The principles of the draft of the specific part of the law of obligation : in the process of searching for the new model

Streszcz. ang. s. 59-60

This paper presents a proposal for the new approach in the process of regulating the specific part of the law of obligations. The authors are start with the assumption that the existing way of governing contracts is not sufficient. It is necessary to acknowledge the growing relevance of the services and declining position of the contract of sale. This shift needs to be reflected in the new structure. It is also necessary to adjust the proposed structure to the specifics of the law of the European Union. The acquis communautaire in the area of the contract law does not stipulate the classical contracts but certain situations where the protection of the weaker party is required. In the acquis, even the contract for package travel is not a typical type of contract, but rather description of certain situations which activate the application of the protective tools. The paper presents the structures of the contract's regulations in numerous codifications. It also analyzes the recent European drafts, such as DC FR, the Acquis Principles and the proposal for the Common European Sales Law (Optional Instrument). It presents the approach inspired by the "mirror structure of the Acquis Principles". The essence of this approach is to provide only those rules that are evidently modifying the provisions of the general parts of the codes. It does not address the "essentialia negotii" of the contracts but rather tries to provide an "open" structure that is easy to be developed. The contracts, however, are divided into certain groups. In the second part of the paper the special situations are presented where the protection of the weaker party is required. Authors also suggest developing statutory standard terms on specific contracts, commonly used in practice, with the legal guarantee of their correctness and validity. This would serve as an instrument replacing the missing types of contracts in the traditional sense without reintroducing the inflexible typology.