Comparative Private Law 2012 A Common European Sales Law? Proposal - - PowerPoint PPT Presentation

Kåre Lilleholt

Comparative Private Law 2012

A Common European Sales Law?

• Proposal for regulation: COM(2011) 635 final
• An optional “2nd regime” for cross-border

contracts

• Scope: sales of goods, supply of digital

content, related services

• Relevance for comparative law

Contract law in Europe

• Varies from country to country
• Private international law
• Uniform law

– CISG – EU legislation, minimum harmonisation, total harmonisation

• Model laws etc.: UNIDROIT Principles,

PECL, DCFR

The process up to CESL

• The Commission’s Action Plan (2003)
• CoPECL Network (2005)
• Draft Common Frame of Reference (2009)

– Study Group on a European Civil Code – Acquis Group

• French texts on terminology and principles

(2008)

• Feasibility Study (2011)
• CESL (2011)

The DCFR

• Black letter rules
• Comments
• Comparative notes

Contents DCFR

• Book I General provisions
• Book II Contracts and other juridical acts
• Book III Obligations and corresponding rights
• Book IV Specific contracts and the rights and
• bligations arising from them
• Book V Benevolent intervention in another’s

affairs

Contents DCFR (ctd.)

• Book VI Non-contractual liability arising out of

damage caused to another

• Book VII Unjustified enrichment
• Book VIII Acquisition and loss of ownership

in movables

• Book IX Proprietary security rights in

movable assets

• Book X Trusts

EU legislation on contracts

• Primarily on consumer contracts
• Most recent: Consumer Rights Directive

(2011/83)

– deadline 13 December 2012 – contracts concluded after 13 June 2014

CESL – a second regime

Norwegian law German law French law

Existing law Existing law Existing law CESL CESL CESL

Application of CESL

• Chosen by the parties
• Cross-border contract (unless otherwise

decided)

• At least one party in a Member State
• Contract for the sale of goods, for the supply
• f digital content, related services
• Trader and consumer or SMB (unless
• therwise decided)

Recourse to other law?

• Autonomous interpretation
• Issues with the scope of CESL must be

settled without recourse to national law

Content of CESL

• Making a binding contract
• Interpretation
• Obligations and remedies
• Damages and interest
• Restitution
• Prescription

Consclusion of contract

• Definition of contract
• Offer and acceptance
• Right to withdraw
• Defects in consent

Voidability due to mistake

• Article 48
• Inaccuracy in communication

Interpretation

• Common intention
• Particular meaning known to the other party
• Meaning that a reasonable person would

give to it

• Relevant matters

– circumstances – practices – good faith and fair dealing