Programme Structure - Intended Results - Academic reputation and the distribution of research results - Relationship to the Research School - Effects of the cooperation - Research facilities and resource apportionment

Programme Structure

a. Original issue definition, objectives and method

The research conducted in the field of contract law and the law of obligations in general concentrates on the one hand on investigating the law of the Netherlands (and other national legal systems) against the background of a European private law, and on the other hand on analysing the desirability and feasibility of creating a European contract law and law of obligations. The research emphasises, in contrast to the Foundations programme, in particular the problems that are specific to the law of contract.

The research focuses on the more general issues of harmonisation and unification, and the difficulties that arise in that context, as well as on traditional comparative law. A productive research field is created by viewing comparative legal research into separate topics of contract law and the law of obligations in general in the light of these more general issues. As regards the general issues, it is possible to think of the EC's competence to create rules in the area of contract law, the issue of the fundamental differences between common law and civil law systems and of course the mutual compatibility of the different civil law systems. Accordingly, there are doubts about whether the EC treaty provides a legal basis for a European codification of contract law. Furthermore some scholars are more pessimistic than others with respect to the possibility of bringing the common law and civil law in line with each other. Questions relating to the method of unification that should be adopted (European directives, Principles, treaties, free movement of legal rules leading to a 'mixed' legal system, etc.) and their relative disadvantages are constantly incorporated in this research. To this extent, productive interaction also exists with the Foundations research programme.

The topics of the law of obligations that are studied within this framework relate to the formation, content and non-performance of contracts, as well as the relationship between contract and the other sources of obligation. With respect to the latter, the relationship between the law of restitution (undue payments, unjust enrichment and the management of the affairs of another - negotiorum gestio) and the law of contract is addressed in particular. There is every reason for this since, from a comparative perspective, these sources are strongly interconnected. In this research, an attempt is also made to transplant the insights gained through comparative legal research into Dutch law. Research is also conducted into the contract law principles that are common to the European systems, and those principles that can be regarded as typically common law or civil law. In that context, consideration is usually also given to the value that mixed legal systems (in particular South Africa and Scotland) can have for a future European private law. It is pointed out that liability law is for the most part brought under the Liability and Insurance research programme.

Closely connected to the issues mentioned above is the influence of European harmonization instruments (in particular directives) on national law. Research takes place into the content and manner of implementation of directives in the field of contract law in Dutch law (in comparison with some other legal systems). This research not only leads to conclusions about the directive's quality and its suitability to achieve its objective, but also to conclusions about the extent to which member states fulfil their obligations to implement European directives.

To this end, three main areas of research can be identified within this programme:

1. Research into the most desirable method of the unification of law in the area of contract law and the law of obligations in general, in the light of the objectives of the EC.
2. Descriptive comparative legal research on the formation, content and non-performance of contracts and on the other sources of obligation (including the law of restitution).
3. Research into the influence of European instruments (in particular directives) on national law.

b. Programme revision

Over the last two years, a new focus has been given to each of the three main areas of research within the programme:

1. The initiatives of the European Union in the field of contract law have intensified: not only is the importance of European directives in this field increasing, the European Commission has also launched a debate on the future of European contract law. In the Communication on European contract law (2001), the Action Plan for a more coherent European contract law of 2003 and its follow up (2004), proposals have been made for the development of an Optional Contract Code and for the creation of a Common Frame of Reference. The research group aims to contribute to the debate on the shape of a future European private law that has been initiated as a result of these communications. In contrast to the Foundations research programme, the issue relating to the need for unification is for the most part not addressed in this programme. Attention is in particular given to the issues relating to the shape such a European code in the field of contract law should have. That applies not only to the content of such a code, but also to the way in which it is to be applied (e.g. opt in or opt out). Within the programme, particular attention is given in this context to certain 'long term contracts' (lease, franchise etc) and to sales contracts. Further questions concern the legitimacy of the code, the extent to which it will replace existing systems of contract law, and the consequences for national law. Doctoral research is also conducted into these issues.
   
