1 Action Plan on a More Coherent Contract Law (COM (2003) 68 finalA project in Europe Action Plan on a More Coherent Contract Law (COM (2003) 68 final

2 Acquis group A Restatement of existing provisions(in regulations, directives, and European case-law), on issues related to contract (http://www.acquis-group.org/) To provide more consistency, more systematic structure (by European, not German standards). A language that does not contradict itself.

3 Article 2:201: Duty to inform about goods or servicesBefore the conclusion of a contract, a party has a duty to give to the other party such information concerning the goods or services to be provided as the other party can reasonably expect, taking into account the standards of quality and performance which would be normal under the circumstances.

4 Article 2:208: Remedies for breach of information duties(1) If a business is required under Article 2:203 (information duties towards disadvantaged consumers) and 2:204 to provide information to a consumer before the conclusion of a contract from which the consumer has the right to withdraw, the withdrawal period does not commence before all this information has been provided. This does not postpone the end of the withdrawal period beyond one year counted from the time of the conclusion of the contract. (2) If a party has failed to comply with its duties under Article 2:201 to 2:204, and a contract has been concluded, this contract contains the rights and obligations which the other party could reasonably expect as a consequence of the absence or incorrectness of the information. (3) Whether or not a contract is concluded, a business which has failed to comply with any duty imposed by the preceding Articles of this Section is liable to the other party for reliance damages. The rules on damages for non-performance of a contractual obligation apply accordingly.

5 “SHALL” G. EÖRSI, ‘Unifying the Law. A Play in One Act, With a Song’, 25 (1977) American Journal of Comparative Law, 658ff.): “a dog shall bark” can convey 4 different meanings: 1) a duty or obligation: dogs must bark, (2) a discretion: dogs may bark; (3) a weak or toothless duty: dogs should bark, but there are no consequences if they do not, and (4) a fact or consequence: dogs will bark.

6 even such an ordinary notion may not coincide across countriesDomicile even such an ordinary notion may not coincide across countries Sometimes it corresponds to what “residence” would be, by English standards. Even the expression “qualification”, may be confusing when it actually means “limitation”, as in the case of a prescription being qualified by exceptions.

7 Rectification rectification of a contract: “a party can apply in equity for a rectification of a written contract and he will succeed if he can prove by the strongest oral evidence that it does not properly reproduce the terms of an oral agreement” (Lawson, 1951). [“reformation”, in the USA?] LAWSON, The Rational Strength of English Law, Londra, 1951, p. 55 [a discretionary measure granted by the court] [“reformation”, in the USA?]

8 Same words, different meanings: a common complaintRegulation (for primary legislation) Remedy (for adjusting performance, rather than damages) Creditor/debtor (of performance) Professionista (for business) Warranty and guarantee

9 Variable meanings (within national borders)“conversion” [in common law] “invention” [in civil law] “compensation” [in civil law] “merger” Conversion in torts law and in trust law, and in religious context, and in traffic circulation (“conversione di mezzi pesanti”/U-turn) Invenzione. In property law (finding), in intellectual property (patent law) Confusion: in property law (things, such as grain or wine, become mixed) and in obligation (debtor and creditor coincide) Compensation: reward/extinguishing of obligation because of reciprocal debts and credits (“set off” in common law) Confusione: in easements (estinzione della servitù) and in obligations (estinzione del credito per confusione del creditore e debitore)

10 By any measure, conversions must improveRose Wild , The Times, Saturday 25 February 2012, “Opinion” It concerns the so called “imperial measurements” and the metric system

11 Merger clause “A contract in writing which contains a clause indicating that the writing completely embodies the terms on which the parties have agreed, cannot be contradicted or supplemented by evidence of prior statements or agreements. However, such statements or agreements may be used to interpret the writing”. UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS 1998, ARTICLE [Integration clause, full incorporation, whole contract clause, entire agreement] Integration clause, full incorporation

12 Distrust in EU process? The pedantic reaction to linguistic innovation introduced by the EU may be caused by lack of transparency in the European legislative process … But within national borders we are not always very keen in following the preliminary works (travaux préparatoires) The fair side of innovation carried by EU sources is that we use now currently “effet utile”, “acte clair”, “acquis communautaire”, “European estoppel”, proporzionalità, sussidiarietà, all terms derived from the EU language

13 Lack of experience Within the EU: not great experience in co-drafting of legislation in different languages (apart from Belgium, and Cataluña), not much confidence in drafting in different languages (in Italy we only have developed a minor competence in Alto Adige/Süd-Tirol)

