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Reproduced with permission of the author and the International Academy of Comparative law. Scheduled for publication in: Ewoud Hondius, ed., Precedent and the Law / Les precedents et le droit [provisional title], Brussels: Bruylant (2006).

Precedent and the Law in Denmark

Danish National Report
XVIIth Conference of The International Academy of Comparative Law
Utrecht 2006

© 2006 by
Joseph Lookofsky
Professor, dr.jur.
University of Copenhagen

 

-   General Introduction
-   The Judicial Hierarchy, Vertical & Horizontal Relevance, Appeals, etc.
-   Judge-made Law & the Danish Concept of Precedent
-   The Interpretation of Danish Precedents
-   Conclusion

General Introduction

The term "precedent"-- as well as the concept of "case law," to which the term precedent is tied -- means different things to different jurists in different legal systems. It is of course this diversity that gives comparative scholars good reason to meet in Utrecht to present and exchange views.[1]

I suppose outsiders having little specific knowledge of Danish (or Scandinavian) law might ask where Denmark and the Danish view of precedent fit in on the traditional "Civil vs. Common law" map. But as a jurist who first studied (and practiced) law in New York and later came to study (and teach) law in Copenhagen, I would be reluctant to answer that tricky question by attempting to subsume the Danish position within traditional comparative pigeonholes.

By virtue of the Common law doctrine of precedent (stare decisis),[2] a given court within a given judicial hierarchy -- e.g., in Canada, England, India, Texas, etc. -- is formally bound by decisions previously rendered by higher courts within that jurisdiction.[3] For this and other reasons, Common lawyers consider their case law -- also often referred to as "judge-made law" -- to be an extremely important source of law. On the other hand, we might expect a Civilian jurist, educated (e.g., in Germany or France) to believe that only a real "legislator" (parliament) can make real law, to reject the concept that judges "make" law at all.[4]

Although Scandinavian legal traditions are in many respects closer to those of continental Europe than to Anglo-American law, the "Scandinavian family"[5] is surely best placed in its own category (conceptually distinct from both Civil and Common law).[6] Moreover, since the judgments (opinions) rendered by Danish courts differ significantly from those rendered in other Scandinavian jurisdictions (i.e., Norway and Sweden),[7] the Danish concept of precedent is probably best described as occupying its own unique position on the "precedential" scale.[8] As one of our prominent legal historians has put it:

"The courts play an important role in the forming of the law. Precedents are not given the same importance as in Anglo-Saxon law. Still, since the beginning of the 19th century it has been recognized that precedents, even if they are not binding, will normally be taken into consideration."[9]

It is at least clear that judge-made law -- i.e., case law (retspraksis, domspraksis) -- is recognized as an important source of law in Denmark,[10] and since the concept of judge-made law makes no sense without the attendant concept of precedent (præcedens),[11] we should expect Danish precedents to be seen as more important (and more "binding") than precedents in most Civilian jurisdictions,[12] perhaps as important as precedents in Norway and Sweden,[13] though hardly as important (or as binding) as Common law precedents (especially considering the formalistic rigidity traditionally associated with stare decisis doctrine).[14]

Those who would move beyond these very general (introductory) comparisons, so as to better understand our special Danish position, will need answers to more specific questions, such as: How and why do Danish courts "make law"? How do Danish jurists define their own concept of precedent (præcedens)? Are Danish precedents (præjudikater) formally binding, or merely persuasive? In other words: what is the role of precedent in Danish law?

In an attempt to provide concrete answers to some of these questions, I will, where possible, emphasize the role of precedent within the context of my own primary field of specialization, i.e., private and commercial law.

The Judicial Hierarchy, Vertical & Horizontal Relevance, Appeals, etc.

Before defining the Danish concept of precedent in general terms, i.e., with a view towards describing the "force" which attaches to the decisions rendered by Danish courts, we should emphasize that differing degrees of impact attach to different decisions, inter alia, because of the "status" of the judgment rendering court and that court's relationship to other courts within the Danish judicial hierarchy. In other words, the "bindingness" of any given Danish judgment will depend, in large measure, on the "rank" of the court which rendered that decision, as well as on that court's relation to courts which might be expected to "follow" it.

