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Book TitleMistake, Fraud and Duties to Inform in European Contract Law
Book AuthorSefton-Green, Ruth (ed.)
Bibliographic InformationCambridge University Press, 2005, Pages : 462, $120.00, ISBN 0521844231

Review Title
Reviewer(s) Michaels, Ralf

Short review

Mistake, Fraud and Duties to Inform in European Contract Law. Edited by Ruth Sefton-Green. Cambridge: Cambridge University Press, 2005. Pp. 462. $120.00.

Reviewed by Ralf Michaels, Duke University School of Law

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In the buzzing world of comparative law and European private law, where some entertain comparison without method and others entertain method without comparison (and others entertain neither and suggest “best” solutions based on gut feeling), the “Common Core of European Private Law” stands out as one of the few examples of scholarship that combine both. Its original antidoctrinal methodology was a combination of Rudolf Schlesinger’s common core approach with Rodolfo Sacco’s theory of legal formants. This volume, like the four before it, uses less Sacco but more doctrine: since the first volumes published, doctrinal history has been added, unofficially, as a methodological tool. The core of this book, the fifth to come out of the project, is comprised of twelve case studies based on hypothetical cases, the answers to these cases by thirteen (Western) European legal orders, and comparative observations by the editor, Ruth Sefton-Green. In addition, Martin Schermaier and John Cartwright provide historical expositions of the doctrinal development in the civil law and in England. Finally, Sefton-Green has contributed two more texts: a “General Introduction” on doctrinal-conceptual issues and the methodology and choice of hypotheticals, and “Comparative conclusions” that bring together general insights from the answers on doctrinal constructions and underlying values.

 

The topic of the volume – defects of consent and duties to inform – is one of the most fascinating and difficult issues in contract law. Legal systems use a breathtaking multitude of doctrinal tools that ultimately break down to the same criteria: the respective status of and relationship between the parties, importance of the mistake of information, fault of one or both parties, information costs. The book shows both of this admirably. Its method prevents it from emphasizing two further aspects. First, regardless of the doctrinal construct, solutions invariably mirror the underlying tensions of this area of the law: individualistic versus communitarian conceptions of contracts, objective versus subjective theories, will theory versus reliance theory, protection of intentions versus security of transactions, free market versus distributive justice. These tensions exist, almost naturally, not (only) between but (also) within legal systems. An approach that collects “the” solutions given by legal systems tends to be misleading, or at least incomplete. Second, the editor herself remarks that “[o]ften, the solution to the problem case is derived from casuistic considerations” (369). This is where a case-oriented method should excel. Yet the hypothetical cases are, in traditional civil law manner, stripped of almost all non-essential facts and contain no factual alternatives; it is up to the authors to speculate on their relevance. Moreover, merely twelve hypothetical cases, with no inbuilt factual alternatives, cannot give more than certain aspects of the law.

 

The consequence is that this book, perhaps like the results of the common core project in general, is closer to traditional comparative law than the programmatic ambition might have suggested. The project has four distinctive qualities though that set it apart: First, the descriptive character of the endeavor ensures as far as possible that there is no preference of similarity over divergence or of one solution over the other. Secondly, the project uses a case method instead of conceptual or functional comparison; this makes, perhaps, for more accurate pictures of how legal systems “really” function. Thirdly, the project includes a great number of legal orders and experts from each of these countries instead of the frequent limitation to Germany, France, and England. Finally, the volumes are the fruit of long and intensive collaboration between the reporters and the editor, which helps in making sure that everyone understands not only the hypothetical cases in the same way, but also reviews her view of her own law in the light of the others. This results in thorough (though not always breathtakingly novel) insights in comparative law. This book, a fine work in comparative law, is no exception. If it falls short of the project’s perhaps lofty ambitions, it nevertheless gives us both more true comparison and method than most other current projects. This may well be what the current debate needs most.