Common European Sales Law Research Articles

Specific Performance – and the International Unification of Sales Law

Over the past decades, several approaches have been tried in the process of the unification of contract law to regulate the entitlement to performance in kind, but there is still no generally accepted solution. The Vienna Sales Convention, like its predecessors, resolves the question by a quasi-conflict of laws rule, essentially making the award of specific performance dependent upon the law of the forum, thereby undermining the results of unification. Other sources, such as the UNIDROIT Principles, provide autonomous rules that specify in detail the conditions under which it may be claimed. The Draft Common European Sales Law, continues to attach primary importance to the provision of performance in kind, obviously also bearing in mind the interests of consumers.

Statement of the European Law Institute on the Proposal for a Regulation on a Common European Sales Law - 1st Supplement: Response to the EP Legislative Resolution of 26 February 2014

Statement of the European Law Institute on the Proposal for a Regulation on a Common European Sales Law - 1st Supplement: Response to the EP Legislative Resolution of 26 February 2014

Statement of the European Law Institute on the Proposal for a Regulation on a Common European Sales Law

Statement of the European Law Institute on the Proposal for a Regulation on a Common European Sales Law

THE PRE-CONTRACTUAL DUTY OF DISCLOSURE IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM

Many recent legislations and international principles tend to apply the pre-contractual duty of disclosure as one of the most substantial principles governing the pre-contracting phase, such as Article 1112-1 of the Amended French Civil Code of 2016, Article 1337 of the Amended Italian Civil Code and Article 13 of chapter 2 of the Common European Sales Law, etc. However, the Palestinian legislature has ignored enacting legal provisions imposing the pre-contractual duty of disclosure which causes legislative deficiencies in the legislative remedies of the subject of pre-contractual duty of disclosure. In this regard, this paper suggests orientations for the formulation of the provisions of the pre-contractual duty of disclosure in the Palestinian Civil Code Draft (PDCC). To do so, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article which obligates the negotiating party to disclose any substantial information for the satisfaction of the other party. As such, the contractual equilibrium entails that the pre-contractual duty of disclosure has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this duty.

THE PRE-CONTRACTUAL DUTY OF DISCLOSURE IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM

Many recent legislations and international principles tend to apply the pre-contractual duty of disclosure as one of the most substantial principles governing the pre-contracting phase, such as Article 1112-1 of the Amended French Civil Code of 2016, Article 1337 of the Amended Italian Civil Code and Article 13 of chapter 2 of the Common European Sales Law, etc. However, the Palestinian legislature has ignored enacting legal provisions imposing the pre-contractual duty of disclosure which causes legislative deficiencies in the legislative remedies of the subject of pre-contractual duty of disclosure. In this regard, this paper suggests orientations for the formulation of the provisions of the pre-contractual duty of disclosure in the Palestinian Civil Code Draft (PDCC). To do so, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article which obligates the negotiating party to disclose any substantial information for the satisfaction of the other party. As such, the contractual equilibrium entails that the pre-contractual duty of disclosure has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this duty.

The Concept and Content of Adaptation of Ukrainian Civil Legislation to EU Legislation in the Field of Sales

The article investigates the legal nature of the processes of adaptation of the civil legislation of Ukraine to the EU legislation in the field of purchase and sale. The issues studied in the scientific work are updated through the prism of re-encoding of civil legislation in Ukraine. The author emphasizes the importance of the process of approximation of legal orders within integration associations or other international organizations. Legislative approximation with EU law means the transposition, implementation and enforcement of EU law in the national legal practice of third countries; legislative process aimed at gradually approximating and bringing the legal framework of partner countries in line with EU law. The author studies the draft Common European sales law (CESL) through the prism of its importance for the harmonization of EU law and the adaptation of national legal orders. In the article the author emphasizes the ambiguity of interpretations of the content of the adaptation of national legislation. The author takes the position that adaptation is not limited to issues of legislation, as it is about law enforcement practice and legal techniques. The author proposes to perceive adaptation as a component of the harmonization process, which is aimed at purposeful convergence and harmonization of legal regulations in order to achieve consistency of legislation in a particular area. In fact, adaptation is the final stage of harmonization of legislation, because without the harmonization of national legislation with a single body of legislation, there will be no process of harmonization within a particular international community or community. Given the content of the Association Agreement, the author points out the main areas of adaptation of civil law in the field of purchase and sale: consumer protection in the field of electronic commerce; consumer protection against unfair pricing methods; consumer protection in the field of product safety, etc. The author defines the concept of adaptation of civil legislation of Ukraine to EU legislation in the field of purchase and sale as a process of gradually achieving compatibility of existing civil legislation and new acts of Ukraine with EU acts in the field of sale.

