European Perspectives on the Common European Sales Law

314 Pages·2015·2.66 MB·English

by  Javier Plaza Penadés, Luz M. Martínez Velencoso (eds.)

Studies in European Economic Law
and Regulation
Volume 4
Series Editor
Kai Purnhagen
Law and Governance Group, Faculty of Law
Wageningen University, Erasmus University
Wageningen and Rotterdam, The Netherlands
The series shall focus on studies devoted to the analysis of European Economic
Law. It shall firstly embrace all features of EU economic law in general (e.g. EU
law such as fundamental freedoms and their relationship to fundamental rights, as
well as other economic law such as arbitration and WTO law) and more specifi-
cally (antitrust law, unfair competition law, financial market law, consumer law).
This series shall cover both classical internal analysis (doctrine) as well as external
analysis, where European Economic Law and Regulation is the subject of analysis
(Law and Economics, Sociological Analysis, Comparative Law and the like).
The series accepts monographs focusing on a specific topic, as well as edited
collections of articles covering a specific theme or collections of articles by a sin-
gle author. All contributions are accepted exclusively after a rigorous double-blind
peer-review process.
More information about this series at http://www.springer.com/series/11710
Javier Plaza Penadés • Luz M. Martínez Velencoso
Editors
European Perspectives
on the Common European
Sales Law
2123
Editors
Javier Plaza Penadés Luz M. Martínez Velencoso
Department of Civil Law LL.M. Humboldt Universität Berlin
University of Valencia Faculty of Law University of Valencia
Valencia Valencia
Spain Spain
ISSN 2214-2037 ISSN 2214-2045 (electronic)
ISBN 978-3-319-10496-6 ISBN 978-3-319-10497-3 (eBook)
DOI 10.1007/978-3-319-10497-3
Springer Cham Heidelberg New York Dordrecht London
Library of Congress Control Number: 2014947667
© Springer International Publishing Switzerland 2015
This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of
the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recita-
tion, broadcasting, reproduction on microfilms or in any other physical way, and transmission or infor-
mation storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar meth-
odology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in
connection with reviews or scholarly analysis or material supplied specifically for the purpose of being
entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplica-
tion of this publication or parts thereof is permitted only under the provisions of the Copyright Law of
the Publisher’s location, in its current version, and permission for use must always be obtained from
Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center.
Violations are liable to prosecution under the respective Copyright Law.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publica-
tion does not imply, even in the absence of a specific statement, that such names are exempt from the
relevant protective laws and regulations and therefore free for general use.
While the advice and information in this book are believed to be true and accurate at the date of publica-
tion, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors
or omissions that may be made. The publisher makes no warranty, express or implied, with respect to
the material contained herein.
Printed on acid-free paper
Springer is part of Springer Science + Business Media (www.springer.com)
Preface
The Proposal for a Common European Sales Law (CESL), published by the Euro-
pean Commission in 2011, has the aim of introducing an optional regime for cross-
border sale of goods for the European Union.
The publication of this Proposal has given rise to a lot of interest not only in
the academic community, but also in the world of the practitioner. The aim of this
Commentary is to present a coherent view of the subject from the perspective of a
number of scholars from different European countries, of whom will compare the
text of the CESL with their own national law and other European legal texts. This
Commentary offers a serious comparative study of the CESL alongside other in-
struments, such as the CISG, and also pre-existing instruments including the Draft
Common Frame of Reference (DCFR) and the Principles of European Contract
Law (PECL).
In the future application of the CESL it is anticipated that problems will arise in
relation to the uniformity that is intended by such a European legal text requiring
homogeneous application by the different national courts. The drafters of the CESL
have sought uniformity in order to avoid the complexity of a European sales law
resulting from the application of the different sales laws of each Member State. This
Commentary, coordinated by legal scholars, whom of which are members of the
Valencian Study Group for the Study of European Private Law (GEVDPE)1, will
contribute towards the achievement of this desired uniformity.
Firstly, the process of the enactment of the CESL will be analysed, in conjunc-
tion with its scope of application, covering areas such as sale of goods, supply-
ing (licensing) of digital content, supply of trade-related services, and consumer
protection. International aspects concerned with the application of the CESL will
also be analysed in this Commentary, particularly as one of the main features of
the CESL—unlike other international instruments—is its optional nature, i.e. the
parties must agree upon its application in order for this instrument to govern the
particular contract.
