The subject-matter of this lecture is the fate of ideas about or from European contract law in a United Kingdom (UK) which ceased to be a Member State of the European Union (EU) on 31 January 2020 and then shortly afterwards shared the common European and indeed global experience of the coronavirus pandemic. Its main thrust is that, while in the UK Brexit has been a major setback to the idea of European contract law – indeed, European private law – the continuing pandemic provides an opportunity for Scots and English law to re-engage with the subject to find answers – or better answers – to the problems which they now face. The main substantive topics addressed are frustration of contract, equitable adjustment upon change of circumstances, and the requirements of good faith.
{"title":"Third Ole Lando Memorial Lecture: European Contract Law in the Post-Brexit and (Post?)-Pandemic United Kingdom","authors":"H. MacQueen","doi":"10.54648/erpl2022002","DOIUrl":"https://doi.org/10.54648/erpl2022002","url":null,"abstract":"The subject-matter of this lecture is the fate of ideas about or from European contract law in a United Kingdom (UK) which ceased to be a Member State of the European Union (EU) on 31 January 2020 and then shortly afterwards shared the common European and indeed global experience of the coronavirus pandemic. Its main thrust is that, while in the UK Brexit has been a major setback to the idea of European contract law – indeed, European private law – the continuing pandemic provides an opportunity for Scots and English law to re-engage with the subject to find answers – or better answers – to the problems which they now face. The main substantive topics addressed are frustration of contract, equitable adjustment upon change of circumstances, and the requirements of good faith.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42596180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A World of Payment Problems","authors":"M. Storme","doi":"10.54648/erpl2022001","DOIUrl":"https://doi.org/10.54648/erpl2022001","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48605722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The number of fraudulent payment transactions is increasing over Europe. In many cases it remains impossible to recover the amounts from the fraudster, so that the question arises whether the payment service provider (PSP) or the payment service user (PSU) must bear the risk. Within the EU, the second Payment Services Directive (PSD2) allocates liability between the PSU and the PSP. Important concepts when allocating liability are gross negligence and strong customer authentication. Equally important is the question who bears the burden of proof.
{"title":"Allocation of Liability in Case of Payment Fraud: Who Bears the Risk of Innovation? A Comparison of Belgian and Portuguese Law in the Context of PSD2","authors":"Reinhard Steennot, M. Guimarães","doi":"10.54648/erpl2022003","DOIUrl":"https://doi.org/10.54648/erpl2022003","url":null,"abstract":"The number of fraudulent payment transactions is increasing over Europe. In many cases it remains impossible to recover the amounts from the fraudster, so that the question arises whether the payment service provider (PSP) or the payment service user (PSU) must bear the risk. Within the EU, the second Payment Services Directive (PSD2) allocates liability between the PSU and the PSP. Important concepts when allocating liability are gross negligence and strong customer authentication. Equally important is the question who bears the burden of proof.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47662395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The one principle that is central to EU legislation on private international law, is that of mutual trust. States leaving the Union also leave that realm of mutual trust. That was the fate of the United Kingdom, as it officially left the union on 31 January 2020. UK Cross-border insolvency procedures started after the ending of the transition period on 31 December 2020 do not benefit from that principle anymore. The effect of these procedures in the different EU Member States is regulated by their own residual national framework. This article seeks to compare the recognition and execution frameworks of Belgium, Germany and the Netherlands. The question is raised whether further harmonization is needed.
{"title":"The Effects of Post-Brexit Insolvencies in Belgium, Germany and the Netherlands","authors":"Louise Castin","doi":"10.54648/erpl2022005","DOIUrl":"https://doi.org/10.54648/erpl2022005","url":null,"abstract":"The one principle that is central to EU legislation on private international law, is that of mutual trust. States leaving the Union also leave that realm of mutual trust. That was the fate of the United Kingdom, as it officially left the union on 31 January 2020. UK Cross-border insolvency procedures started after the ending of the transition period on 31 December 2020 do not benefit from that principle anymore. The effect of these procedures in the different EU Member States is regulated by their own residual national framework. This article seeks to compare the recognition and execution frameworks of Belgium, Germany and the Netherlands. The question is raised whether further harmonization is needed.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42077773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In its Krone judgment, the Court of Justice interpreted the Product Liability Directive to determine whether a copy of a newspaper containing incorrect paramedical advice constitutes a defective product within the meaning of the Directive. The negative answer given by the Court is correct, although not all the arguments in support of it are convincing, and others can be identified. The issue of defining product and defect is central to the application of the Directive, and the Court’s views may also be of some use in the discussion on its modernization.