Duty to renegotiate in international commercial law and uncontemplated behavioural effects

This paper explores possible uncontemplated effects and behavioural implications created by duty-to-negotiate provisions in international instruments. More precisely, the paper considers how five different international instruments approach the subject, namely the Convention on Contracts for the International Sale of Goods (CISG), UNIDROIT Principles of International Commercial Contracts (PICC), Principles of European Contract Law (PECL), Draft Common Frame of Reference (DCFR) and Common European Sales Law (CESL). The extent to which these international and European legal instruments correspond to recent economic and behavioural findings is examined. Moreover, an economically inspired analysis is conducted of the uncontemplated consequences of the duty to renegotiate that well-intended international lawmakers never anticipated. Further, it is suggested that game theoretical and behavioural reasons might exist for adopting a cautious approach to the duty to renegotiate in instances of unforeseen contingencies as found in the CISG as well as the English, German, US and Scottish law of contracts. JEL classification: C23, C26, C51, K42, O43

The principle of good faith and fair dealing in English contract law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

New EU legislative instruments concerning contracts for the sale of goods and supply of digital content

On the 20th of May 2019, the European legislator adopted new Directives on the sale of goods and supply of digital content, which determine the vector of future contract law development in the European Union. Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services, and Directive 2019/771 on certain aspects concerning contracts for the sale of goods are the first steps in adapting European private law to the requirements of the digital economy. The article discusses the reasons and preconditions for the adoption of new Directives. The authors, making a historical excursion of the harmonization of European contract law, demonstrate the continuity of the new Directives’ norms of European tradition on the basis of Principles of European Contract Law, Acquis Principles, Draft Common Frame of Reference, Common European Sales Law and Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees. The advantages and disadvantages of the selected full harmonization in new Directives are examined. The legislative freedom granted to European Union Member States on certain issues related to contractual relations for the sale of goods and the supply of digital content are analyzed. The authors pay considerable attention to the disclosure of major legislative novelties related to contractual relations for the sale of goods and the supply of digital content, in particular the conformity of goods (digital content), and requirements for conformity; the seller’s (trader’s) duty to ensure that the consumer is informed of and supplied with updates that are necessary to keep those goods (digital content) in conformity; the burden of proof; data monetization; remedies for lack of conformity of goods (digital content). The problem of the hierarchy of remedies for lack of conformity of goods in a circular economy, such as repair and replacement, is also touched upon. The authors draw attention to the fact that taking into account the peculiarities of the circular economy and in order to determine the disproportion of the chosen method of legal protection, it is necessary to enshrine in legislation on the sale of goods the requirement to take into account its impact on the environment.

Harmonising Private Law in Cyberspace: The New Directives in the Digital Single Market Context

This article is an overview of the latest developments in EU private law in the Digital Single Market context. After several years of uncertainty, in 2019 the EU adopted directives on the sale of goods (Directive 2019/771) and distance sale of content and services (Directive 2019/7770). Both directives are an important upgrade of the present consumer protection regime as well as an addition to the significant list of instruments promised in the 2015 Digital Single Market strategy. This article has two purposes: the first is to establish that the directives are not completely novel but are a result of the tradition dating to Principles of European Contract Law (PECL), Draft Common Frame of Reference (DFCR) and Common European Sales Law (CESL). We also aim to question the basic suitability of civil law as a tool for regulating the Digital Single Market, in particular in light of the new technologies (AI, smart contracts, big data, robotics, etc.) We conclude that, while the directives are an important addition to the body of harmonized EU private law, the problems of new technology may need to be addressed separately and that, technology on occasion (e.g. smart contracts) has the capacity to fulfil the tasks used to be given to civil law.

Retaining Economic Contractual Equilibrium Under the Hardship Theory in the UNIDROIT Principles of 2016 and the Contingency-Unforeseen Circumstances Theory in the Palestinian Civil Code Draft

The UNIDROIT Principles of International Commercial Contracts (PICC) have a significant effect on the legal impact of changed circumstances. Many recent court and arbitral decisions have relied on the PICC when ruling on issues relating to hardship events, as a result of the occurrence of events fundamentally altering the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, which is widely known in international trade as hardship clauses. This was not the case only for court and arbitral decisions, as many directives and principles did, as well, such as Article 6:111 of the Principles of European Contract Law, Article 89 of the Common European Sales Law, and Article 1195 of the Amended French Civil Code of 2016. In this context, this article analyses the role of hardship provisions in light of the PICC in retaining economic equilibrium compared with the contingency-unforeseen circumstances theory in the Palestinian Draft Civil Code Draft (PDCC) in order to reach a place of harmony. On the one hand, the research concluded that the hardship theory as contained in the UNIDROIT Principles of 2016 suits the current Palestinian reality, however, the criterion for determining the fundamental alteration of the contractual equilibrium is tainted in ambiguity. On the other hand, the research shows failure of the contingency-unforeseen circumstances theory in the PDCC in addressing changed circumstances and onerous performance, which necessitates an urgent intervention of the Palestinian legislature to amend the text of Article 151. Accordingly, in light of the current wording of Article 151 of the PDCC, the study shows that Palestinian contracting parties cannot refer to the Unified Principles of International Trade Contracts 2016 to fill the legislative vacuum in cases of changed circumstances, because it is not possible to agree on anything contrary to the provisions of the contingency-unforeseen circumstances theory.