In this connection, newer Danish theory applies the widely recognized concept of vertical relevance (persuasiveness) to describe the effect of a decision emanating from courts whose hierarchical position is superior to that of the court which might be expected to "follow" that judgment, whereas horizontal relevance refers to the precedential effect of decisions emanating from the judgment rendering court, as well as other courts located on the same hierarchical tier.[15]

The ordinary Danish courts are organized in a three-tiered system comprising a number of town courts (byretter), two regional courts of appeal (landsretter) and a Supreme Court (Højesteret). The town courts, which are scattered across the country, hear the great majority civil cases in the first instance. There are two courts of appeal, one (for the "Eastern" region of Denmark) located in Copenhagen (Østre Landsret), and the other (for the "Western" region) in Viborg (Vestre Landsret). The Supreme Court (Højesteret) is also located in Copenhagen.

As even outsiders might expect, judgments emanating from higher Danish courts are very likely to be considered (vertically) "relevant" by lower Danish courts asked to decide similar cases.[16] (Could a town or regional court judge act like a "maverick" and still hope for promotion to a higher court in the hierarchy?) There is also considerable evidence that Danish courts, including the Supreme Court, consider themselves "bound" by their own prior decisions, at least unless "compelling circumstances" dictate departure from established precedent.[17] And when it comes to decisions rendered by different courts on the same tier, one regional court might regard a prior decision from the other regional court as (horizontally) "relevant," but only if the judges who have been asked to decide the new case consider the result and the reasoning of the prior decision to be persuasive.

Indeed, even non-Danish decisions -- i.e., decisions emanating from outside the Danish judicial hierarchy altogether -- are sometimes considered "relevant" by Danish courts. This is obviously true as regards decisions rendered by the EC Court of Justice and the European Court of Human Rights,[18] but it also seems clear that a Danish court asked to decide a case pursuant to a treaty such as the Vienna Convention on the International Sale of Goods (CISG) is "bound" to have "regard" to (persuasive) CISG decisions on the same subject previously rendered by other national courts.[19]

To complete this part of the precedential picture, we need to mention the role of Danish appellate courts as such. In Denmark the general principle is that a case may always be appealed once (i.e., tried in two instances), but that further appeal requires permission (or "leave", to use the corresponding English term). Thus, a judgment by a town court may be appealed to the (appropriate regional) court of appeal as a matter of right, whereas an appeal of that latter court's decision to the Supreme Court requires leave.[20] As regards judgments rendered by lower courts in civil cases (which, in Denmark, are never tried by juries), the task of the appellate court -- whether a regional court of appeal or the Supreme Court -- is to re-try questions of fact as well as questions of law.[21] For this reason, the Supreme Court of Denmark cannot be described as a court of "cassation;"[22] it is rather an appellate court of last resort whose task in civil cases is to re-try cases heard by the two regional courts of appeal.[23] So, in contrast with (e.g.) the corresponding Common law system, where appeals are limited to questions of law, a civil appeal in Denmark essentially entails a trial de novo, and this feature of the Danish system has certain implications as regards the ways in which Danish appellate courts "make" law,[24] in that a given Danish appellate court is in no sense "bound" by the lower Danish court's decision.[25] In other words, the concept of "vertical relevance" is simply not relevant when viewed from the high perch of a Danish appellate (regional or Supreme) court.

Judge-made Law & the Danish Concept of Precedent

The Danish legislature (Folketing) is, of course, the place where all Danish statutory "laws"[26] are made, but the role of the Danish judicial branch is not limited to that traditionally assigned to the judiciary in Civilian systems, i.e., that of the so-called "legislative mouthpiece" (bouch de la loi).[27] In fact, we need "judge made" law (dommerskabt ret) in Denmark, because our legislature has never enacted the kind of comprehensive codifications which characterize the legal systems of our Civilian neighbors to the South.[28] Not only do we have no general civil code in Denmark; we have no comprehensive private or commercial law code either. So, whereas (e.g.) the French Code de Commerce supplements the Code Civil, jurists in Denmark have never experienced the need for such comprehensive enactments (and that is a fact which may also help explain the skeptical attitude of many Danish jurists regarding the idea of new and even grander European Civil Code).[29]

