Kre Lilleholt Comparative Private Law 2012 A Common

Kåre Lilleholt Comparative Private Law 2012

A Common European Sales Law? • Proposal for regulation: COM(2011) 635 final • An optional “ 2 nd 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) • Co. PECL 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 German law Norwegian law Existing law CESL French law Existing law 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