Change of Circumstances and Force Majeure Clauses in Serbian Legal System and Sources of International Uniform Law

Abstract The effects of globalisation are many. One of them is the effect that globalisation has on commercial contracts and contractual relations between contracting parties. Due to a fast pace of economy and the speed and volume of the conclusion of contracts in international trade, participants must rely on stable and reliable legal framework for contractual obligations. In globalised economy, traders from different countries bring with them individual trade practices and norms of national legislation, often diametrically opposed, and sometimes the legal institutes that are regulated in one country don’t even exist in another. This is the case with the institutes of force majeure and a change of circumstances. Due to large differences in the regulation of these two institutes in national legal systems, there have been demonstrated some attempts of standardisation and creation of a unified system of exemption from liability for non-performance, due to force majeure or a change of circumstances. This problem becomes even more evident when dealing with the long term contracts, which are prone to the effects of unforeseen circumstances. This paper aims to explore the nature of the above mentioned legal institutes in some of the most important sources of international commercial law. With a special attention paid to the Serbian regulatory solutions, in order to further understand the similarities and differences between the national legal systems and sources of international law. The first part of the paper deals with applicable legal framework in Republic of Serbia, concerning force majeure and a change of circumstances. The second part of the paper deals with the international sources of commercial law, such as UN Convention on Contracts for the International Sale of Goods of 1980; UNIDROIT Principles of International Commercial Contracts; Principles of European Contract Law; Draft Common Frame of Reference; and Common European Sales Law.

Analysis of the Legislative Resolution of the European parliament on the Common European Sales Law

The aim and objective of this paper is to analyse the development of the contract law of the European Union and review the main changes introduced by the European Parliament Legislative Resolution on the Common European Sales Law compared to the original Proposal for a Regulation from 2011. At the beginning of the paper, an overview of the development of the European Union's contract law over the last decades has been presented. It includes various Directives and the Principles of European contract law by the Commission on European Contract Law. The paper further continues with explaining the ordinary legislative procedure in the European parliament and showing the process of adopting the Legislative Resolution on the Common European Sales Law to the adoption in the Council. The legal basis for its adoption is analysed in sequence. Furthermore, the structure and content of the Proposal and the Legislative Resolution is outlined. Finally, the new provisions of the Common European Sales Law that have been adopted by the European Parliament are explained.

The Concept of Damage, Compensation for Damage, and Foreseeability in the Common European Sales Law

The Concept of Damage, Compensation for Damage, and Foreseeability in the Common European Sales Law

The political morality of convergence in contract

AbstractOne of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory.The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its moral impetus as one that should underwrite contract law in all states, especially liberal states. But the essay argues that the legitimate contours of the formal right are contingent on tenets of political culture that vary across Member States. Similarly, substantive regulation of contract is morally compulsory and serves universal interests; the essay takes regulation of permissible work and remuneration for work as examples. But the rules and standards that best advance those moral interests depend on economic facts specific to individual political communities. The essay concludes by arguing that contract law is a poor tool by which to accelerate political and economic convergence.

NESĄŽININGŲ SĄLYGŲ PREKIAUTOJŲ TARPUSAVIO (B2B) SUTARTYSE KONTROLĖ PAGAL LIETUVOS TEISĘ

Iki šiol nesąžiningų sąlygų kontrolė suderinta tik sutarčių tarp verslo subjektų ir vartotojų (B2C) atžvilgiu, o apsauga nuo nesąžiningų sąlygų sutartyse tarp verslo subjektų (B2B) skiriasi priklausomai nuo šalies. Šis straipsnis papildo kitų autorių diskusijas, susijusias su nesąžiningų sąlygų reglamentavimu B2B sutartyse, atsižvelgiant į dabartinį reglamentavimą Lietuvoje, užsienio praktiką, negriežtosios teisės (angl. soft law) priemones ir Bendrosios Europos pirkimo–pardavimo sutarčių teisės (CESL) projekto pasiūlytą nesąžiningų sąlygų B2B sutartyse reguliavimą iš Lietuvos perspektyvos.

