Kåre Lilleholt

Comparative Private Law

2012

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

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

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)

The DCFR

• Black letter rules• Comments• Comparative notes

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

Contents DCFR (ctd.)

• Book VI Non-contractual liability arising out of damage caused to another

• Book VII Unjustified enrichment• Book VIII Acquisition and loss of ownership in

movables• Book IX Proprietary security rights in

movable assets• Book X Trusts

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

CESL – a second regime

Norwegian lawGerman law

French law

Existing law

Existing law

Existing lawCESL

CESL

CESL

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)

Recourse to other law?

• Autonomous interpretation• Issues with the scope of CESL must be

settled without recourse to national law

Content of CESL

• Making a binding contract• Interpretation• Obligations and remedies• Damages and interest• Restitution• Prescription

Consclusion of contract

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

Voidability due to mistake

• Article 48• Inaccuracy in communication

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