{"title":"Product Liability for Information products?: The CJEU Judgment in VI/KRONE -Verlag Gesellschaft mbH & Co KG, 10 June 2021 [C-65/20]","authors":"P. Machnikowski","doi":"10.54648/erpl2022007","DOIUrl":"https://doi.org/10.54648/erpl2022007","url":null,"abstract":"In its Krone judgment, the Court of Justice interpreted the Product Liability Directive to determine whether a copy of a newspaper containing incorrect paramedical advice constitutes a defective product within the meaning of the Directive. The negative answer given by the Court is correct, although not all the arguments in support of it are convincing, and others can be identified. The issue of defining product and defect is central to the application of the Directive, and the Court’s views may also be of some use in the discussion on its modernization.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45262729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The matter of payment services and, especially, the liability regime for unauthorized digital payment transaction(s) is regulated by a multi-level system of rules, comprising European legislative acts (Directive 2015/2366 second Payment Services Directive (PSD2) and the national rules transposing the EU rules), European non-legislative acts (regulatory agencies: Delegated Regulations, Regulatory Technical Standards [RTS], Guidelines, Opinions, Questions and Answers), and the pre-existing general national rules on private relationships. The matter is subject to multiple potential observation points: the tension and coexistence of national rules and supranational regulations; the effect the variety of sources and the fragmentation of governance in the financial market have on the interplay of sources and the theory of interpretation; the regulatory force of soft law.
{"title":"Restitution and Liability in the Multilevel Regulatory Framework of Unauthorized Digital Payment Transactions","authors":"Maria Cecilia Paglietti","doi":"10.54648/erpl2022006","DOIUrl":"https://doi.org/10.54648/erpl2022006","url":null,"abstract":"The matter of payment services and, especially, the liability regime for unauthorized digital payment transaction(s) is regulated by a multi-level system of rules, comprising European legislative acts (Directive 2015/2366 second Payment Services Directive (PSD2) and the national rules transposing the EU rules), European non-legislative acts (regulatory agencies: Delegated Regulations, Regulatory Technical Standards [RTS], Guidelines, Opinions, Questions and Answers), and the pre-existing general national rules on private relationships. The matter is subject to multiple potential observation points: the tension and coexistence of national rules and supranational regulations; the effect the variety of sources and the fragmentation of governance in the financial market have on the interplay of sources and the theory of interpretation; the regulatory force of soft law.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44412602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: André Janssen/Hans Schulte-Nölke (Hrsg.). Researches in European Private Law and Beyond. Contributions in Honour of Reiner Schulze’s Seventieth Birthday","authors":"Susana Navas Navarro","doi":"10.54648/erpl2022009","DOIUrl":"https://doi.org/10.54648/erpl2022009","url":null,"abstract":"<jats:p />","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46232453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The current increase in global infertility rate and the consequent access to medically assisted procreation have contributed to the fragmentation of the reproductive process. This is also due to the development of cryopreservation techniques for gametes and embryos, whose use is therefore progressively delayed over time, sometimes even after the death of one of the partners. However, few European countries permit post mortem fertilization. Following a reconstruction of the legislation of those EU Member States allowing the practice, this contribution focuses on the jurisprudential reaction in countries, such as France, Germany and Italy, where post mortem fertilization is prohibited by the legislature. In doing so, the role of informed consent is highlighted, especially where it was not expressed by the deceased, due to an unexpected and sudden fatal event, and the surviving partner wants a child from the deceased. Based on a comparison with the findings of US scholars, this article elaborates further on the advantages of the default option in gamete retrieval for procreative purposes, which is increasingly requested also by parents looking for genetic continuity. Perceived differently outside the Western legal tradition, the lack of offspring opens the doors to recognize the interest of pursuing by post mortem fertilization a family genetic heritage.
{"title":"The Unbearable Lightness of Informed Consent in Post Mortem Fertilization","authors":"E. Grasso","doi":"10.54648/erpl2021049","DOIUrl":"https://doi.org/10.54648/erpl2021049","url":null,"abstract":"The current increase in global infertility rate and the consequent access to medically assisted procreation have contributed to the fragmentation of the reproductive process. This is also due to the development of cryopreservation techniques for gametes and embryos, whose use is therefore progressively delayed over time, sometimes even after the death of one of the partners. However, few European countries permit post mortem fertilization. Following a reconstruction of the legislation of those EU Member States allowing the practice, this contribution focuses on the jurisprudential reaction in countries, such as France, Germany and Italy, where post mortem fertilization is prohibited by the legislature. In doing so, the role of informed consent is highlighted, especially where it was not expressed by the deceased, due to an unexpected and sudden fatal event, and the surviving partner wants a child from the deceased. Based on a comparison with the findings of US scholars, this article elaborates further on the advantages of the default option in gamete retrieval for procreative purposes, which is increasingly requested also by parents looking for genetic continuity. Perceived differently outside the Western legal tradition, the lack of offspring opens the doors to recognize the interest of pursuing by post mortem fertilization a family genetic heritage.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48295335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Clayton P. Gillette, Advanced Introduction to International Sales Law","authors":"Eirik Wold Sund","doi":"10.54648/erpl2021050","DOIUrl":"https://doi.org/10.54648/erpl2021050","url":null,"abstract":"<jats:p />","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49355085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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