1 This Book has been prepared within the framework of the Research Project DER2013-42526-R
(“New legal challenges of the digital society: property, contracts, data and electronic registers”),
funded by the Spanish Ministry of Science and Innovation and Prometeo Program 2011, PROME-
TEO 2011/23, (“Technological model of the Valencian Community”).
v
vi Preface
The structure of the CESL determines the structure of this Commentary. The
subjects that are regulated by the CESL may be divided into three groups: (i) aspects
related to the conclusion of the contract and its content; (ii) aspects related to the
performance of obligations by both parties; and (iii) aspects related to remedies in
case of non-performance, including the issue of prescription of claims and other
rights. The CESL adopts a simpler structure (compared to the Draft Common Frame
of Reference) that is more accessible to traders and consumers. This Commentary
focuses on the main aspects of the Common Sales Law proposal in more detail. In
particular, the regulation of the CESL with regards to issues such as: pre-contractual
information duties, unfair contract terms, the notion of conformity with the contract
and the remedies in case of non-performance of obligations.
[1] Issues concerning the conclusion of contract.
Firstly, the CESL regulates matters relating to the conclusion of a contract. The
provisions cover the pre-contractual information requirements. This includes the
pre-contractual information required in the contract between the involved traders,
the contract concluded by electronic means, the provisions that regulate conclu-
sion of contract by the offer and its acceptance, and the provisions concerning the
right to withdraw in distance provisions on the content of the contract and on unfair
contract terms.
One of the questions related to the pre-contractual phase is the integration of ad-
vertising into contracts in Article 69 of the CESL where the necessary requirements
of the professional supplier's pre-contractual statements are fixed, or the statements
of a third party about the characteristics of the product to be incorporated into the
content of the contract.
Another significant issue to take into consideration is that conclusion of contract
regulated in the CESL is based on a combination of concepts derived from various
legal systems. The textual part of the CESL combines some elements of common
law and some elements taken from the European system. For that reason, future
application of the rules will provide interesting insights into the mechanism of the
reception of law into different legal cultures.
In relation to unfair contractual terms, there is a long-standing European tra-
dition of law demanding good faith and fair dealing in contractual relationships.
Therefore, this Commentary will analyse how to deal with contract terms that are
considered unfair.
In addition to this, a chapter is also dedicated to the right of withdrawal that ap-
pears in the context of contractual obligations as a more modern development of the
principle “pacta sunt servanda”. Nowadays the right of withdrawal is considered
as an exceptional facility of only one of the parties of the contract, the consumer,
enabling him or her to terminate “ad nutum”, meaning with no reason, and with
retroactive contractual effect.
[2] Issues concerning performance.
Parts IV and V of the CESL are based on the approach of the CISG, containing
the obligations and remedies of the parties to a sales contract, and related services
contracts. In both cases, the respective provisions are preceded by a set of provi-
sions that apply to both parties alike (Chaps. 9 and 15).
Preface vii
The subject of performance of the obligations is regulated in Chap. 10, which ad-
dresses the seller’s obligations. Chapter 12 (Articles 123–130 of the CESL) relates
to a buyer’s obligations, and Chap. 14 addresses the passing of risk. Chapter 15
regulates the obligations of the parties in a service contract.
In Article 87 of the CESL the general definitions about the notions of “non-
performance” and “fundamental non-performance” are recorded. This regime con-
stitutes a unitary concept of breach of contract and, therefore, closely follows the
European standard based on CISG, PECL and DCFR. In the corresponding chapter
of this Commentary this question has to be analysed as the result of a development
of uniform law starting with the CISG and ending so far with the notion of breach
of contract in the DCFR. Similarly, the solution proposed by the CESL has to be
compared to the diverging approaches of the national legal orders and the history of
emergence of what will become a common European notion of breach of contract
in a legal sense.
Along these lines the concept of conformity is one of the most important top-
ics in modern Contract Law, especially concerning sales contracts, and other types
of contracts for goods and services. This is particularly concerning for the CESL,
where the lack of conformity constitutes a case of non-performance and in this situ-
ation makes the recourse to the panoply of remedies typical for non-performance
possible.
