ABSTRACT On 11 October 2011, the European Commission published a Proposal for a Regulation on an ... more ABSTRACT On 11 October 2011, the European Commission published a Proposal for a Regulation on an optional Common European Sales Law (CESL). This text represents a milestone for the further development of European contract law. Our essay critically examines and evaluates the Commission’s proposal. It outlines the Commission’s draft as well as its background and deals with some of the most pressing doctrinal and policy issues raised by it. We show that the suggested range of application and the technical mode for opting into the CESL are flawed. Further, the CESL incorporates many elements and doctrines of the current acquis communautaire, such as unduly extensive information duties and withdrawal rights as well as a policing of standard contract terms, without reconsidering their proper purposes and uses. With respect to the rules on sales law, it is particularly the mandatory character of most of them that poses grave problems. We also demonstrate that the CESL’s optional character does not eliminate the quality concerns raised in this essay: The CESL might become a ‘success’ despite its shortcomings. Hence, notwithstanding its optional character, the proposed text should not be enacted. What is needed is a broad and thorough debate on the scope, forms and contents of contract law harmonization in Europe rather than the speedy legislative enactment of a flawed product. Please note that this is an article published in German.
The book provides rule-by-rule commentaries on European contract law (general contract law, consu... more The book provides rule-by-rule commentaries on European contract law (general contract law, consumer contract law, the law of sale and related services), dealing with its modern manifestations as well as its historical and comparative foundations. After the collapse of the European Commission's plans to codify European contract law it is timely to reflect on what has been achieved over the past three to four decades, and for an assessment of the current situation. In particular, the production of a bewildering number of reference texts has contributed to a complex picture of European contract laws rather than a European contract law. The present book adopts a broad perspective and an integrative approach. All relevant reference texts (from the CISG to the Draft Common European Sales Law) are critically examined and compared with each other. As far as the acquis commun (ie the traditional private law as laid down in the national codifications) is concerned, the Principles of European Contract Law have been chosen as a point of departure. The rules contained in that document have, however, been complemented with some chapters, sections, and individual provisions drawn from other sources, primarily in order to account for the quickly growing acquis communautaire in the field of consumer contract law. In addition, the book ties the discussion concerning the reference texts back to the pertinent historical and comparative background; and it thus investigates whether, and to what extent, these texts can be taken to be genuinely European in nature, ie to constitute a manifestation of a common core of European contract law. Where this is not the case, the question is asked whether, and for what reasons, they should be seen as points of departure for the further development of European contract law.
‘Contractual claims represent a major tradable asset. They can be sold outright, as in the typica... more ‘Contractual claims represent a major tradable asset. They can be sold outright, as in the typical factoring transaction, or assigned by way of security for a loan or other obligation. The purpose of this Chapter is to set out principles and rules which are designed to facilitate the assignment of claims, whether individually or in bulk, whilst at the same time ensuring that the debtor’s rights are not prejudiced by the assignment.
The parties’ freedom to agree on the content of their contract has never been unlimited. Where th... more The parties’ freedom to agree on the content of their contract has never been unlimited. Where the contract is regarded as legally or morally offensive because it infringes a legal or extra-legal norm, the validity or enforceability of the contract can be excluded. The main reason for policing a contract in this way is that the law is unwilling to help to enforce a contract that places itself outside the legal and moral order on which a society is based. Furthermore, invalidity or non-enforcement may be regarded as a sanction discouraging undesirable conduct.
It seems clear that sale is a contract providing for the exchange of a thing for money. Yet, in h... more It seems clear that sale is a contract providing for the exchange of a thing for money. Yet, in historical and comparative perspectives, the contours become blurred. What is a thing? What is money? Wherever a comprehensive statement of the rules governing sales was attempted, these questions had to be answered. As the following survey will show, some issues (like the correct classification of contracts for goods to be manufactured) seem perennial and ubiquitous, others (like the Romans’ difficulties regarding generic sales) have long become obsolete, and some (like the question of whether computer programs or Bitcoins can be sold like corporeal things) have only recently emerged.
The modern law of contract is based on the idea of contractual freedom. In particular, parties ar... more The modern law of contract is based on the idea of contractual freedom. In particular, parties are free to determine their (mutual) duties themselves (above, Art 1:102). This freedom is not, in principle, restricted to certain issues but includes and extends to all means and modalities of performance. Often, however, parties will not address all questions relating to performance in their contract.
The article examines the ‘Principles of the Existing EC Contract Law’ (Acquis Principles) publish... more The article examines the ‘Principles of the Existing EC Contract Law’ (Acquis Principles) published by the European Research Group on the Existing EC Contract Law (Acquis Group), a key player within the academic network charged with the preparation of a ‘Common Frame of Reference’. The Acquis Principles may therefore have a considerable impact on the shape and development of EC
Abstract At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. ... more Abstract At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. The text is the result of the work of a broad range of private law scholars from the Member States of the European Union, and it presents itself as an 'academic'document, ...
Información del artículo El marco común de referencia para el Derecho privado europeo: cuestiones... more Información del artículo El marco común de referencia para el Derecho privado europeo: cuestiones valorativas y problemas legislativos.
