The question regards European contract law in the sense of a harmonized or codified contract law. Many scholars have tried to provide an answer and, given the vast amount of literature on the subject, we cannot say who are more numerous: the supporters of European contract law, or the supporters of the current situation, which brings with it the approval of tradition, and favours diversity. In this case numbers certainly do not decree who is right and who is wrong. What does is the weight of arguments, their persuasiveness and rationality. We must first, however, clear up some perplexities.
The first arises from the connection between the construction of a European contract law and the choice of an applicable law for negotiation between parties. If everything could be resolved by applying the regulations of private international law to establish the law of the contract, the problem of European contract law would simply not arise. However, the problem does exist and it is different from a simple ‘choice of law’.
What is under discussion is not which law is applicable, because a ‘model code’ established at a European level could also become the law chosen by the parties and applied to their contract. On the contrary, the rules of private international law do not function so simply and the choice of the applicable law could be imposed by one party on another. Furthermore, what we want to avoid is the real aim of private international law: not choosing between laws, but establishing a single law for everyone. Or least building a solid, minimal base on which to set special rules that do not disappear into space, but have a ‘safety network’ around them, a way to interpret and apply them correctly and in a uniform manner to all countries that are members of the European Union (EU).
The second perplexity regards the ‘beauty’ or ‘inalienability’ of diversity: the assumption of ‘the virtue of diversity’ has become a cliché.
Once again we are outside our area and this is not the problem to resolve. Comparison is like a mine, knowing how to compare is a great quality and using the results of comparison is a great wealth, but this science (or method) does not come into play in our case. We do not want to ignore, or even worse, emarginate national traditions and the origins of national legal culture. The great codes are the history of our legal systems and the grands arrets have marked their evolution. We are considering how to act in order that goods and services can circulate on the basis of uniform rules, not rules that are ‘different’ amongst themselves. Furthermore, if we accepted only the advantages of diversity (in rules) there would be no need for conventions, multilateral agreements or even the so called uniform law.