The Wilson Memorial Lecture was given yesterday by Sonja Meier of the University of Freiburg on the theme of “Unwinding failed contracts – new European developments”. It was a brilliant performance, beautifully delivered, perfectly timed and, above all, cogently argued.
Taking the Swiss draft Obligationrecht 2020 and the recent reform of the French law of obligations as her starting points the speaker explored in a historical, comparative and analytical way the question of whether it was better to have a uniform regime for the unwinding of failed contracts – whether the reason for the unwinding was nullity, voidability, termination for fundamental non-performance or frustration – or to have two different regimes. This is a particularly interesting question at present because, as the speaker noted, different soft-law instruments have adopted different approaches. The PECL, the PICC and the DCFR adopted a split approach. The Gandolfi code and the proposed CESL adopted a uniform approach, as did the draft rules on unjustified enrichment in the Appendix to the Scottish Law Commission’s Discussion Paper No. 99 in 1994.
The speaker noted that both the Swiss draft and the French reform adopted a uniform approach, although differing in details. She analysed the issues which had to be resolved from a functional perspective and concluded that there was no need to have a split approach.
If there is no need to have a split approach then clearly it is more efficient and more sensible to have a uniform set of rules. Functional considerations should prevail over doctrinal ones.
There was a great deal in this lecture. It will repay careful reading when it is published. In its elegant and rigorous analysis it was a most fitting tribute to the late Bill Wilson.