Since the Danish legislature has long recognized (and quite willingly accepted) the law-making role of the Danish courts -- not least in private and commercial law contexts -- a competent Danish court cannot refuse to decide a private or commercial case for the (formalistic) reason that the legislature has not "laid down" a formal rule of law.[30] Indeed, many of the statutes enacted by the Danish Parliament reflect our legislator's intent to (continue to) leave the development of many fundamental issues and doctrines up to our courts. The Danish Sales Act of 1906, for example, made no attempt to answer the key question of whether the goods "conform" to the contract, and (except for consumer sales)[31] the definition of "defect" remains -- some 100 years later -- solely in the hands of the Danish courts.[32] By the same token, our Contracts Act (1915) was amended in 1976 to give Danish courts the power to deny enforcement of "unreasonable" terms, but the Danish legislator decided to put the (Danish) definition of the term "unreasonable" in the hands of the courts,[33] and this explains why the Danish legislator (like the Swedish legislator) later found it difficult to implement the EU Directive on Unfair Contract Terms, with its distinctly "civilian" gray list of clauses deemed unlikely to pass the new EU version of the "reasonableness" test.[34]

To put the larger Danish concept of precedent in broader perspective, it should be emphasized that a decision rendered by a Danish court in a private law matter is recognized as serving two, essentially distinct functions: one "retrospective," the other "prospective."[35] The first (retrospective) functions is, of course, to decide the controversy in question, i.e., resolve the (pre-existing) dispute which one of the parties (A) has "brought" before the (competent) Danish court for resolution, e.g., so as to decide whether or not the defendant (B) must pay the sum of money which the plaintiff (A) claims B owes him, say, by reason of B's alleged breach of contract, negligent conduct, etc. This may sound elementary, but there is good reason to emphasize that this always regarded as the main task of any Danish court asked to decide a given controversy, and that includes the Supreme Court.[36]

The second (essentially separate) judicial function of a decision rendered by a Danish court is to establish a precedent, i.e., so that a similar future case would (or at least might) be decided in the same way.[37] Although this retrospective function is rightly characterized as "secondary," it should be noted that, in order to decide the controversy between the parties before it, a judgment-rendering court in Denmark may have no choice but to "make law," simply because no other rule "exists,"[38] i.e., because there are no other means to resolve the case at hand.[39] But when a Danish court makes law under those circumstances, i.e., in order to fulfill its primary (retrospective) function, it simultaneously establishes a potential precedent, thus also fulfilling the second function (which, from this perspective, might be described as an incidental consequence of fulfilling the first).

Some 20 years ago, on the occasion of the 325th Anniversary of the Danish Supreme Court, one of its most distinguished judges provided an "insider's" view regarding the relationship between that Court's exercise of its primary and secondary functions,[40] and I am sure he would not mind if I take the liberty of (freely) translating his insights for the benefit of my comparative audience here:

"A judgment is, according to its content and true purpose, a decision between the parties involved in the concrete judicial proceeding, and the Court assumes a much larger and more dubious task when it expresses itself in a way which gives that decision a broader scope. On the other hand, the [combined] law-supplementing (retsudfyldende) and law-making (restsskabende) function has long been justified and recognized as one of the Supreme Court's most important tasks […]

To keep the exercise of this [combined] function within appropriate limits, the formulation of a "principle" ratio (holding) normally presupposes that the case is of a suitable type and that it does not involve "special" circumstances which themselves might dictate a "special" outcome, that the parties (as part of their procedural submissions) have argued the relevant points in question [etc., etc.]. Restraint must, however, be expected [e.g.] if the Parliament has initiated the preparation of legislation on point […] The more "principal" the ratio's formulation, the stronger the potential precedential effect (præjudikatvirkning) of the decision, thus increasing the risk that future legal development (retsudvikling) might be blocked."[41]

Unlike Norway, Denmark has no formal laws (statutes) concerning which regulate how our courts make or follow (or even break with) prior precedent,[42] and since not even a Danish Supreme Court judge would dare try to make (judge-made) law on that very general subject,[43] Danish scholars are free to attribute varying shades of meaning to the term precedent (præcedens), i.e., in the sense of the "prospective impact" which might arguably attach to a given decision (præjudikat). According to one scholar's approach, a given decision (X) qualifies as a "precedent" if that decision is arguably relevant for the decision to be made in a subsequent (similar) case (Y).[44] According to another (slightly different) formulation, a decision (X) claimed to be a "precedent" in relation to a subsequent case (Y) only attains status as a (real) precedent, if the Y-court itself considers the X-decision to be relevant.[45]

