Along came a spider...

This book is the second of the series of Casebooks on the Common Law of Europe under the General Editorship of Professor Walter van Gerven, who was also the principal author of the first in the series, the casebook on Tort Law. Like that book, the present volume aims to explore the extent to which, despite differences in approach, concepts and terminology, common principles underlie the laws of contract of the EU Member States. It has been prepared by an international team, each of whom is primarily responsible for particular chapters or sections, as shown on the title page, subject to the guidance of the principal authors.

The authors share the hope of the authors of the Casebook on Tort Law that "... 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."

We believe that looking at primary sources, both legislation and cases, to see how concrete situations are resolved in the various systems is of considerable value to students not only in helping them to see how other systems work but also in understanding 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.

In many ways, however, the present volume is no more than a beginning. First, for the most part, the Casebook on Contract covers only three laws of contract - those of England, France and Germany. Other systems are mentioned only in relation when they have particularly striking solutions to problems - as, for example, does Italian law on questions of good faith. The problem has not been lack of offers of help from other countries. It is simply that size and price impose severe limitations on what can be included. We have thought it better to cover a few systems in depth rather than many more superficially, and felt unable to take up the very kind offers we received. The Dutch authors felt they had even to give up any systematic treatment of their law, to the regret of us all. Perhaps these are matters which can be reviewed in a future edition.

The book does consider both the Unidroit Principles of International Commercial Contracts and, more particularly, the Principles of European Contract Law. The latter are used in two particular ways. First, because the Principles attempt to state the rules too heavily on uniquely national concepts and terminology, the articles that are most relevant to the topic to be discussed are usually set out at the start of each section, to give an indication of the subject matter to follow and to "set the scene", as it were. Second, the Principles are frequently re-examined at the end of the treatment as a point of comparison to the national laws which have been considered. The question is then posed: do the Principles genuinely reflect rules which are common to the different systems?

Secondly, the book concentrates on how particular fact situations are handled in the various systems. There is always a danger that such a "case-oriented" approach will leave students without any clear idea of the overall shape each system studied and how its components - for instance, its laws of contract, tort and unjust enrichment - fit together. Partly for this reason the first chapter compares particular features of each of the three systems and looks at tort and unjust enrichment as well as contract. Further, each chapter mixes primary materials with a considerable amount of commentary and explanation. But teachers using this book will need to be aware of the need to direct their students' attention to broader issues, and the interrelation of the law of contract with other parts of the law, within each legal system.

Thirdly, the book concentrates 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 is offered here. However, we think that a comparison of black-letter rules is a good place to start and therefore offer this collection to that end.

At this juncture, Professor van Gerven's Foreword to Tort Law bears further quotation:

"It is not the intention of this work, or of the series as a whole, to unify the existing laws of tort or of the other areas of law that are to be covered. That would not be possible, nor would it be desirable. For indeed, the diversity of European legal systems reflects not only a variety of legal cultures - which are bound to converge in step with European integration - but also and perhaps mostly a variety of value judgments or policy choices which find their expression in the legal systems. In their effort to uncover common roots, the authors do not wish to express any preference for the solution embodied in one or the other legal system, where that would imply endorsing the underlying value judgment over alternative judgments. In the absence of a common European legislature (outside the limited areas for which national competences have been transferred to the European Union), there is indeed no authoritative source, other than national legislation or case law, from which a common understanding as to the fundamental value judgments underlying national law can be derived. Although that should not prevent legal writers from expressing their own personal preferences, we would prefer not to do that, or to do it only exceptionally, in a book like the present one which is intended to inquire into the common core of principles in the national and supranational legal orders existing within the European Union."

This casebook only is a beginning in a fourth sense. We have not yet much experience of teaching students from differing legal traditions from materials covering a variety of legal systems. Authors of different chapters in the book have had different ideas as to how this is best done; and as we simply do not yet know which approach works best (or indeed whether different areas of contract law may not require different approaches), we took the deliberate decision not to try to harmonize the chapters completely. Instead we decided to have just a few common features, for example, to introduce sections by setting out the relevant articles from the Principles of European Contract Law just as a way of indicating what the section is principally about. We hope that colleagues who use the book will let us know which chapters they find "work best" and that we can help then adopt the "best" models in a future edition.

We are also very conscious of the immense difficulties of translating legal texts. We are enormously grateful to our translators, in particular James Benn and Norton Sims, who have done the vast bulk of the work. We firmly believe that they have served us well. But in an ideal world we would like to have the original texts available to the enquiring reader. Originally we had hoped to make them available on a website but both lack of time and lack of resources have so far prevented this.

Time has been a constant enemy in the production of this book. There have been severe delays caused by authors' other commitments, promotion and in one case illness. Some of the chapters - in particular those of Precontractual Good Faith and Threats and Abuse of Circumstances - were completed as long ago as 1996 and it has been possible to do only limited updating since. Again in an ideal world we might have waited until that could be done but so many colleagues have asked us to publish what we have that we have decided not to delay any further and to offer this collection of material after a final editing which was carried out largely by Dr. Ludovic Bernardeau, with valuable assistance from Professor Denis Tallon and Mr. Robert Williams. Additional help was given by Nadia Motraghi and Oliver Radley-Gardner. I am most grateful to them all. Errors of course remain the authors' responsibility. Sincere thanks are also due to Richard Hart and Hannah Young of Hart Publishing, without whose help and patience the project would not have been completed. Your authors hope and believe that the book will be of value.

Hugh Beale
London, October 2001.