Ulrich Drobnig – författare

A creditor who made a loan to a debtor but does not have full confidence into the ability or willingness of the debtor to repay the loan fully and punctually, has two main options for securing his loan capital: He either can demand that the debtor gives him real security by encumbering one or several of his assets. Or he suggests to the debtor to win over a third party to act as a guarantor and to assume joint liability for repayment of the loan.

Such a form of personal security by means of a bond has been known for centuries. During the last decades, however, a number of other models for providing personal security for loans have been developed, in particular the guarantee, by now widely used in commerce.

Within the framework of plans of the Commission of the European Union to work out a uniform "framework of reference" for contract law, a multinational work group of the Study Group on a European Civil Code prepared proposals for uniform rules on personal security models. The proposals are based on legal developments formulated in the member states in the last decades and present draft uniform rules for the two basic types, viz. the dependent and the independent personal security for loans. Each proposal not only is accompanied by explanations but the legal situation in each of the 15 old member states is sketched also.

The work therefore is not only a presentation of a future model for European rules to come but provides also a fairly detailed indication of the present legal situation in the member states.

Against the background of the creation of an EU-wide frame of reference for private law relevant to the Common Market, this study, which was requested by the EU Commission, analyses the dovetailing between contract and tort law on the one hand, and between contract and property law on the other.

The study examines the legal orders of almost all the Member States of the EU, illustrates the differences between contractual and non-contractual liability and evaluates the different systems of the transfer of property, of movable and immovable securities as well as trust law. The study comes to the conclusion that the intensive considerations on the creation of a model-law in the area of European private law do not allow these thoughts to be limited to contract law. Such a limitation to the scope of the regarding of this area would probably cause more problems than it would solve, or at any rate not do justice to the needs of the Common Market.

The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in movables which are especially relevant for the functioning of the common market.

Like the Commission on European Contract Law’s "Principles of European Contract Law", the results of the research conducted by the Study Group on a European Civil Code seek to advance the process of Europeanisation of private law. Among other topics the series tackles sales and service contracts, distribution contracts and security rights, renting contracts and loan agreements, negotiorum gestio, delicts and unjustified enrichment law, transfer of property, and trust law.

The principles furnish each of the national jurisdictions a grid reference. They could be agreed upon by the parties within the framework of the rules of private international law. They may provide a stimulus to both the national and European legislator for moulding private law. Beyond this, they aim to further discussion about the creation of a European Civil Code, or a Common Frame of Reference in the area of patrimonial law, by submitting a concrete model.

The "Principles of European Law" are published in co-operation with Oxford University Press (Great Britain) and Staempfli Publishers (Switzerland).

This new volume contains fourteen national reports and a General Report on the use of comparative law by courts, which were presented at the XIVth International Congress of Comparative Law in Athens. It provides a general survey of the frequency and methods of a comparative recourse to foreign law by courts, describing both the methods of such recourse and the typical fields in which it is undertaken.

The reports offer an interesting cross-section of contemporary court practice from a wide variety of countries around the world – large and small, unitary and federal, and with differing historical backgrounds. All demonstrate the needs of national courts to look to foreign law for inspiration or as a model for dealing with new, unsettled issues of national law, and the reports illustrate well the impact of divergent traditions, attitudes and surrounding circumstances.

Of special interest are both the role of comparative law and the comparative method employed in the practice of a supranational court, such as the European Court of Justice.

In addition to the General Report, this volume contains national reports from the following countries: Canada, European Union, France, Germany, Greece, Iceland, Israel, Japan, Luxembourg, The Netherlands, United Kingdom and United States of America.