Copyright (c) 2009 All rights reserved. http://works.bepress.com/jan_smits Recent documents in Jan M Smits en-us Mon, 19 Oct 2009 23:19:09 PDT 3600 http://works.bepress.com/jan_smits/34 http://works.bepress.com/jan_smits/34 Sun, 18 Oct 2009 03:28:18 PDT Part Four of the draft for a new Czech Civil Code contains several provisions on unjustified enrichment. This contribution discusses these provisions in a comparative perspective and with reference to the Draft Common Frame of Reference for European Private Law. This article was translated into Czech by Lubos Tichy. Jan M. Smits Some Recent Publications in Other Languages than English http://works.bepress.com/jan_smits/33 http://works.bepress.com/jan_smits/33 Thu, 20 Aug 2009 04:26:46 PDT Over the last decade or so, many European countries have seen a growing influence of fundamental rights in contract, tort and property law. This development, sometimes referred to as the 'constitutionalisation' of private law, is often regarded as highly beneficial. It seems after all to be a noble idea to allow fundamental rights to play a role in relationships between private persons. However, the application of universal standards of what is regarded as fair in the relationship between the State and the citizen to private parties can also be looked at with suspicion. The aim of this contribution is to reflect on the desirableness of the constitutionalisation of private law and to show the adverse effects of this development. This article was translated into Chinese by Cheng Xueyang. Jan M. Smits Some Recent Publications in Other Languages than English http://works.bepress.com/jan_smits/32 http://works.bepress.com/jan_smits/32 Thu, 20 Aug 2009 04:01:52 PDT This contribution offers an overview of Dutch efforts in law reform in Central and Eastern Europe. Apart from the overview that is provided, these efforts are critically assessed. It thus tries to provide empirical materials to evaluate theories on legal transplants. This article was translated into Chinese by Leijie Wei. Jan M. Smits Some Recent Publications in Other Languages than English http://works.bepress.com/jan_smits/31 http://works.bepress.com/jan_smits/31 Thu, 20 Aug 2009 03:51:45 PDT This contribution focuses on European integration through private law. After a sketch of the existing European acquis in the field of the law of contract, tort and property, the question is discussed whether there is a need for harmonisation in view of the goals the European Union set itself. Subsequently, the question of how to design a future European private law is answered. In the field of contract law, the European Commission now follows a two-track policy: it intends to draft a 'Common Frame of Reference' ('CFR') as well as furthering the debate on the possibility of an optional code. It is debated what the contents of these two instruments should be and how they should be created, but also the more fundamental question as to whether they will really contribute to the solving of the present problems with the European acquis is touched upon. Finally, the influence of 'Europe' on national private law is looked at from a critical perspective. The author adopts the view that uniform private law should come about in a Hayekian way of a spontaneous legal order. This paper was translated into Catalan by Antoni Vaquer. Jan M. Smits Some Recent Publications in Other Languages than English http://works.bepress.com/jan_smits/30 http://works.bepress.com/jan_smits/30 Thu, 20 Aug 2009 03:43:06 PDT The Draft Common Frame of Reference for a European Private Law (DCFR) suffers from so-called methodological nationalism: the DCFR adopts a view of law and lawmaking developed for national jurisdictions and in doing so, it takes too little into account that what is best at the national level may not be optimal at the European one. The argument is made by reference to three different features of the DCFR: the idea of comprehensive codification, the choice of the relevant rules and the way in which law is represented. It is then argued that the DCFR should be presented in a differentiated way, dependent on whether its function is to create binding rules, offer a source of inspiration for legal scholarship and teaching or to take the first step towards the creation of an optional contract code. This paper was translated into Slowak by Milan Janco. Jan M. Smits Some Recent Publications in Other Languages than English http://works.bepress.com/jan_smits/29 http://works.bepress.com/jan_smits/29 Thu, 20 Aug 2009 03:31:16 PDT In oktober 2008 publiceerde de Europese Commissie een voorstel voor een Europese richtlijn consumentenrechten. Dit voorstel breekt met de huidige Europese praktijk van minimumharmonisatie: het beoogt een volledige harmonisatie van een aantal belangrijke terreinen van consumentenrecht. Deze bijdrage is kritisch over deze ontwikkeling. Bepleit wordt een gedifferentieerde benadering: of minimum- of maximumharmonisatie de voorkeur verdient hangt af van diverse factoren. (This article was published in Dutch.) Jan M. Smits Some Recent Publications in Other Languages than English http://works.bepress.com/jan_smits/28 http://works.bepress.com/jan_smits/28 Sun, 31 May 2009 05:17:51 PDT Academic legal scholarship increasingly relies on non-normative perspectives. This raises the question what is actually the core of academic legal scholarship and what methodology legal academics should adopt. In this contribution, it is argued that the focus in the present debate should not be on how other disciplines than the law can help us to make the academic study of law more 'scholarly.' Instead, the question should be how the legal approach itself can better match the expectations one has about a truly scholarly discipline of law. To this end, the purpose of normative legal scholarship is redefined. Jan M. Smits Legal Theory http://works.bepress.com/jan_smits/27 http://works.bepress.com/jan_smits/27 Sat, 30 May 2009 06:52:28 PDT This contribution contains an evaluation of Book VII (Unjustified enrichment) of the Draft Common Frame of Reference (DCFR) 2009. It was written as part of the evaluation carried out by the Common Core of European Private Law group in the context of the Joint Network on European Private Law (CoPECL). The explicit aim of this evaluation is to put the black letter rules of the DCFR to the test by applying them to a set of three hypothetical cases. On the basis of this analysis, several criticisms may be made, which we summarize by making three different points. First, the question of taxonomy is discussed. Secondly, it is questioned whether the DCFR fully grasps the function of the law of unjustified enrichment. Finally, we look into the function of the DCFR and what this function brings with it for dealing with restitutionary claims. Jan M. Smits European Private Law http://works.bepress.com/jan_smits/26 http://works.bepress.com/jan_smits/26 Sat, 14 Mar 2009 03:18:39 PDT This contribution looks into the Proposal for a European directive on consumer rights as published by the European Commission on 8 October 2008. It specifically questions the European Commission's ambition to turn consumer law into an area suited for full harmonization: is it really true that consumer law should be almost exclusively a European competence (as the Commission seems to suggest by proposing maximum harmonization in some important areas of consumer law) and no longer one shared by the EU and the member states? The adoption of the Consumer rights proposal would mean that the national legislatures and courts are no longer competent in setting diverging rules. This far-reaching consequence justifies the question of what is the best level of regulating consumer protection. It is argued that this is dependent on a number of factors and that the Commission's approach to fully harmonise this area because it is consumer protection is not adequate. Jan M. Smits European Private Law http://works.bepress.com/jan_smits/25 http://works.bepress.com/jan_smits/25 Fri, 20 Feb 2009 00:40:54 PST This is the original English summary of the PhD-thesis defended at Leiden University in 1995. The thesis aims to be a contribution to the fields of private law and legal theory. lts central theme is the question whether it is possible to give an alternative foundation to contractual liability, given the fact that the so called 'reliance principle' ('Vertrauensprinzip') does not meet the standards of legal dogmatics in an appropriate manner. Jan M. Smits Comparative Law