Presa di posizione sul futuro del CFR

Abstract

The first option outlined in the questionnaire (consisting basically in the publication of the results of the work of the group of experts on the Commission’s website, accompanied by efforts aimed at promoting the CFR as source of inspiration for the European legislator as well as point of reference for the study of law at universities) already goes too far. This view can be justified as follows: According to the drafters of the CFR themselves, the CFR is supposed to “help to show how much national private laws resemble one another and have provided mutual stimulus for development and indeed how much those laws may be regarded as regional manifestations of an overall common European legacy”. Although those may have been the intentions of the drafters, the CFR does not always bear witness of those intentions. By way of example, it may suffice to recall the definition the CFR provides for what I believe to be one of the most important elements of the CFR itself, more specifically, the obligation, the definition of which does not compare anymore to the one known to all of us, the origins of which can the traced to Roman law, and upon which the civil law tradition is based. Rather, the CFR defines the obligation as “a duty to perform which one party to a legal relationship, the debtor, owes to another party, the creditor”. “Officially”, this is due to the fact that “Sometimes the word ‘obligation’ is used as the correlative of a right to performance. Sometimes the word ‘obligation’ is used to denote the whole legal relationship between the debtor and the creditor. This usage, although traditional and eminently respectable, appears to be less frequent in modern European and international legal instruments”. It is questionnable, however, whether that is the real reason. It may well be due to the fact that, to use the words employed by Zimmermann, “Today the technical term ‘obligation’ [on the basis of the Justinian definition] is widely used to refer to a two-ended relationship which appears from the one end as a personal right to claim and from the other as a duty to render performance. The party ‘bound’ to make performance is called the debtor (debitor, from debere), whilst at the other end of the obligation we find the ‘creditor’, who has put his confidence in this specific debtor and relies (credere) in the debtor’s will and capacity to perform. As far as the Roman terminology is concerned, ‘obligatio’ could denote the vinculum iuris looked at from either end; it could refer to the creditor’s right as well as the debtor’s duty. This obviously makes it somewhat difficult to render the Roman idea in English, for the English term ‘obligation’ is merely oriented towards the person bound, not towards the person entitled. With the words ‘my obligation’ I can refer only to my duties, not to my rights”. The foregoing remarks allow me to introduce another issue which I believe to be a rather important one, namely that of the language. The CFR was drafted solely in English (or, as some would say, in “globish”, that is to say in the English spoken by those whose native language is not English), the language that in my opinion – but it appears that I am not the only one to hold this view – is the least suitable for expressing concepts of continental-European civil. This choice in favor of the English language had a very strong impact on the CFR. What has just been said in respect of the concept of “obligation” holds true as regards very many other concepts contained in the CFR. And I am convinced that if one had decided to draft the text from the beginning in three languages (I am not suggesting here that the text should have been drafted in Italian, but at least in French and German), the final result would have been less criticizable. The CFR can be criticized not only for the definitions employed, but also for the system that has been adopted. One again, it may be sufficient to give just one example. This examples relates to one of the areas which, in light of its impact on the economy, is central. I am referring to the service contracts. In effect, the part of the CFR dedicated to contracts relating to the provision of services, which contains some general rules applying to service contracts in general, covers, to name just one aspect, both contracts under which one party undertakes to provide medical treatment for another party and contracts under which one party undertakes to store a movable or incorporeal thing. One has to wonder what these two types of contract have in common, apart, of course, from the fact that one party undertakes to provide a service. In light of this, the mandate as well could have been dealt with in the part of the CFR dedicated to contracts for the provision of services, since, when concluding a contract on behalf of the principal, the agent, too, provides a “service”. Still, the CFR contains a different part specifically dedicated to the mandate (or, more precisely, to “Mandate contracts”). Traditionally, various contracts are grouped together into a unit when they constitute a variation of the same nominate contract. As regards the Italian civil code, this is true for instance in respect of the chapter dedicated to the mandate which, apart from the mandate, also covers forwarding contracts. As for the BGB, it may suffice to recall that the section dedicated to “Werkvertrag und ähnliche Verträge” also covers, for instance, the “Werklieferungsvertrag”. That, however, is not the rationale behind the groupings of the various types of contracts found in the CFR. This is evident, if one considers, for instance, that it is rather hard to argue that contracts for the provision of medical treatment constitute a variation of the storage contract. The CFR has taken an approach that differs from the traditional one. The various groups have been created with the object of the contracts