45 Contracts and obligations

A feature of this division of material is a clear distinction between a contract seen as a type of agreement a type of juridical act — and the legal relationship, usually involving reciprocal sets of obligations and rights, which results from it. Book II deals with contracts as juridical acts; Book III deals with the obligations and rights resulting from contracts seen as juridical acts, as well as with non-contractual obligations and rights. To this extent a structural division which in the PECL was only implicit is made explicit in the DCFR. Some commentators on the Interim Outline Edition called for a simpler structure more like that of the PECL, one which, at least in relation to contracts and contractual obligations, would follow a natural ‘chronological’ order. However, it has to be noted that the DCFR does in fact follow such an order. It begins with the pre-contractual stage and then proceeds to formation, right of withdrawal, representation (i. e. how a contract can be concluded for a principal by a representative), grounds of invalidity, interpretation, contents and effects, performance, remedies for non-performance, plurality of debtors and creditors, change of parties, set-off and merger, and prescription. This is essentially the same order as is followed in the PECL. The only difference is that the DCFR inserts a break at the point where the rules cease to talk about contracts as agreements (formation, interpretation, invalidity, contents and effects etc.) and start to talk about the rights and obligations arising from them. At this point a new Book is begun and a new Chapter on obligations and corresponding rights in general is inserted. It is not an enormous change. It hardly affects the order or content of the model rules. And it is justified not only because thereis a difference between a contract and the rights and obligations arising out of it, and it is an aid to clarity of thought to recognise this, but also because it is useful to have the opening Chapter of Book III as a home for some Articles which are otherwise difficult to place, such as those on conditional and time-limited rights and obligations. To eliminate the break between Books II and III would be a regrettable step backwards for which it is difficult to see any justification.