This book presents a critical analysis of the rules on the contents and effects of contracts included in the proposal for a Common European Sales Law (CESL). The European Commission published this proposal in October 2011 and then withdrew it in December 2014, notwithstanding the support the proposal had received from the European Parliament in February 2014. On 6 May 2015, in its Communication ‘A Digital Single Market Strategy for Europe’, the Commission expressed its intention to “make an amended legislative proposal (…) further harmonising the main rights and obligations of the parties to a sales contract”. The critical comments and suggestions contained in this book, to be understood as lessons to learn from the CESL, intend to help not only the Commission but also other national and supranational actors, both public and private (including courts, lawyers, stakeholders, contract parties, academics and students) in dealing with present and future European and national instruments in the field of contract law.
The book is structured into two parts. The first part contains five essays exploring the origin, the ambitions and the possible future role of the CESL and its rules on the contents and effects of contracts. The second part contains specific comments to each of the model rules on the contents and effects of contracts laid down in Chapter 7 CESL (Art. 66-78). Together, the essays and comments in this volume contribute to answering the question of whether and to what extent rules such as those laid down in Art. 66-78 CESL could improve or worsen the position of consumers and businesses in comparison to the correspondent provisions of national contract law. The volume adopts a comparative perspective focusing mainly, but not exclusively, on German and Dutch law.
PART ONE – Lessons to Learn from the CESL.- I. Contents and Effects of Contracts: Lessons to Learn from the CESL; Aurelia Colombi Ciacchi.- II. Origin and Ambitions of the Common European Sales Law, Especially its Chapter on Contents and Effects; Oliver Remien.- III. The Many Advantages of a Common European Sales Law; Ewoud Hondius.- IV. Identification of Gaps and Gap-Filling under the Common European Sales Law– a Model for a Future Optional Instrument?; Christoph Busch.- V. The Digital Single Market and Legal Certainty: A Critical Analysis; Alex Geert Castermans, Ruben de Graaff and Matthias Haentjens.- PART TWO - Contents and Effects of Contracts: Lessons to Learn from Chapter 7 CESL.- VI. Art. 66-68 - The Sources of Contract Terms under the CESL; Hugh Beale.- VII. Art. 66-68 - Implied Terms in the CESL: Different Approaches?; Bart Krans.- VIII. Art. 67 - Contract Interpretation and the Role of ‘Trade Usage’ in a Common European Sales Law; Vanessa Mak.- IX. Art. 69 - Pre-contractual Statements under Article 69 CESL – Remake or Revolution?; Bernd Seifert.- X. Art. 70 - The Duty to Raise Awareness of Not Individually Negotiated Contract Terms; Salvatore Patti.- XI. Art. 70-71 - Incorporation and Making Available of Standard Contract Terms; Marco Loos.- XII. Art. 72 - The Effect of Merger and Non-Reliance Clauses in the Commission’s Draft of the Common European Sales Law (CESL); Tobias Pinkel.- XIII. Art. 73-75 - Price Determination; Viola Heutger.- XIV. Art. 74 - The "Grossly Unreasonable" Unilateral Determination of Price or Other Contract Terms and its Substitution under the Proposed Art 74 CESL; Axel Halfmeier and Tim Dornis.- XV. Art. 76 - The ‘Stick to the Language’ Rule; Peter Rott.- XVI. Art. 77 - Contracts of Indeterminate Duration: Article 77 CESL – a Comment from a German Perspective; Franziska Weber.- XVII. Art. 78 - Third Party Stipulation and Consumer Protection; Alain Ancery.