B2B Information Duties in the Feasibility Study: Analysis of Article 23

Abstract

Abstract: The Acquis contains numerous provisions requiring specific pre-contractual information on goods and services delivered to consumers. It had no such rule for the transactions between businesses. Shaping a new general duty of information seems to be a difficult and delicate issue as in some Member States the 'caveat emptor' rule takes a central place. However, the choice for a generalization of the duty, also in business-to-business (B2B) relations, was already made in the Draft Common Frame of Reference (DCFR). Article 23 of the Feasibility Study couches the pre-contractual information duty of the supplier in his relation to another business in a positive obligation to provide information on the main characteristics of the goods or services supplied. Although contracts between businesses need to operate in a climate of great contractual freedom and the pre-contractual period must be seen as the playgroud of this freedom, this article concludes that the proposed pre-contractual information duty of Article 23 is justifiable due to a very well-balanced conception that makes it particulary fit when a small and medium-sized enterprise (SME) trades with a larger firm. Although some minor remarks can be made, especially the fact that the list of circumstances to be taken into account when judging the existence and, in our opinion also, the extent of the duty of information is not restrictive can be approved.