Abstract
Termination of contract in the CESL requires a fundamental non-performance of one of the parties. In the case of malperformance Art 114 Para 2 CESL provides for an exemption in B2C contracts, as the consumer also has a right to terminate, if the goods do not conform to the contract, unless the lack of conformity is insignificant. The article tries to offer ways to interpret the new terms: It argues that the case law developed for "fundamental breach" of Art 25, 49 CISG may serve as a source of interpretation for B2B contracts, whereas Art 3 Para 6 Directive 1999/44/EC ("minor lack of conformity") seems to be the proper point of reference for B2C contracts. The article further criticises that in B2C contracts the CESL do not adhere to the hierarchy of remedies. Priority of repair should also be a principle in the CESL and could easily be realised by granting the seller a right to cure the lack of conformity like in the B2B relationship.
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