Under either formulation, the Danish view seems roughly compatible with the comparative approach taken by the Bielfelder Kreis group,[46] which flexibly defines a "precedent" as a prior decision which functions (at least potentially) as a model for later decisions.[47] Although Danish jurists would hardly characterize our precedents as "binding" in the strictest (Bielfelder Kreis) sense, i.e., such that a judgment not respecting a prior precedent is "not lawful," one can certainly envisage a situation where the Danish Supreme Court might feel compelled to reverse a Court of Appeals decision, because it does not "follow" an important prior (Supreme Court) decision.

To take a more positive and realistic approach, however, we should emphasize the extent to which (and the reasons why) many prior Danish decisions are respected, i.e., why these decisions clearly have force or other (precedential) value,[48] or (to revert to the accepted Danish scholarly jargon) why they are relevant. An examination of these factors can help explain why at least one prominent Danish scholar has concluded that some Danish precedents are so "relevant" that they are best described as having binding effect,[49] perhaps even in the (Bielfelder Kreis) "defeasibly binding" sense.[50] To understand the particular nature of the Danish precedential conception, however, we need to account for the special problems which often arise in connection with the interpretation of Danish judgments, particularly those which might be described as having "precedential potential."

The Interpretation of Danish Precedents

A Danish judgment consists of several segments, including (in civil cases) a presentation of the parties' respective claims (krav) and allegations (anbringender), a statement of the facts of the case, a summary of the testimony of witnesses (vidneforklaringer), and finally the court's "reasoning" (begrundelse), also referred to as the "premises"[51] (præmisserne), and finally the result (resultatet). If the case is being heard on appeal, the judgment of the appellate court will also include a full account of the proceedings in the forum below.[52]

It goes without saying (in Denmark, and in all systems which recognize judge-made law) that only "similar" cases have precedential potential,[53] so the facts of a case are obviously important, inter alia, for purposes of "distinguishing" the case at bar from prior decisions,[54] but the key prospective element of a given Danish decision is the court's reasoning (premises), i.e., that part which serves to explain and legitimize the precedent-setting court's result. This is the part of the decision which European jurists (including those in England) refer to as the ratio decidendi,[55] i.e., the part which American jurists call the holding.[56] In some cases, the premises of a Danish decision might also include additional "remarks" (bemærkinger) not strictly "necessary" to support the court's conclusion, but Danish courts, always emphasizing their primary function,[57] are usually reluctant to include obiter dictum in their decisions (as such).[58]

The Danish Supreme Court was established in 1661, but nearly 200 years would pass before the Court was required to justify (begrunde) its decisions at all, and the imposition of that duty (in 1857) did not suddenly lead to the kind of opinions that emanate from other jurisdictions where judges "make law". Indeed, the reasoning of Danish judgments remain problematical to this day, especially considering the (still) hard to decode "shorthand" which Danish courts, including the Supreme Court, often use to explain the reasons (grunde) for their results. As one distinguished Danish jurist lamented on the occasion of 250th Anniversary of that Court:

"We regret that we cannot always learn from your wisdom to the desired degree. We are often confronted with decisions which we are convinced are correct, but whose scope we cannot determine, because the premises are so briefly stated or formulated in such an oracle-like fashion that they provide us with no clear guidance beyond the decision in the concrete case."[59]

The transparency of Supreme Court (and other Danish) opinions, and thus their precedential impact, has certainly improved since 1911, when that disturbing statement was made. For example, the premises of one recent Supreme Court decision include an express citation of a prior Supreme Court decision, thus making it abundantly clear that this is a court which "stands by" its decisions, so at not to disturb points "settled" by prior precedent.[60] But since Danish judges are not yet making that kind of transparent law on a regular basis, Danish courts cannot yet be said to stand by their decisions in the same systematic way that Common law judges "stand by" their own judge-made law.

