1

A project in Europe

Action Plan on a More Coherent Contract Law (COM (2003) 68 final

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Acquis group

A Restatement of existing provisions (in regulations, directives, and European case-law), on issues related to contract(http://www.acquis-group.org/)

Article 2:201: Duty to inform about goods or services

Before the conclusion of a contract, a party has a duty to give to the other party such information concerning the goods or services to be provided as the other party can reasonably expect, taking into account the standards of quality and performance which would be normal under the circumstances.

Article 2:208: Remedies for breach of information duties

(1) If a business is required under Article 2:203 (information duties towards disadvantaged consumers) and 2:204 to provide information to a consumer before the conclusion of a contract from which the consumer has the right to withdraw, the withdrawal period does not commence before all this information has been provided. This does not postpone the end of the withdrawal period beyond one year counted from the time of the conclusion of the contract.

(2) If a party has failed to comply with its duties under Article 2:201 to 2:204, and a contract has been concluded, this contract contains the rights and obligations which the other party could reasonably expect as a consequence of the absence or incorrectness of the information.

(3) Whether or not a contract is concluded, a business which has failed to comply with any duty imposed by the preceding Articles of this Section is liable to the other party for reliance damages. The rules on damages for non-performance of a contractual obligation apply accordingly.

“SHALL”

G. EÖRSI, ‘Unifying the Law. A Play in One Act, With a Song’, 25 (1977) American Journal of Comparative Law, 658ff.):

“a dog shall bark” can convey 4 different meanings:1) a duty or obligation: dogs must bark, (2) a discretion: dogs may bark; (3) a weak or toothless duty: dogs should bark, but there are no consequences if they do not, and (4) a fact or consequence: dogs will bark.

Domicile

even such an ordinary notion may not coincide across countries

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Rectification

rectification of a contract: “a party can apply in equity for a rectification of a written contract and he will succeed if he can prove by the strongest oral evidence that it does not properly reproduce the terms of an oral agreement” (Lawson, 1951).

[“reformation”, in the USA?]

8

Same words, different meanings: a common complaint

• Regulation (for primary legislation)• Remedy (for adjusting performance, rather

than damages)• Creditor/debtor (of performance)• Professionista (for business)• Warranty and guarantee

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Variable meanings (within national borders)

• “conversion” [in common law]• “invention” [in civil law]• “compensation” [in civil law]• “merger”

By any measure, conversions must improve

Rose Wild , The Times, Saturday 25 February 2012, “Opinion”It concerns the so called “imperial measurements” and the metric systemhttp://journalisted.com/rose-wild

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Merger clause“A contract in writing which contains a clause indicating that the writing completely embodies the terms on which the parties have agreed, cannot be contradicted or supplemented by evidence of prior statements or agreements.However, such statements or agreements may be used to interpret the writing”.

UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS 1998, ARTICLE 2.1.17

[Integration clause, full incorporation, whole contract clause, entire agreement]

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Distrust in EU process?

The pedantic reaction to linguistic innovation introduced by the EU may be caused by lack of transparency in the European legislative process

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Lack of experience

Within the EU: not great experience in co-drafting of legislation in different languages (apart from Belgium, and Cataluña), not much confidence in drafting in different languages (in Italy we only have developed a minor competence in Alto Adige/Süd-Tirol)

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Court of Justice of the EU – A. 19[Lisbon Treaty]

A Court of Justice including:• the Court of Justice• the General Court

• the Civil Service Tribunal (http://curia.europa.eu/jcms/jcms/Jo2_6999/)

• Corte di Giustizia comprensiva di:• Corte di Giustizia• Tribunale/Tribunal (“Tribunal General” in

Spain)• Tribunale del funzionamento

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Common complaint

The language of the EU inclines to some Latin:“to permit” rather than to “allow”;“inertia selling” ( for “unsolicited goods”).

Many nouns, rather than verbs: “Further reflection on the opportuneness of non-sector

specific measures such as an optional instrument in the area of European contract law”.

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Plain Language International Association

• “Keep the subject and verb close together …• Keep sentences under 35 words … • Use verbs instead of nouns for your action”.• http://plainlanguagenetwork.org/stephens/

intro.html

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Bureaucratic language

“in written form or by means of a durable medium” (Distance selling Directive 97/7/EC of 20 May 1997, “recital” n. 13 & art. 5,1);

The consumer should be able to take an “informed transactional decision” (Commercial Practices Directive, 2005/29/EC, Article 7, 1)

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Regulation 1924/2006 on nutrition and health claims made on foods

Recital 15this Regulation takes as a benchmark the average consumer, who is reasonablywell-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice, …

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Constraints

When working as legal drafter one realizes that there are certain limits to the possible choices, especially where a certain case-law has already been established and a change in terminology would be unsettling;

[costs of “returning the goods”]

20

iate

• Some clarification may be found by searching the European data base

• http://iate.europa.eu/iatediff/switchLang.do?success=mainPage&lang=it

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Comparing different versions

• The Court of Justice: it is legitimate for judges to consult other linguistic versions to decide on an obscure meaning:Regina v. Pierre Bouchereau, case 30-77, decision of 27 October 1977, ECJ Reports 1977, p. 1999

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W. Robinsonhttp://www.opc.gov.au/calc/docs/Loophole-Feb2011.pdf

“derogate” is used for “repeal” (influence of Spanish),

“motives” for “statement of reasons on which an act is based” and

“visas” instead of “citations” (influenced by various Romance languages),

or “guideline” for “directive” (influence of German and Dutch).

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Payment’s delay

In some EU directive the expression is used to indicate the performance date (not that the payment will be late, after expiration of the final date)

(délai: in French indicates the final date, the time limit within which an obligation has to be fulfilled).

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A string of substantives

For foreigners, a specific difficulty: many nouns follow each other in a row.

• “class-action equal protection suit” • “charitable remainder annuity trust”• “q(ualified) t(terminable) i(interest) p(roperty) trust” • payment service provider's liability for unauthorised

payment transactions: Liability of the payment service provider for unauthorized payment ... (art. 8 G 04, Acquis Principles)

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A linguist in bilingual Québec

Les langues germaniques ... pratiquent … l'antéposition du modifiant .... sans préposition. …. pour le français une ambiguïté que celui-ci ... résout par le choix de la préposition : a wine glass = un verre à vin, the wine list = la carte des vins. The Monroe Doctrine est la doctrine de Monroe, tandis que the Social Security Act, ... aux États-Unis (1935), correspond ... à la loi (française) de 1928 sur les assurances sociales.

(Jean DARBELNET)

European vocabulary

Effet utile, spill over effect, acte clair, proportionality, subsidiarity, States’ estoppel effect …