The Common European Law of Torts: The Core Areas of Tort Law, Its Approximation in Europe, and Its Accommodation in the Legal System - Vol. 1

By Christian Von Bar | Go to book overview

Preface

This attempt to draw up a system of a common European law of torts is an orthodox treatise on the non-contractual law of obligations. This book displays distinctive features only in so far as its material stems from all the laws of tort within the European Union. It seemed possible to understand and portray each tort law as merely a national manifestation of a single discipline. For, although different legal practices which have each grown naturally in their own environment do occasionally lead to different results, they can be dealt with in the same way as a single legal system in which a lawyer has to find his way through a variety of opinions. The person who looks, not only at his own, but also at surrounding laws, broadens the range of possible debate. In writing about different laws he undertakes work which is fundamentally no different from that on his own legal system, so long as the systems are equal in their basic values, in the quality of their legal method, and have continuously learned from each other. This is the case in the countries of the European Union, and it is therefore possible to condense their different national laws to a common European law of torts, or delict. To try to understand its structures does not mean leaving distinctive features of individual national laws out of consideration. Without an understanding of their effectiveness and their elegance, the treasure of judicial knowledge, which distinguishes European private law, will not be appreciated. However, to think in a European fashion means first to stress the common characteristics, secondly, to understand national laws as reactions to developments in neighbouring countries, and thirdly, to tackle historical coincidences and rough edges, which, in view of the process of European unification, can be ground down without substantial loss.

European legal politics is not our primary concern, and the question whether reflections on common European private law can flow into a 'general' law, that is to say into an extensive unification of law in the fashion of a Civil Code, is altogether a cura posterior. The challenge is to identify how the sixteen systems actually function, not how they would function if they were united in one system. In our Permanent Seminar on the European Common Law of Torts we tried to master the wealth of material. I have portrayed its methods in another place (in: v. Bar, A Common European Law of Tort, Rome 1996, Centro di studi e ricerche di diritto comparato e straniero, saggi, conferenze e seminari). The participants--splendid young lawyers from all parts of the European Union-- helped me not only with the investigation of the judgments, but also corrected my drafts and helped with the collection of the latest SYSTEMations. Despite their invaluable help the danger of my drawing false

-xxiii-

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