To underscore that point, I can cite an example from my own recent experience as a member of a Danish Parliamentary Committee (folketingsudvalg) commissioned to explore (and render transparent) the statutory and judge-made private law with respect to the time-barring of claims arising by reason of defective building materials, and then, on that basis, to set forth proposals for possible legislative reform. The impetus to the establishment of that (ad hoc) Committee was a controversial judgment rendered by the Danish Supreme Court in 2001,[61] denying the plaintiffs (home owners) the right to recover damages from the producers (manufacturers) of allegedly defective roof-tiles that the plaintiffs had purchased from intermediaries in the sales chain. While it was clear that the judgment denying recovery was at least partly attributable to a statutory time bar (the plaintiffs had made their claims more than five years after purchase and delivery of the materials),[62] there was considerable confusion as to which other factors were at work. Indeed, the Committee's own experts (including a judge from the Court of Appeals, lawyers representing both consumers and manufacturers interests, and a private law "academic") could not be sure whether the plaintiffs would have won without the 5-year time bar applicable to contractual actions, because the "oracle-like" reasons provided by the Court might be interpreted to mean that the plaintiffs claim would have failed anyway (a fortiori), in that the "non-privity" plaintiffs had no contractual relationship with the defendant, and since the requirements for succeeding on the basis of a non-contractual "direct claim" (direkte krav) against the manufacturers might not have been met.[63] Needless to say, the fact that the Committee members could not reliably "decode" (make transparent) the very judgment that was the Committee's own raison d'être presented a significant stumbling block along the difficult road to legislative reform.[64]

Conclusion

While it would possible, even easy, to provide numerous additional illustrations of non-transparent decision-making by Danish courts,[65] none of these examples would serve to refute the main general points I have made previously, i.e., that Danish courts do "make law," and that Danish precedents are "binding," to a significant degree. Indeed, I have documented my own need to rely heavily on Danish "case law" on countless other occasions, e.g., in my (Danish language) writings on Danish Sales Law,[66] the general law of Obligations,[67] as well as Danish Private International Law.[68]

I would nonetheless submit that the long-standing tradition of Danish courts to place great emphasis on their primary function (to decide the case at hand), coupled with their traditional reluctance to openly acknowledge their secondary (precedent-setting) function, often results in a brand of non-transparent decision-making which separates our concept of "precedent" from that of other systems, and that this special feature of our system cannot help but reduce the "bindingness" of the decisions rendered by our courts, both in the theoretical and the practical sense. This tradition also carries negative implications for the impact certain Danish precedents might otherwise have abroad.[69]

Then again, I do see considerable evidence of a new and more positive, albeit slow and somewhat checkered, trend towards increased judicial transparency, and these new and better (more fully and clearly explained) decisions will surely have a positive impact on Danish law in the future, not least in the fields of private and commercial law, which will continue to depend in large measure on the (combined) "law-supplementing" and "law-making" function of our courts.[70]

I am also pleased to predict that our courts will be able to move forward in that desirable direction without retreating from or compromising the long-standing Scandinavian traditions of legal realism and pragmatism, and that is important, since it is the ongoing significance of these "larger" legal traditions which permits jurists in our special part of the world to remain rightfully proud.[71]


FOOTNOTES

1. See generally the Outline prepared by our General Reporter, Ewoud Hondius, Precedent: Something of the Past? (October 2004).

2. From stare decisis et non quieta movere (to stand by the decisions and not disturb settled points). Regarding the application of the doctrine within American law, see E. Allan Farnsworth, An Introduction to the Legal System of the United States (3d ed. 1996), at p. 51.

3. A given Common law court is at least "bound" by decisions handed down by that jurisdiction's superior courts. As regards various shades of meaning attributable to the term "binding," as well as the concept of "vertical relevance," see text infra with notes 15-25.

4. This is at least the traditional Civilian starting point. See generally K. Zweigert & H. Kötz, An Introduction to Comparative Law (3rd ed. 1998) at 259 ff. See also Joseph Lookofsky, Digesting CISG Case Law: How Much Regard Should We Have? 8 Vindobona Journal of International Commercial Law and Arbitration (2004) 181 at 183, also available at <http://www.cisg.law.pace.edu/cisg/biblio/lookofsky8.html>.

5. Although Finland deserves inclusion in the Scandinavian legal family in certain respects, the Finnish concept of (non-binding) precedent seems distinctly more "Civilian" than Scandinavian: see generally Aulis AArnio Tampere, Precedent in Finland, id. Therefore, for purposes of this paper, I define the "Scandinavian" region along traditional lines, i.e., so as to include Denmark, Norway and Sweden, but not Finland. Regarding the concept of precedent in Norway in Sweden, see generally Svein Eng, Precedent in Norway, and Gunnar Bergholtz, Precedent in Sweden, both in Interpreting Precedents (MacCormick & Summers ed. 1997).

