10 - The recoverability of pure economic loss within the perspective of a European codification

Summary

Introduction

One may wonder how this study and its results might be of possible use to the would-be codifiers of a European Code of the Law of Torts.

The comparative method on which we relied has probably unearthed many common features that were hitherto obscure in traditional legal analysis. It may also be true that our research lends itself as a valuable instrument for future legal harmonization, in the sense that it has hopefully provided reliable data for use in devising transnational solutions that may prove workable in practice.

Nevertheless, any codification attempt should be seasoned with – and this applies not simply to tort law but to all subjects – a certain amount of constructive scepticism. Leaving aside any positive or negative bias vis-à-vis the very idea of the code, as well as the many reasons put forward to deny, support or simply postpone its feasibility, the point is that the inquiry into ‘pure economic loss’ confirms how deeply conscious the code-drafters will need to be about the overall implications of remoulding the law of tort.

Pure economic loss astride private law frontiers

The kind of awareness that is required in legal debate can be simply illustrated by consideration of the following. Throughout our study we have seen the conceptual dependency which exists between underlying contract and property ideas and the law of tort.