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Comparative Private Law in Europe: A Common European Sales Law Proposal

This article explores the proposal for a Common European Sales Law (CESL) as an optional "2nd regime" for cross-border contracts in Europe, covering sales of goods, supply of digital content, and related services. It discusses the relevance of contract law in Europe, private international law, uniform law, EU legislation, and model laws. The article also examines the process leading up to the CESL, the contents of the Draft Common Frame of Reference (DCFR), and the application of CESL in different legal systems.

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Comparative Private Law in Europe: A Common European Sales Law Proposal

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  1. Kåre Lilleholt Comparative Private Law 2012

  2. 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

  3. 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

  4. 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)

  5. The DCFR • Black letter rules • Comments • Comparative notes

  6. 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 obligations arising from them • Book V Benevolent intervention in another’s affairs

  7. Contents DCFR (ctd.) • Book VINon-contractual liability arising out of damage caused to another • Book VIIUnjustified enrichment • Book VIII Acquisition and loss of ownership in movables • Book IX Proprietary security rights in movable assets • Book XTrusts

  8. 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

  9. CESL – a second regime German law Norwegian law Existinglaw CESL Existinglaw CESL French law Existinglaw CESL

  10. 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 of digital content, related services • Trader and consumer or SMB (unless otherwise decided)

  11. Recourse to other law? • Autonomous interpretation • Issues with the scope of CESL must be settled without recourse to national law

  12. Content of CESL • Making a binding contract • Interpretation • Obligations and remedies • Damages and interest • Restitution • Prescription

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

  14. Voidability due to mistake • Article 48 • Inaccuracy in communication

  15. 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

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