A Pluralist Approach to the Law of International Sales

International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to differences in legal systems which act as a non-tariff barrier to trade. This article focuses on the private law framework regulating international contracts of sale. During the twentieth century, the problem of diverse laws was primarily addressed by global uniform law such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, uniform law is rarely complete and has to be supplemented by national law, trade usage or party agreement. Because of gaps that exist in the CISG the Swiss government made a proposal for a new global contract law. But is this a feasible solution to the fragmentary state of international trade law? In Europe, signs of reluctance are setting in towards further harmonisation efforts. The Proposal for a Common European Sales Law (CESL) was recently withdrawn, and now Britain has voted to leave the European Union; rumour having it that more countries might follow. The current private law framework for international sales contracts consists of a hybrid system where international, national, state and non-state law function side by side. This article submits that universalism is not per se the most efficient approach to the regulation of international sales law and that economic forces require a more varied approach for business-to-business transactions. The biggest challenge, however, would be to manage global legal pluralism. It is concluded that contractual parties, the courts and arbitral tribunals can effectively manage pluralism on a case-by-case basis. 
 

Contract Interpretation: Brief Overview from the Standpoint of International and Trans-National Instruments

The role of contract in modern social and economic order can hardly be overestimated. Contract constitutes the legal form of economic exchange and in the same time it is an instrument for self-regulation which is used by agents in the market. Therefore contract bears much resemblance to the state law. Just as the state law, contract provides some obligatory rules which must be followed. And just as the provisions of state law, the terms of a contract are put in words of natural language. Since natural language allows for much ambiguity and polysemy, the problem of finding out the exact meaning of contract terms constitutes an important issue of modern law of contracts.Contract interpretation is a traditional topic within the realm of contract law. That is why the issue is always in the spotlight of researchers’ attention. Amongst contemporary publications the works of Catherine Mitchell, Steve J Cornelius, Lord Justice Lewison and David Hughes address the issue.Paper objective. The main objective of the paper is to figure out the most modern tendencies relating to contract interpretation. This goal is achieved through the analysis of influential international and trans-national authorities such as Vienna Convention on Contracts for the International Sale of Goods (CISG), UNIDROIT Principles of International Commercial Contracts (PICC), Principles of European Contract Law (PECL), Draft Common Frame of Reference (DCFR), Common European Sales Law (CESL).First of all the paper provides a brief overview of two opposite approaches to the interpretation of contract, namely objective theory of interpretation and subjective theory of interpretation which are also known as reliance theory and theory of will. The author states pros and cons of each theory and then goes on to analyzing how those two theories are reconciled in PICC, PECL, DCFR, and CESL. Also the author pays attention to different factors which one has to take into account while interpreting the contract. In this context some brief comparative observations are made.The main trend in evolution of modern rules on contract interpretation is that the boundary dividing subjective and objective interpretation is being more and more erased. Those two approaches are now combined in one complex solution of the problem. This solution can be worded as a kind of rebuttable presumption according to which the contract must be construed from the standpoint of hypothetical reasonable persons put in the same factual situation as the parties, unless there are firm evidences that there was an actual mutual intention of the parties to attach the contract some different meaning (i.e. different from the meaning which can be inferred by using the first approach).

Who Would Use the Common European Sales Law? An Empirical Analysis of Cross-Border Consumer Contracts in the European Internal Market

On October 11th 2011 the European Commission proposed a Common European Sales Law (CESL) for the European Union. One of the main aims of this optional instrument is to help businesses to avoid the complexity associated with dealing with multiple mandatory provisions of their customers’ home jurisdictions. In this study I used one of the datasets published by the European Commission to predict the characteristics of businesses that would have benefited from the introduction of the CESL. I also test whether the CESL would be an effective measure for addressing some of the legal barriers that the Commission intends to overcome. My results provide support for the Commission’s claim that the adoption of a Common European Sales Law would benefit some businesses and that it would allow them to improve their operations on the European internal market. However, the CESL may not be effective as a measure for overcoming all of the legal barriers that the Commission intended to address with its proposal.

ATVIROS KAINOS SUTARTIES MODELIS VIENOS KONVENCIJOJE, ŠVELNIOJOJE TEISĖJE IR LIETUVOS SUTARČIŲ TEISĖJE

Straipsnyje analizuojama atviros kainos sutarčių problematika. Straipsniu siekiama įvertinti, kokios koncepcijos yra laikomasi Vienos konvencijoje ir kaip keitėsi požiūris į atviros kainos sutartis nuo Vienos konvencijos priėmimo iki Pasiūlymo dėl pirkimo–pardavimo reglamento pateikimo. Straipsnyje analizuojama, koks modelis yra įtvirtintas Lietuvos sutarčių teisėje ir taikomas teismų praktikoje. Atviros kainos sutarties aspektai minėtuose instrumentuose analizuojami tiriant ofertos ir sutarties apibrėžtį, sutarties turinio aspektus ir taisykles, kurios padeda pašalinti atviros kainos spragas.