6. See Ditlev Tamm in The Danes and their Legal Heritage, Danish Law in a European Perspective (Dahl/Melchior/Tamm ed. 2d. ed. Copenhagen 2002) at 43 (adjusting the view of René David who counted Nordic law as a Civil law). Regarding the "Nordic Legal Family" see also Zweigert & Kötz, supra note 4, Ch. IV. Accord: Joseph Lookofsky, The CISG's Impact on Legislators, The 1980 Uniform Sales Law -- Old Issues Revisited in the Light of New Experience (Franco Ferrari ed., 2003).

7. See note 5 supra.

8. Regarding the interpretation of Danish precedents, see text infra with notes 51 ff.

9. Ditlev Tamm, supra note 6, p. 57.

10. See generally the discussion infra re. "Judge-made Law & the Danish Concept of Precedent".

11. If a court could "make (private) law" which did not achieve status as precedent, that "law" would necessarily apply only to the parties of the case concerned, and that would, of course, run counter to what we generally know as "law." Regarding the retrospective and prospective functions of judicial decisions, see text infra with note 35.

12. See, e.g., Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents (MacCormick & Summers ed. 1997).

13. As regards the concept of precedent Norway and Sweden, see generally the sources cited supra note 5.

14. See Farnsworth, supra note 2, p. 52 (comparing English and American law).

15. See Henrik Zahle, Praktisk Retsfilosofi (Copenhagen 2005) Ch. 12.5-6, following the terminology employed in Interpreting Precedents (MacCormick & Summers ed. 1997).

16. See generally Zahle at id.

17. See id., inter alia, regarding the "Maastricht treaty" case (reported in Ugeskrift for Retsvæsen 1996, p. 1300) where the Supreme Court of Denmark took the unusual step of expressly distancing itself from its own prior decision on a similar question (published in UfR 1973.694 H). See also the Supreme Court decision reported in Ugeskrift for Retsvæsen 2005, p. 2955, where the Court expressly based its decision on its own prior precedents, i.e., its own judge-made law.

18. See Zahle, supra note 15, Ch. 12.8.

19. See generally Lookofsky, supra note 2, and Joseph Lookofsky, Hensynet til fremmed retspraksis ved fortolkning af CISG, Ugeskrift for Retsvæsen (Copenhagen 2005) p. 45 ff.

20. Leave is likely to be granted if the case involves a "principle" issue, e.g., the initial interpretation of a statutory provision or the resolution of differing interpretations by the courts of appeal. The competence to grant such leave lies with a special board chaired by a Supreme Court judge and composed of two judges from the lower courts, a practicing lawyer and a professor of law.

21. In these instances, new evidence to support the parties' claims and allegations is often submitted by the parties, although entirely new c1aims and/or allegations require the consent of the other party or the court.

22. I.e., as in France, where the Cour de cassation can only confirm the earlier decision, (rejet du pourvoi, dismissal of the appeal) or annul it ("cassation").

23. In certain civil cases the Supreme Court also hears appeals from judgments of the Maritime and Commercial Court (Sø- og Handelsretten) in Copenhagen. Regarding judges and courts in Denmark, see generally Torben Melchior, The Danish Judiciary, in Danish Law in a European Perspective (2d ed. Copenhagan 2002).

24. See the discussion infra regarding "Judge-made Law & the Danish Concept of Precedent".

25. This is an exception-free rule in Denmark, since a higher Danish court never needs to pay deference to the lower court's findings of fact or its exercise of "discretion." In that respect, the Danish position differs from that of systems where the role of appellate courts is limited to reconsideration of issues of law.

26. The English word "law" is a derivative of the Danish word lov (which is pronounced like the English word "low").

27. Regarding this (traditional) Civil law view see Hondius, supra note 1, p. 2.

28. Towards the end of the 17th century, important new Laws (with a capital L) appeared in Denmark, Norway and Sweden, but there are major differences between these instruments and the Civil Codes which were drafted later by Roman disciples to the South. To take one example, the principle of fault-based liability -- the rule of culpa, which has always been essential to the Danish general law of Obligations -- finds no expression in our earliest private law codification: the Danish Law of 1683. As regards those rules which are included in this early Restatement of (previously unwritten) Danish law, most are casuistic --formulated by way of concrete examples, as in the case-method of legal study -- and hardly comparable to the highly systematic rule-style traditionally associated with Civil law Codes.

