratisation of implementation). In this third paper we discuss the way in which the debt problems and credit lending are addressed and/or managed in the Netherlands by a combination of government and self regulation. Read the rest of this entry →

Luca Nogler/Udo Reifner

Social contracts in the light of the Draft Common Frame of Reference for a future EU Contract Code

1. The ignored social dimension of the DCFR

The Draft Common Frame of Reference[1] has been already criticized for its dogmatic weakness and political implications[2], extended scope by a limited basis[3], its broken relation to national legal cultures[4]. This essay wants to focus on the vertical questions of whether the DCFR would threaten and undermine the social acquis of continental European social contract law. Such an approach has a common basis with the critique from the Manifesto group[5] on the deficit in social justice shared by an increasing number of authors[6]. Even the EU-Parliament before officially discussing this Draft has asked to explore the „role of fairness and social justice in the DCFR“[7] which led to a general defence of the DCFR by a member of the Manifesto group recommending some minor amendments to its principles.[8]

Starting from the point that social justice is an important criteria for a future European Civil Code we choose a quite different methodology. Social justice as a yard stick as proposed by the EU-Parliament is a far too arbitrary and vague concept in private law. Its genus proximus is justice which all law has to obey to. Therefore one would have to concentrate on its differentia specifica which is hidden in the tiny word social. The English language, in which the DCFR paradoxically has been drafted by civil lawyers who have learned their English in a foreign legal context is already a barrier to a proper understanding of the word social in law.[9] Looking at its Latin roots (socius) does not help either since it refers only to such behaviour which we would call today joint or collective.[10] In this sense each legal rule is by definition a social norm[11] so that this denominator would be meaningless.

But the notion has since long evolved in present national as well as EU-social policies. To understand its meaning these development should have been taken much more into account by contract lawyers.[12] Social policy aims at ensuring a decent life for all. It concerns the generation and use of income in a modern money economy for managing one’s own family and social life in dignity providing access to those goods and services which are especially needed. It wants to protect human beings from all forms of poverty and deprivation especially from lack of income, usury and exploitation, insufficient means for personal well-being and give them shelter from (the effects) of unemployment, homelessness and overindebtedness.[13] These tangible foundations lead us to a solid ground where those contracts prevail which respond to the generally accepted aspirations of social policy which we would like to call social contracts.

Social contracts are long-term contracts on the way human life time is spent.[14] They comprise labour contracts as well as all other legal forms where labour is invested to gain one’s living through dependent long-term relations including collective forms of secondary labour income. Because labour income flows neither steady nor eternally and is not paid where it is needed credit services in money and in kind provide for its local and timely allocation. Credit is the necessary complementary contractual relation in which either income is allocated to when and where it is needed (consumer credit, mortgage loans, private pension schemes, educational finance; bank account and payment services) or in which access to certain services like housing, transportation, water, heat, electricity are provided in the form of deferred payments or rent. Social contracts therefore use the legal form of a rent contract which in Roman law was called locatio conductio (operarum, rei and irregularis) as a counterpart to emptio vendita. The locatio conductio socialis[15] provides a common legal ground for labour, tenants and finance lawyers[16] who have no reason to accept that the rise of the emptio vendita to a timeless spot contract[17] and to an asocial (do ut des) form[18] of understanding human relations for a sales society which has already been overcome should be the only form in which European private law should be formed to manage the challenges of the present credit and service society. Although this relation between contract law and social policy is obvious there seems to be little connection within the legal sciences and with regard to sociology and political science as well as welfare economists[19] who keep questions of Europeanisation of labour law[20] and social policy[21] separate. Read the rest of this entry →

Lifetime Contracts and the Draft Common Frame of Reference

– A preliminary draft agenda for the Trento Meeting of the EuSoCo Project (July 10, 2009)

(For personal use only – no language check applied)

Udo Reifner/Luca Nogler

Preface:

The following points are made in order to structure and prepare the discussion at the Trento seminar on September 25, 2009. We use the notion lifetime contracts as a working definition for social longterm contracts like labour, tenancy and consumer credit contracts. We are aware of the fact that other socially meaningful longterm contracts do exist in the area of goods of first necessity, associations, company law but we assume that the idea of a life time contract based on the legal idea of renting (location conduction) has nowhere emerged so clearly as in these three areas. The points made here are very preliminary and incentives for work and partition of labour. We would like to get as much material and hints as to the national and international discussions in this area as possible in order to be able to design a research project who after the Trento meeting has to be proposed in the FP 7 programme of DG research. iff will overtake the technical part. For this we also need ideas of the participants what resources they would like to have from the project, who else should get involved. The project will be conducted in three languages: German, French and English. Papers can also be presented in the mother tongue of the author if a summary or explanation in one of these languages is available. In our discussions we will provide short translations but make no restriction to the use of either of these languages. Read the rest of this entry →

Vers un principe de défaveur ?