14 Court of Justice of the EU – A. 19 [Lisbon Treaty]A Court of Justice including: the Court of Justice the General Court the Civil Service Tribunal (http://curia.europa.eu/jcms/jcms/Jo2_6999/) Corte di Giustizia comprensiva di: Corte di Giustizia Tribunale/Tribunal (“Tribunal General” in Spain) Tribunale del funzionamento A puzzling result: a Court of justice which includes a court of Justice, and a General court which is called Tribunale in other languages

15 Common complaint The language of the EU inclines to some Latin:“to permit” rather than to “allow”; “inertia selling” ( for “unsolicited goods”). Many nouns, rather than verbs: “Further reflection on the opportuneness of non-sector specific measures such as an optional instrument in the area of European contract law”. Par. 4.3, Communication by the Commission to the European Parliament and the Council on “A more coherent contract law – An action plan” (GUCE C 63 del ), p. 15:

16 Plain Language International Association“Keep the subject and verb close together … Keep sentences under 35 words … Use verbs instead of nouns for your action”. STEPHENS Cheryl, An Introduction to Plain Language, on-line, 27 April 2003: on “rewriting”:

17 Bureaucratic language“in written form or by means of a durable medium” (Distance selling Directive 97/7/EC of 20 May 1997, “recital” n. 13 & art. 5,1); The consumer should be able to take an “informed transactional decision” (Commercial Practices Directive, 2005/29/EC, Article 7, 1) In Acquis principles we tried avoiding “informed transactional decision’ [ rather ‘an informed decision on whether to enter into a contract’ (Art. 2:202 para. 1)].

18 Regulation 1924/2006 on nutrition and health claims made on foodsRecital 15 this Regulation takes as a benchmark the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice, … but makes provision to prevent the exploitation of consumers whose characteristics make them particularly vulnerable to misleading claims.

19 Constraints When working as legal drafter one realizes that there are certain limits to the possible choices, especially where a certain case-law has already been established and a change in terminology would be unsettling; [costs of “returning the goods”] Ex. (“the cost of returning the goods that are not conforming will be on the seller”: even when the seller is paying and it would be more appropriate to say “to recover”) Article 8:B-03 ACQP: Return of replaced goods (1) Where the supplier has replaced non-conforming goods, the supplier has both the right and the obligation to take back the replaced goods at the supplier’s expense. (2) If the supplier is a business and the recipient a consumer, the recipient is not liable to pay for any use made of the replaced goods prior to the replacement.

20 iate Some clarification may be found by searching the European data base

21 Comparing different versionsThe Court of Justice: it is legitimate for judges to consult other linguistic versions to decide on an obscure meaning: Regina v. Pierre Bouchereau, case 30-77, decision of 27 October 1977, ECJ Reports 1977, p. 1999

22 W. Robinson http://www.opc.gov.au/calc/docs/Loophole-Feb2011.pdf“derogate” is used for “repeal” (influence of Spanish), “motives” for “statement of reasons on which an act is based” and “visas” instead of “citations” (influenced by various Romance languages), or “guideline” for “directive” (influence of German and Dutch). Accessibility of European Union legislation The contamination between English and other languages works in both directions

23 Payment’s delay In some EU directive the expression is used to indicate the performance date (not that the payment will be late, after expiration of the final date) (délai: in French indicates the final date, the time limit within which an obligation has to be fulfilled).

24 A string of substantivesFor foreigners, a specific difficulty: many nouns follow each other in a row. “class-action equal protection suit” “charitable remainder annuity trust” “q(ualified) t(terminable) i(interest) p(roperty) trust” payment service provider's liability for unauthorised payment transactions: Liability of the payment service provider for unauthorized payment ... (art. 8 G 04, Acquis Principles)

25 A linguist in bilingual QuébecLes langues germaniques ... pratiquent … l'antéposition du modifiant sans préposition. …. pour le français une ambiguïté que celui-ci ... résout par le choix de la préposition : a wine glass = un verre à vin, the wine list = la carte des vins. The Monroe Doctrine est la doctrine de Monroe, tandis que the Social Security Act, ... aux États-Unis (1935), correspond ... à la loi (française) de 1928 sur les assurances sociales. (Jean DARBELNET) Conseil de la langue française, Langage du droit et traduction, Niveaux et réalisations du discours juridique, par Jean DARBELNET

26 European vocabulary Effet utile, spill over effect, acte clair, proportionality, subsidiarity, States’ estoppel effect …