Along came a spider...

This second edition of Cases, Materials and Texts on Contract law in the series of Ius Commune Casebooks for the common law of Europe comes at an exciting moment for 'European' contract law. The preface to the first edition stated that the authors hoped

... the book will be used as teaching material in universities and other institutions throughout Europe and elsewhere in order to familiarize future generations of lawyers with each others' legal systems and to assess and facilitate the impact of European supranational legal systems on the development of national laws and vice-versa.

Little did the authors realise that only a few years later, the European Commission would be consulting on whether the fragmentary European contract law contained in various Directives should be replaced or supplemented by European rules on contract law in general, possibly in the form of an Optional Instrument that the parties might choose to govern their contract in place of national law, and would have established a group of experts to draft a model Optional Instrument. (For details, see Chapter 1, section2.) Nor did they expect that at the national level, major reforms would have been enacted in Germany and would be under very serious discussion in France – both reforms being heavily influenced by developments in 'hard' and 'soft' law at the European level. It becomes all the more important that students should be given some idea of the differing laws and traditions across Europe and of the extent to which we have a 'European' contract law.

Looking at primary sources, both legislation and cases, to see how concrete situations are resolved in the various systems is of great value to students in helping them not only to see how other systems work but to evaluate whether reform or further European legislation, such as an Optional Instrument, is needed. It will also give them a greater understanding of their own laws. Comparing the results of cases with similar facts, and the solutions provided in concrete examples, is at the heart of the 'functional' approach which is one of the keystones of comparative law.

The book continues to concentrate on cases, legislation and 'black-letter' rules of law. We are very aware that such an approach has serious limitations; that there may be deeper differences of philosophy, of 'mentalité', which may be masked by a superficially similar result. A good comparatist should explore these, which requires a much more rounded study of the traditions and institutions of each legal system than can be offered here. However, we continue to think that a comparison of black-letter rules is the best place to start.

Unfortunately, a book for students cannot cover all the European systems and still remain affordable. The book continues to concentrate on English, French and German law, with more information on Dutch law than in the first edition. Other systems are mentioned only when they have particularly striking solutions to problems as, for example, does Italian law on questions of good faith. We hope that it may be possible to develop the website associated with the book (see http://www.casebooks.eu/contractLaw/) to allow colleagues from other Member States to add (or create links to) comparable materials from their own or other jurisdictions.

The second edition has been prepared by a team of five, using a different approach to the first edition: each of us has gone through every chapter to ensure that what is said about the law from his or her country is correctly stated, and we each take collective responsibility for the whole. This change in approach is not intended as a criticism of the first edition. It is a tribute to the authors of the first edition that so much of their work remains in its original form. We are indebted to them all – to the two principal editors who are no longer involved, Professor Arthur Hartkamp and Professor Dr Hein Kötz; and to the contributors of individual chapters, Professor John Harrington, Professor Martijn Hesselink, Hugo van Kooten, Remiert Tjittes and Hester Wattendorf. We are also grateful for their permission to edit and use the material they prepared. In many ways, this edition remains their book as much as ours.

In addition to updating the materials (the most extensive changes result from the revision of the BGB in 2001, but there is much new material from each of the national jurisdictions as well as from the EU), we have added a few 'classic' cases from each jurisdiction (a request from one of those who so helpfully commented on their experience in using the first edition). The book has been significantly re-structured to make it easier to follow and use.

We owe many debts of gratitude. First, Professor Dr Gerhard Dannemann and Professor Sir Basil Markesinis have kindly permitted us to reproduce their translations of cases from German law. Secondly, Professor Dannemann and Mr Geoffrey Thomas have permitted us to use their translations of the new provisions of the German Schuldrecht. We commend both the French and German Ministries of Justice for publishing English translations of the French codes and the BGB, but on occasions Dannemann and Thomas' translation is easier to use than the Ministry version. In addition we wish to thank those copyright holders who granted us permission to quote extracts from their work in the first edition of this book and whose permission to do so in this edition is once again gratefully acknowledged. Professor Andrew Burrows and Mr Edwin Peel also granted us permission to use (in chapter 13) extracts from Professor Vogenauer's essay 'Interpretation of Contracts: Concluding Comparative Observations' which first appeared in the volume Contract Terms (OUP, 2007). We also wish to express our deepest gratitude to the research assistants who have helped us at various stages of the process: Sarah Brown, Viktor von Essen, Veronika Korom, Hannah Müller, Till Soyka and Tessia Tober. Lastly, many thanks are due to Richard Hart and his staff for their patience with us and their skill and understanding in dealing with a long and difficult manuscript.

Hugh Beale
Bénédicte Fauvarque-Cosson
Jacobien Rutgers
Denis Tallon
Stefan Vogenauer
September 2010

Denis Tallon played a full role in the first stages of preparing this edition. Sadly, ill-health then meant that his participation had to be limited. Nonetheless he has continued to advise and, when he can, to comment on the drafts. We are enormously grateful for his wisdom, his continued interest and support and his friendship.

Hugh Beale
Bénédicte Fauvarque-Cosson
Jacobien Rutgers
Stefan Vogenauer