29. See Joseph Lookofsky, The Harmonization of Private and Commercial Law: Towards a European Civil Code, 39 Scandinavian Studies in Law 111 (2000), also available at <http://cisgw3.law.pace.edu/cisg/biblio/lookofsky14.html>. See also Mads Bryde Andersen and Joseph Lookofsky, Nationale aftaleregler og EU-integration: Problemer og løsningsmodeller, Ugeskrift for Retsvæsen 211-213 (2002). The official (equally skeptical) Danish Government response to COM (2001) 398 is available in English at <http://europe.eu.int/comm/consumers/policy/developments/contract_law/comments/1.7.pdf>. Professor Emeritus (of the Copenhagen Business School) Ole Lando, represents a notable exception to the Danish "Euro-Skeptic" view. See, e.g., Ole Lando, The Rules of European Contract Law, available at <http://cisgw3.law.pace.edu/cisg/biblio/lando2.html>.

30. See Mads Bryde Andersen, Ret & Methode (Law & Method) (Copenhagen 2002) p. 156.

31. I.e., where the seller is a merchant and the buyer is a consumer.

32. See generally Joseph Lookofsky, Køb -- Dansk Indenlandsk Købsret (2d ed. Copenhagen 2002) Ch. 4.2.

33. See generally Joseph Lookofsky, The Limits of Commercial Contract Freedom Under the UNIDROIT "Restatement" and Danish Law, 46 American Journal of Comparative Law (1998) 485-508, also available at <http://cisgw3.law.pace.edu/cisg/biblio/lookofsky2.html#139>. See also Peter Møgelvang Hansen, Contracts and Sales in Denmark, Danish Law in a European Perspective (Dahl/Melchior/Tamm ed. 2d. ed. Copenhagen 2002) at 252 ff.

34. See in this connection the decision of the ECJ of 7 May 2002 in Case C 478/99 (Commission v Kingdom of Sweden), holding that the said Directive was satisfactorily implemented in Sweden, even though its annex (grey list) was not reproduced in the text of the implementing statute, but "only" in the statute's preparatory work (travaux préparatoires).

35. See generally Andersen, supra note 30, p. 155.

36. See, in this connection, the insightful commentary by former distinguished former Danish Supreme Court judge, Torben Jensen, Højesterets arbejdsform, in Højesteret 1661 - 1986 (Copenhagen 1986).

37. See, as regards Danish law, Andersen, supra note 30, p. 154 f. See, as regards American law, Farnsworth, supra note 2, p. 50 f.

38. At least not at that (judgment-rendering) point in time: regarding the many "gaps" in Danish private law see text supra with notes 28 ff.

39. See id.

40. See Jensen, supra note 36, at 140 f.

41. > Id. See also, as regards the supplementary law-making role of Danish courts, Bernhard Gomard, Et retspolitisk program for dommerskabt ret, in Højesteret 1661 - 1986 (Copenhagen 1986) at 59 f.

42. Compare, as regards Norway, Eng, supra note 5, pp. 201-203, noting that the Norwegian Act of 25 June 1926 (Amending the Law Relating to Højesterett) requires that a plenary session of the Supreme Court be convened when two or more members of an ordinary panel (of 5 justices) wish to overrule a previous decision by that Court.

43. See generally text infra with notes 53 ff.

44. See Henrik Zahle, Rettens kilder (Sources of Law) (Copenhagen 1999) p. 48: "en dom, der påberåbes som relevant for en senere sag, som et »præjudikat«". See also generally Zahle, supra note 15, Ch. 12.

45. See Andersen, supra note 30, at 154 f.

46. See the Preface by MacCormick & Summers in Interpreting Precedents (MacCormick & Summers ed. 1997).

47. Id., p. 2.

48. See generally the Appendix in Interpreting Precedents (id.), finding it useful to differentiate "bindingness, force, further support and illustrativeness" or other value of a precedent as follows:

(1) Formal bindingness: a judgment not respecting a precedent's bindingness is not lawful and so is subject to reversal on appeal. Distinguish: (a) formal bindingness not subject to overruling: (i) 'strictly binding' - must be applied in every case, (ii) defeasibly binding - must be applied in every case unless exceptions apply (exceptions may be well defined or not); (b) formal bindingness (with or without exceptions) that is subject to overruling or modification.