Quand le droit européen affronte la tradition des droits nationaux[1]

Emmanuel Dockès

Sous des noms divers, une idée assez simple semble toujours actuelle au sein du droit du travail de nombreux droits des Etats membres de l’Union européenne. En droit français, on parle de principe de faveur, en droit allemand de Günstigkeitsprinzip, en Italie de derogabilità in melius, … Une étude comparatiste plus poussée serait nécessaire por mieux montrer la force, mais aussi les limites de cette idée commune. D’autant que cette idée semble désormais menacée en droit européen. Read the rest of this entry →

Avant-Projet de Reforme du Droit des Obligations (Articles 1101 A 1386 Du Code Civil) et du Droit de la Prescription (Articles 2234 à 2281 du Code Civil)

Rapport à Monsieur Pascal Clément Garde des Sceaux, Ministre de la Justice 22 Septembre 2005

1. Le bicentenaire du Code civil a connu un immense retentissement dans la plupart des pays ayant la codification en partage, quelle que fût leur langue. Il donna lieu à d’innombrables manifestations, dont émergèrent, bien qu’elles fussent de taille et d’inspirations diverses, les noms de Portalis et de Carbonnier. Le fondateur et le rénovateur avaient en commun la culture historique, une connaissance approfondie des coutumes et des traditions qui forment « l’esprit des siècles », et le sentiment qu’ « il est utile de conserver tout ce qu’il n’est pas nécessaire de détruire ». Ils n’étaient pas des faiseurs de systèmes, mais ne doutaient pas, cependant, que la loi soit, avant la jurisprudence, mère de l’ordre juridique. « La science du législateur consiste à trouver, dans chaque matière, les principes les plus favorables au bien commun ; la science du magistrat est de mettre ces principes en action, de les ramifier, de les étendre, par une application sage et raisonnée, aux hypothèses privées » (Discours préliminaire). De ces deux noms accolés s’exhalait une double certitude : que le Code de 1804 constituait toujours un modèle idéal de législation civile ; qu’il était possible de le rénover sans dégrader sa structure ni sa forme. Jean Carbonnier l’avait démontré en transfigurant le livre premier avec le bonheur que l’on sait. Mais par-delà les propos agréables qui sonnèrent aux oreilles françaises, un autre message, le plus souvent tacite, nous était adressé ; il disait : qu’attendez-vous pour continuer la modernisation de votre code ?

2. A cette tâche, et dans la perspective du grand rendez-vous de 2004, une poignée de civilistes universitaires s’étaient attelés un an plus tôt. Le déclic provint d’un colloque organisé par la faculté de Sceaux qui mettait en parallèle le droit français avec les « principes européens du droit des contrats » issus des travaux de M. Landö. Il paraissait en ressortir que si, sur certains points, notre droit était ou pouvait entrer en convergence avec la trame proposée pour l’Europe, sur d’autres points, cette dernière contrevenait davantage à notre tradition nationale. Dans la conjoncture du moment, ceci méritait à l’évidence d’être approfondi……

Click here to read ‘Code Civil – Avant-Projet de Reforme du Droit des Obligations’ (2005)

The Example of the Baltic States, Hungary and Poland – N. Reich, 2004

Instead of trying to analyse European private law under EU influence as a whole, I limit myself to the transformation of contract law because the discussion is most advanced here, and because it is an area where I can contribute most from my research and teaching. My concept of European contract law is a functional one and has been described elsewhere. I distinguish between three main functions of modern European contract law, namely: Autonomy; Regulation; Information.

I want to use this approach in analysing the transformation process of several – not all – new Member countries, namely the Baltic States, Hungary, and Poland. Under autonomy I understand the fundamental function of any contract law in a market economy like the one enshrined by the EC and EU Treaties, namely to make economic transactions by subjects of private laws (natural persons including consumers, business entities, the state acting in its “dominium” function) as secure and efficient as possible, to enforce them effectively under the rule “pacta sunt servanda”, once the conditions of a “free meeting of the minds” are met. At the same time I am convinced that even in a liberal economic and legal context, autonomy is not without borders; therefore, its inherent restrictions have to be made the subject matter of reflection, most notably by the principle of “good faith”…..

Click here to read ‘Transformation of Contract law and civil justice in new EU member countries’ (N. Reich, 2004)

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The values underlying the DCFR: what role for fairness and „social justice“? (EP, IMCO, Hesselink, Sept 2008)

This study provides an in-depth analysis of the provisions of the draft Common Frame of Reference (DCFR), in order to assess if the DCFR perceives contract law only as a tool for regulating private law relations between equally strong parties or if it contains elements of ’social justice‘ in favour of consumers, victims of discrimination, small and medium sized enterprises and other possibly weaker parties to contracts. After introducing the notion of social justice and its relationship to European contract law, this study explores the key social justice issues in the DCFR, their content and sources of inspiration. Finally, the last chapter draws some conclusions on the question if a balance has been struck among conflicting values and in particular between, on the one hand, individual private autonomy as expressed in the idea of freedom of contract, and on the other hand, principles of protection of weaker contracting parties responding to demands for social solidarity.

Click here to read ‘The values underlying the DCFR: what role for fairness and „social justice?’ (EP, IMCO, Hesselink, Sept 2008)

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