European Contract Law: Are No Oral Modification Clauses Not Worth the Paper They Are Written On?

Abstract

Mephistopheles: But one thing still: in case of life or death, I pray Give me a written line or two . Faust: What, pedant! Something written do you ask of me? Was neither man nor word of man yet known to you?1 After initial hesitations, 2 the European Commission now seems determined to force the pace in European contract law harmonization. 3 It is still unclear whether the European Union is heading for non-binding model rules, a binding or non-binding toolbox for the EU legislator, a recommendation of a model law, an optional instrument as the so-called ‘28th system’, 4 an EU Directive on contract law, or – least likely of all – full harmonization by way of an EU Regulation on Contract Law or ‘[t]he creation of a full-fledged European Civil Code, replacing all national rules on contracts’. 5 It is, however, increasingly likely that the EU is going to take harmonizing action in some form in the area of contract law. The next step is the drafting of a Common Frame of Reference, the adoption of which was initially envisaged for 2009, was then postponed to 2010, and now is unlikely to be finalized before 2012. 6