(2) Not formally binding but having force: a judgment not respecting a precedent' s force, though lawful, is subject to criticism on this ground, and may be subject to reversal on this ground. Distinguish: (a) defeasible force - should be applied unless exceptions come into play (exceptions may or may not be well defined); (b) outweighable force - should be applied unless countervailing reasons apply.

(3) Not formally binding and not having force (as defined in (2» but providing further support: a judgment lacking this is still lawful and may still be justified, but not as well justified as it would be if the precedent were invoked, for example, to show that the decision being reached harmonizes with the precedent.

(4) Mere illustrativeness or other value.

49. See Zahle, supra note 15, Ch. 12.4.

50. I.e., in the sense that they must be applied/followed unless "exceptions" apply. See text supra with note 48.

51. I.e., the propositions upon which the court's argument is based or from which its conclusion is drawn.

52. One reason for this is the fact that a lower court judgment, once appealed, is unlikely to have published on its own.

53. See e.g., Glanville Williams, Learning the Law (12th ed. 2002), Ch. 6.

54. See generally id.

55. See id.

56. See generally Farnsworth, supra note 2, at 54.

57. See text supra with notes 35-36.

58. Regarding the publication of (unofficial) "Commentaries" by individual Supreme Court judges in respect of individual Danish Supreme Court decisions, see Jensen, supra note 36, at 141.

59. Carl Torp, I anledning af Højesterets 250-aarige Bestaaen, in Ugeskrift for Retsvæsen, 1911, p. 54 (translation to English by the present author, emphasis added here). See also Ditlev Tamm, Af Højesterets historie I 325 år, in Højesteret 1661 - 1986 (Copenhagen 1986), p. 1. For a more recent example (an international sales dispute decided by the Danish Maritime & Commercial Court in 2002) see <http://cisgw3.law.pace.edu/cases/020131d1.html#cn>.

60. See text supra with note 17.

61. The decision was published 2002 in Ugeskrift for Retsvæsen, p. 249.

62. Regarding the 5-year time bar applicable to both patently and latently defective building materials (an exception to the 2-year bar applicable to defective goods generally), see Lookofsky, supra note 32, pp. 99 ff.

63. See generally Betænkning nr. 1433 om forbrugerbeskyttelse ved erhvervelse af byggematerialer (2003), available at <http://www.jm.dk/wimpdoc.asp?page=document&objno=71263>.

64. There were, to be sure, also other obstacles, including the fact that the Committee split (more or less evenly) along arguably "pro-consumer" and "pro-industry" lines. See id.

65. See, e.g., regarding the uncertain meaning of the Danish Supreme Court decision reported Ugeskrift for Retsvæsen 1991, p. 43, Møgelvang Hansen, supra note 33, at 240-41. See also, e.g., regarding the hard-to-understand ratio underlying the Supreme Court's decision in the case reported in Ugeskrift for Retsvæsen 1995, p. 856 ("Warehouse Fire") Lookofsky, supra note 33, at 503 f.

66. See generally Lookofsky, supra note 32.

67. See Mads Byrde Anderson & Joseph Lookofsky, Lærebog i Obligationsret Vol. I (2d ed. Copenhagen 2005).

68. See, e.g., Joseph Lookofsky, International Privatret (3d ed. Copenhagen 2004).

69. See generally Lookofsky, supra note 19, emphasizing that foreign courts in CISG Contracting States can hardly observe their duty under Article 7(1) of the Sales Convention to have "regard" for (e.g.) Danish judgments, if those judgments do not explain the reasons which underlie them.

70. See also text supra with notes 26-34.

71. See generally Sverre Blandhol, Nordisk rettspragmatisme (Nordic Legal Pragmatism) (Copenhagen 2005). See also, e.g., Joseph Lookofsky, Consequential Damages in Comparative Context (Copenhagen 1989) at 17-18, 192-93.


Pace Law School Institute of International Commercial Law - Last updated June 7, 2006
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