Abstract

This paper explains the evolution of the roles of principles in the Draft Common Frame of Reference and the proposed Common European Sales Law, the latter of which identifies three «general principles» and as well as «underlying principles». In the CESL, «general principles» have three roles: a political role, setting out the need for a balance between a liberal view of contract and a more «social» view; a legal cultural role, setting the CESL firmly within the European continental civil law tradition; and a directly normative role, sometimes requiring a court to decide in a way which the CESL's rules would not otherwise require. Moreover, «general principles» are also seen as «underlying principles» for the purposes of the interpretation of the CESL's substantive rules and are, therefore, relevant to the settling of issues within the scope of the CESL but not otherwise settled by it, an interpretative approach seen as necessary to achieve the uniform scheme of regulation deemed necessary for the internal market. In the author's view, the economic benefits intended to be generated by such a uniform law would bear a constitutional cost, the CESL requiring the Court of Justice to take an overtly creative role in its future interpretation.