PP696
Analítico de Periódico
VAQUER, Antoni
Farewell to Windscheid? : legal concepts present and absent from de Draft Common Frame of Reference (DCFR) / Antoni Vaquer
European review of private law, Bedfordshire, v.17n.4(2009), p.487-512
DOCUMENTAÇÃO E INFORMAÇÃO
Bernhard Windscheid stood at the summit of the German pandectist school. He produced the very influential Lehrbuch des Pandektenrechts, which condensed the works of the authors belinging to the school, and took part in the commission charged with the redaction of the German Bürgerliches Gesetzbuch. The jurisprudence of concepts that developed the pandectist school created a series of legal concepts such as Rechtsgeschäft, subkektiva Rechte, Anspruch, which were incorporated successfully into the German BGB - legal concepts that later spread in Italy, Spain, Portugal, Greece and even The Netherlands. The Draft Common Frame of Reference (CFR) includes an Annex containing a glossary of legal terms that are used in the black letter rules. Article I-1:108 states that the definitions in the Annex "apply for all the purposes of these rules unless the context otherwise requires" and warns that "where a word is defined, other grammatical forms of the word have a corresponding meaning". The purpose of this paper was twofold. On the one hand, the paper discusses how much of the concepts elaborated by the pandectist school remains in the Draft CFR. The reason is that it is solemny stated that "[a]n attempt has been made to find, wherever possible, descriptive language which can be readily translated without carrying unwanted baggage with it". Since the conclusion is that most of the concepts elaborated by the German doctrine ca be found in the Draft CFR, the second purpose is to analyse the consistency of the use of the concepts in the black letter rules.