|Book Title||Mistake, Fraud and Duties to Inform in European Contract Law|
|Book Author||Sefton-Green, Ruth (ed.)|
|Bibliographic Information||Cambridge University Press, 2005, Pages : 462, $120.00, ISBN 0521844231|
Mistake, Fraud and Duties to Inform in European
Contract Law. Edited by Ruth Sefton-Green.
Reviewed by Ralf Michaels, Duke University School of Law
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
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