Likewise, another issue to consider is that of the passing of risk, which is one of
the most problematic topics regarding contract sales law. National laws usually link
the passing of risk to abstract and general concepts, such as the conclusion of the
contract, the transfer of ownership, or the transfer of the physical possession of the
goods. However, these concepts are rigid and unsuited to international commercial
practice. For these reasons, the CESL has opted to follow the "analytical approach"
set out in the CISG. In this way Chap. 14 of CESL regulates the passing of risk
in sales involving carriage of goods, when the goods are sold in transit or when
the goods are placed at buyer's disposal. The CESL also expressly distinguishes
between B2B and B2C contracts, ensuring a high level of consumer protection in
this field.
The legal doctrine of the change of circumstances is also analysed in this Com-
mentary. In accordance with Article 89 of the CESL, when the exact fulfilment of a
contract becomes disproportionate due to an unexpected change of circumstances,
the consequence is the duty to renegotiate. If, within a reasonable period of time,
the parties do not reach an agreement, they may request the assistance of the court
or an arbitrator. The judge may decide to adapt the contract taking into account the
hypothetical will of the parties, or declare the termination of the contract and lay
down the conditions for doing so. In the corresponding chapter it will be concluded
that the application of Article 89 of the CESL should not be problematic in different
European countries, as there are a lot of similarities between the various European
legal systems in this field.
With regard to service contracts, however, the CESL only regulates those service
contracts whose existence is justified by their direct link to sales contracts. This
is different to the regulated under the DCFR where it provided a more exhaustive
viii Preface
coverage. The aim of this regulation in the CESL is to maximise the added value of
the common European sales law, which justifies the inclusion in its material scope
of certain services provided by the seller that are directly and closely related to the
specific goods or digital content supplied on the basis of the said rules.
There is also a chapter concerned with the topic of the contract for the supply of
digital content and its main aspects. This can be seen as the most novel part of the
CESL and also a very important part.
[3]. Final part. General contract law issues.
The final three parts of the CESL are concerned again with general contract law
issues, certain remedies (damages and restitution) and prescription.
Concretely, Part VI “Damages and interest” contains supplementary common
rules on damages for loss and on interest to be paid for late payment. Part VII “Res-
titution” explains the rules that apply on what must be returned when a contract is
avoided or terminated. Part VIII “Prescription” regulates the effects of the lapse of
time on the exercise of rights under a contract.
The CESL contains, in Chapter 17 (arts. 172-177) rules relating to the scope
and manner of exercising a restitution claim of whatever was supplied under a con-
tract that has been subsequently avoided or terminated. The CESL regulates jointly
restitution arising from avoidance and termination. The aim of the corresponding
chapter of this Commentary is to analyse the most relevant aspects of this proposal,
highlighting certain gaps in the text that could cause problems of interpretation and
application.
The next chapter is dedicated to the issue of whether a remedy of compensation
of damages as the right to rescind the contract and to withhold or reduce the price
does not fully compensate the creditor for his loss in every case.
Finally the Commentary deals with the prescription regulated in a very complete
way in the CESL, although this proposal is limited in its application to the sale of
goods. This regulation takes into account several new tendencies that have emerged
from a number of national legal systems. Prescription is undoubtedly a necessary
doctrine; not only for obligations derived from contracts but for all types of obliga-
tions, and so its regulation in the Common European Sales Law could go on to form
the basis of its regulation in a future European Civil Code.
To conclude, this Book seeks to offer a commentary on the main aspects of the
CESL from the perspectives of scholars of different European countries, so that the
intended impact of the CESL may be achieved in practice.
Editors
Javier Plaza Penadés
Luz M. Martínez Velencoso
Contents
1 T he Proposal for a Regulation on a Common European Sales
Law (CESL): An Introduction ................................................................ 1
Ana Sofia Gomes
2 Some Private International Law Issues ................................................. 17
Guillermo Palao Moreno
3 Formation of Contract ............................................................................. 37
Jakub J. Szczerbowski
4 T he Mandatory Nature of the Right of Withdrawal ............................. 45
Carmen Azcárraga Monzonís and Raquel Guillén Catalán
5 T he Integration of Advertising Statements into the Content
of the Contract .......................................................................................... 67
Francisco Infante Ruiz
6 Unfair Contract Terms ............................................................................ 93
Hans Fredrik Marthinussen
7 Breach of Contract ................................................................................... 111
Martin Schmidt-Kessel and Eva Silkens
8 C hange of Circumstances ........................................................................ 137
Luz M. Martínez Velencoso
9 N on Conformity of Goods and Digital Content and its Remedies....... 163
María Paz García Rubio
ix