Journal of Civil Law Studies


harmonized European private law, acquis communau-taire, modernization of European Civil Codes


Globalisation has seen the development of a body of autono-mous legal rules of international trade that bridge the gap between the two main legal families (common law and civil law). These new rules focus on the function rather than on the dogmatic origin or legal tradition behind a particular norm or principle. In Europe, there are various texts that harmonize private law and which con-form to this model, such as the PECL, the DCFR or the CESL. Within the European Union, this process of informal and decentral-ized rulemaking has not yet resulted in the enactment of a European Civil Code (as even the CESL enactment has failed), but it has in-fluenced national law (the modernization of the German BGB, the Dutch Civil Code, and the reform of the French Civil Code). This direct influence on national law constitutes one of the aims of these harmonizing legal texts as stated in the introduction to the “Draft Common Frame of Reference.”

In Spain, the Civil Code enacted in 1889 has not been modern-ized, although the Supreme Court has seen harmonized European Law as an instrument to integrate national law, especially through the construction of a new system of contractual liability (providing a unitary concept of non-performance and fundamental non-perfor-mance, rules regarding termination of contract, and change of cir-cumstances), recognising that the solutions of the Civil Code are mostly unsuitable for the new social reality.

Otherwise the construction of the acquis communautaire has de-livered a body of norms aimed at the protection of consumers (gen-erally as the result of the transposition of EU legislation). This large volume of special regulations has been gathered together in a single “Consumer Protection Act” in Spain. In a different way, other coun-tries such as Germany or the Netherlands have recently made the decision to incorporate consumer protection regulations into their civil codes.

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