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This article examines the Common European Sales Law (CESL) as a potential tool for business, focusing on its attempts to develop a European Contract Law. It explores the main characteristics of the CESL, its applicability to contracts with consumers and between traders, and its limitations to SMEs. The article argues that the CESL may not be suitable for sellers, as it introduces principles that overly protect buyers and may lead to abuses. It highlights specific clauses that demonstrate this imbalance of protection.
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2012 IDI Conference - Venice Fabio BortolottiThe Common European Sales LawA useful tool for business or a useless additional set of rules?
The attempts to develop a European Contract Law The draft Commun Frame of Reference (DCFR) (2008) The expert Group: Feasibility study (2010) The proposal for a Common European Sales Law (2011)
Main characteristics of the CESL • Optional set of rules which can be chosen by the parties instead of a domestic law • Purpose: make cross-border trade easier by overcoming the problem of the applicable law • Applicable to contracts with consumers and brtween traders, although with partially different clauses • Limited to SME’s
There is no need for new rules for B2B contracts of sale • The lack of uniform rules is not the reason why SME’s fear to engage in cross-border trade • The CISG has proven to be a good law: the CESL does not add any further advantages • CISG is widely used in relations with countries outside the EU
The CESL is not an appropriate tool for sellers • The fact that it deals at the same time with B2B and B2C contracts has the effect of influencing also the clauses regarding B2Bcontracts by introducing principles that give an excessive protection to the buyer. • The idea behind this is that an SME is similar to a consumer and needs more protection. However SME’s also sell to other SME’s. • Clauses which protect too much the buyer leave space for abuses as we will see in the following examples.
Article 23(1) Duty to disclose information about goods and related services • Before the conclusion of a contract for the sale of goods, supply of digital content or provision of related services by a trader to another trader, the supplier has a duty to disclose by any appropriate means to the other trader any information concerning the main characteristics of the goods, digital content or related services to be suppliedwhich the supplier has or can be expected to have and which it would be contrary togood faith and fair dealing not to disclose to the other party.
Article 70(1) Duty to raise awareness of not individually negotiated contract terms • Contract terms supplied by one party and not individually negotiated within the meaning of Article 7 may be invoked against the other party only if the other party was aware of them, or if the party supplying them took reasonable steps to draw the other party's attention to them, before or when the contract was concluded.
Article 86 (1) Meaning of “unfair” in contracts between traders In a contractbetween traders, a contracttermisunfair for the purposes of thisSectiononlyif: (a) itforms part of notindividuallynegotiatedtermswithin the meaning of Article7; and (b) it is of such a nature that its use grossly deviates from good commercial practice, contrary to good faith and fair dealing.