   For the issue concerning the shape of a European contract code, special attention is given to how the interests of freedom of contract and the protection of the weaker party can be combined. It is also questioned to what extent such a code should provide rules for consumers as well as for commercial parties. From a practical perspective, there is also attention for the creation of rules for such a codification.
2. In the previous reporting period, a comparison of Belgian and Dutch law in the field of contractual remedies and the formation of contracts was undertaken. In the current reporting period, the focus has shifted to the content of the contract and the effects of the contract in relation to third parties. A large research project on those topics was carried out, in which close cooperation took place between the participating faculties. Doctoral research is also carried out in this field.
   
   Attention is also given to many other topics concerning the law of obligations. These include the pre-contractual stage, the sources of obligation, agency, termination, good faith and exclusion clauses. As much as possible is published on these topics, also from a comparative law perspective, in articles as well as in books and monographs.
3. The implementation of European directives remains a subject of research. There is particular attention for the European directive 1999/44 on consumer sales since this directive touches the core of national contract law.

Intended Results

The debate on European private law primarily takes place at an international level. In the view of the programme leadership, that means that it is essential that researcher not only participate in the national debate but also in the international debate. Consequently, a relatively large number of publications are in English: the explicit intention is to do international, pioneering work. The research group's aim is therefore to contribute not only to the shaping of a European private law (e.g. by taking part in the European Civil Code project) but also to critically follow and reflect on this process. Different views on the best way in which a uniform private law should be created are represented in the research group.

Academic reputation and the distribution of research results

The academic reputation of the research group is apparent in various ways. In the reporting period, Hondius and Hartkamp received honorary doctorates from foreign universities. The programme leaders are editors of leading academic journals (Hondius of among others the European Review of Private Law, Smits of the Maastricht Journal of European and Comparative Law). The members of the programme participate in a variety of international collaborative networks and have received external financing. More significantly, the publications that were realized within the programme play an important role in the international debate, and as a result of their academic achievements individual members are regularly invited to speak at international conferences, to act as visiting professors or to participate in assessment committees. In order to further the distribution of research results, the programme leadership strongly stimulates publication in international journals and series. The role that the programme fulfils nationally is also taken seriously: that is apparent from the relatively large number of textbooks that are produced within the programme, including the leading work in the field of Dutch contract law: Asser-Hartkamp 4-II (Algemene leer der overeenkomsten, 12th edition, 2005).

Relationship to the Research School

The Research School's central issue is to investigate the role of law in international integration processes. The European Law of Obligations research programme is situated within a field of private law in which European integration is advanced: many European private law directives deal with contract law. In addition, it is precisely within this field that the debate on the further development of a European private law takes place, in particular following the European Commission's Comunication (2001) and Action Plan (2003).

The relationship of this programme to some other research programmes within the school requires some elaboration. There is some overlap in substance but also in researchers with Foundations (in which Smits is also a coordinating programme leader) and Consumer Law (in which Hondius has a commanding influence). In the Foundations programme, research is also conducted into contract law, but then from a more theoretical perspective. In Consumer law, contract law is primarily considered from the perspective of the protection of the consumer and less from a general contract law perspective.

Effects of the cooperation

The cooperation within this programme has led to joint projects and publications and, in a general sense, has resulted in a higher level of research thanks to the exchange of ideas and joint scholarly discussion. The faculty research groups that participate in Contract Law are often perceived to be too small in the current period of 'focus and scaling up' to function as an independent research unit. Initiatives that cannot be undertaken by a faculty research group alone can take place through cooperation with the groups in other faculties.

Research facilities and resource apportionment

Conferences and workshops within this programme are primarily organized by the different faculties, but where necessary it is possible to fall back on support from the secretariat of the Research School (Maastricht). The Research School also finances conferences that fall within its mission. Researchers make frequent use of the libraries of the other faculties.