13 The approach taken by the Principes directeurs

The Association Henri Capitant and the Société de législation comparée published their Principes directeurs du droit européen du contrat early in 2008.12. We will refer to these as the Principes directeurs to distinguish them from the principles we later discuss. The evaluative group charged with this project approached their task by distilling out the main principles underlying the Principles of European Contract Law, and comparing them with equivalent principles from a number of national systems and international and European instruments.13. They identified three main principles — liberté contractuelle, sécurité contractuelle et loyauté contractuelle — contractual freedom, contractual security and contractual ‘loyalty’ — each with sub-principles. The word ‘loyalty’ is within quotation marks because it does not fully capture the French word loyauté in this context. The key elements are good faith, fairness and co-operation in the contractual relationship. Loyauté comprises a duty to act in conformity with the requirements of good faith and fair dealing, from the negotiation of the contract until all of its provisions have been given effect, a prohibition on using contractual rights and terms in a way which does not respect the objective that justified their inclusion in the contract and a duty to co-operate so far as necessary for the performance of the contractual obligations; it also requires a party not to act in contradiction of prior declarations or conduct on which the other party might have legitimately relied.14. The principles and sub-principles were expressed in eleven draft articles drafted in such a way as to be suitable for insertion in one block at the beginning of model rules. The approach adopted by the evaluative group is very attractive. The principles are expressed in an elegant, resonant and focussed way. They are backed up by persuasive analysis and discussion. However, we think that the approach, and to some extent the substance, has to be slightly different for the purposes of the DCFR. There are two reasons for this. First, the Principes directeurs relate only to contract law. For the purposes of the DCFR a statement of underlying principles has to be wide enough to cover also non-contractual obligations and aspects of property law. Secondly, it does not seem appropriate to incorporate the governing principles as a block of actual model rules at the beginning of the DCFR. They function at a different level. They are a distillation from the model rules and have a more descriptive function. They sometimes overlap and often conflict with each other. Almost all of the sub-principles, it is true, have direct counterparts in Articles of the DCFR but those Articles appear in, and are adapted to, particular contexts where they may be subject to qualifications and exceptions. It would weaken the DCFR to extract them and put them in one group at the beginning: it would clearly be undesirable to duplicate them. Moreover those Articles are by no means the only ones which reflect and illustrate underlying principles. A discursive approach seems more appropriate for an introductory statement of principles of this type. This was the clear preference of the Compilation and Redaction Team and the Co-ordinating Committee of the Study Group when they discussed this matter in April and June 2008.