INTRODUCTION

The present volume brings together a number of contributions originating from a conference on “Testing the stress of the EU – EU law after the financial crisis”’. They do so by looking at the general theme from different angles, by focusing on different areas of law, and by asking different questions: What impact does the financial crisis have on EU law? How are the manifold problems resulting from the financial crisis addressed by the EU and by EU law? And which legal problems – even though they might have already been known before the crisis – have come to the centre of our attention? Thus, the contributions of the present volume do not simply address fiscal or monetary problems from legal perspectives. They go beyond that: insolvency law, merger control, consumer law, tax law, free movement of persons, and patent law are just some of the many areas of law which the contributions touch upon. I will add yet another perspective: what – direct or indirect – impact does the financial crisis have on private law and, more specifically, on European private law?

As a starting point I would like to pick up a distinction which Paloma García Picazo draws in her contribution, although I will interpret this distinction slightly differently than she does. She asks whether one should talk of the crisis of Europe or merely of a crisis in Europe. Indeed, the general theme of the present volume is “EU law after the financial crisis”. The idea of Europe and the EU cannot be reduced to fiscal or monetary matters. Both the idea of Europe and the EU go beyond fiscal and monetary questions. With this starting point one may argue that the financial crisis has initially been simply a crisis in Europe. Of course, a crisis in Europe which is at first confined to a very specific area can have the potential to develop into the crisis of Europe as a whole – extending to every facet of it. However, that is the very question I wish to address in my contribution with a view to European private law. Has the financial crisis had an impact on European private law? Or even more dramatically, is there a crisis of European private law today?

This contribution addresses the question how the defence of change of position can apply when a mutual contract is unwound. The following hypothetical case, illustrated in Figure 9.1, should make the problem clear. A and B have agreed to swap A's cow for B's horse. Both have fully performed their respective obligations. A has transferred his cow to B and B has transferred his horse to A. Then the horse ceases to exist. Neither A nor B were at fault. The horse was lost due to some supervening event. They now find out that there is some reason why the contract could be unwound: A was mistaken when he entered into the contract, fraudulently induced or forced by B to enter into the contract, the horse was defective, B did not have title to the horse, A was a minor, or the contract was simply void. In all these cases A may have a right to claim back the cow from B and B may claim back the horse from A. But how does it affect A's claim for the cow that B has already given the horse to A and that A is not able to give it back? How does it affect B's claim that the horse has ceased to exist? Is the defence of change of position the proper legal tool to help to solve these questions? The defence could come into play at two different points of analysis.