Möslein, Florian --- "Legal Innovation in European Contract Law: Within and Beyond the (Draft) Common Frame of Reference" [2010] ELECD 225; in Micklitz, Hans-W.; Cafaggi, Fabrizio (eds), "European Private Law after the Common Frame of Reference" (Edward Elgar Publishing, 2010)

Book Title: European Private Law after the Common Frame of Reference

Editor(s): Micklitz, Hans-W.; Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444072

Section: Chapter 9

Section Title: Legal Innovation in European Contract Law: Within and Beyond the (Draft) Common Frame of Reference

Author(s): Möslein, Florian

Number of pages: 28

Extract:

9. Legal innovation in European contract
law: within and beyond the (Draft)
Common Frame of Reference
Florian Möslein

I. DYNAMICS OF CHANGE AND LEGAL INNOVATION:
A NEVER-ENDING PROCESS
The plea for a modern legislative framework for European contract law is on
almost everyone's lips, articulated by supporters of the Common Frame of
Reference (CFR) as well as its critics.1 If one important function of contract
law is to reduce transaction costs, the need to mirror actual market reality
seems indeed rather obvious.2 In this perspective, modern types of contracts,
modern governance instruments of contractual relationships as well as modern
drafting techniques should promptly be reflected in the contract law provided
by the legislator. Responsiveness to actual market developments seems partic-
ularly relevant on the European level: due to the allocation of competences,
European contract law must effectively contribute to the establishment and the
proper functioning of the Internal Market,3 for instance by reducing negotiat-
ing costs of international transactions.4 Moreover, the legislative project of the
CFR is explicitly linked to the so-called Lisbon agenda with its strategic goal
to make the EU `the most competitive and dynamic knowledge-based econ-
omy in the world'.5 A modern approach seems paramount for a future


1 On the one hand, for instance: COM(2007)447 final, at p. 11 (`coherent
modern rules of contract law'); on the other: Grundmann (2008), p. 246.
2 For general discussions of the relationship between default rules and hypo-
...