ABSTRACT On 11 October 2011, the European Commission published a Proposal for a Regulation on an ... more ABSTRACT On 11 October 2011, the European Commission published a Proposal for a Regulation on an optional Common European Sales Law (CESL). This text represents a milestone for the further development of European contract law. Our essay critically examines and evaluates the Commission’s proposal. It outlines the Commission’s draft as well as its background and deals with some of the most pressing doctrinal and policy issues raised by it. We show that the suggested range of application and the technical mode for opting into the CESL are flawed. Further, the CESL incorporates many elements and doctrines of the current acquis communautaire, such as unduly extensive information duties and withdrawal rights as well as a policing of standard contract terms, without reconsidering their proper purposes and uses. With respect to the rules on sales law, it is particularly the mandatory character of most of them that poses grave problems. We also demonstrate that the CESL’s optional character does not eliminate the quality concerns raised in this essay: The CESL might become a ‘success’ despite its shortcomings. Hence, notwithstanding its optional character, the proposed text should not be enacted. What is needed is a broad and thorough debate on the scope, forms and contents of contract law harmonization in Europe rather than the speedy legislative enactment of a flawed product. Please note that this is an article published in German.
The book provides rule-by-rule commentaries on European contract law (general contract law, consu... more The book provides rule-by-rule commentaries on European contract law (general contract law, consumer contract law, the law of sale and related services), dealing with its modern manifestations as well as its historical and comparative foundations. After the collapse of the European Commission's plans to codify European contract law it is timely to reflect on what has been achieved over the past three to four decades, and for an assessment of the current situation. In particular, the production of a bewildering number of reference texts has contributed to a complex picture of European contract laws rather than a European contract law. The present book adopts a broad perspective and an integrative approach. All relevant reference texts (from the CISG to the Draft Common European Sales Law) are critically examined and compared with each other. As far as the acquis commun (ie the traditional private law as laid down in the national codifications) is concerned, the Principles of European Contract Law have been chosen as a point of departure. The rules contained in that document have, however, been complemented with some chapters, sections, and individual provisions drawn from other sources, primarily in order to account for the quickly growing acquis communautaire in the field of consumer contract law. In addition, the book ties the discussion concerning the reference texts back to the pertinent historical and comparative background; and it thus investigates whether, and to what extent, these texts can be taken to be genuinely European in nature, ie to constitute a manifestation of a common core of European contract law. Where this is not the case, the question is asked whether, and for what reasons, they should be seen as points of departure for the further development of European contract law.
‘Contractual claims represent a major tradable asset. They can be sold outright, as in the typica... more ‘Contractual claims represent a major tradable asset. They can be sold outright, as in the typical factoring transaction, or assigned by way of security for a loan or other obligation. The purpose of this Chapter is to set out principles and rules which are designed to facilitate the assignment of claims, whether individually or in bulk, whilst at the same time ensuring that the debtor’s rights are not prejudiced by the assignment.
The parties’ freedom to agree on the content of their contract has never been unlimited. Where th... more The parties’ freedom to agree on the content of their contract has never been unlimited. Where the contract is regarded as legally or morally offensive because it infringes a legal or extra-legal norm, the validity or enforceability of the contract can be excluded. The main reason for policing a contract in this way is that the law is unwilling to help to enforce a contract that places itself outside the legal and moral order on which a society is based. Furthermore, invalidity or non-enforcement may be regarded as a sanction discouraging undesirable conduct.
It seems clear that sale is a contract providing for the exchange of a thing for money. Yet, in h... more It seems clear that sale is a contract providing for the exchange of a thing for money. Yet, in historical and comparative perspectives, the contours become blurred. What is a thing? What is money? Wherever a comprehensive statement of the rules governing sales was attempted, these questions had to be answered. As the following survey will show, some issues (like the correct classification of contracts for goods to be manufactured) seem perennial and ubiquitous, others (like the Romans’ difficulties regarding generic sales) have long become obsolete, and some (like the question of whether computer programs or Bitcoins can be sold like corporeal things) have only recently emerged.
The modern law of contract is based on the idea of contractual freedom. In particular, parties ar... more The modern law of contract is based on the idea of contractual freedom. In particular, parties are free to determine their (mutual) duties themselves (above, Art 1:102). This freedom is not, in principle, restricted to certain issues but includes and extends to all means and modalities of performance. Often, however, parties will not address all questions relating to performance in their contract.
The article examines the ‘Principles of the Existing EC Contract Law’ (Acquis Principles) publish... more The article examines the ‘Principles of the Existing EC Contract Law’ (Acquis Principles) published by the European Research Group on the Existing EC Contract Law (Acquis Group), a key player within the academic network charged with the preparation of a ‘Common Frame of Reference’. The Acquis Principles may therefore have a considerable impact on the shape and development of EC
Abstract At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. ... more Abstract At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. The text is the result of the work of a broad range of private law scholars from the Member States of the European Union, and it presents itself as an 'academic'document, ...
Información del artículo El marco común de referencia para el Derecho privado europeo: cuestiones... more Información del artículo El marco común de referencia para el Derecho privado europeo: cuestiones valorativas y problemas legislativos.
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