Johann Ruben Leiss, MLE, LL.M. (EUI) - PhD Research Fellow, Stipendiat -

The CESL and the Initiative on Contract Rules for Online Purchases

from a Comparative Private Law perspective

Outline of the Lecture

1. Comparative Exercises on the CESL

2. Initiative on Contract Rules for Online Purchases

3. Reflections Legal Harmonisation and Comparative Law – Problems and Prospects

Comparative Exercises

Anders concludes a contract on the sale of a bicycle with Marta, who is the owner of a bicycle online shop. Anders pays the price and Marta hands over the bicycle to Anders.  However, the bicycle has no paddles and no handlebar. Therefore, Anders wants to terminate the contract.

Is this possible under the CESL?

Is this possible under your domestic law?

Comparative Exercises

Article 106 of the Annex to the CESL

Overview of buyer’s remedies

1. In the case of non-performance of an obligation by the seller, the buyer may do any of the following: […]

2. If the buyer is a trader:

(a) the buyer’s rights to exercise any remedy except withholding of performance are subject to cure by the seller […].

3. If the buyer is a consumer:

(a) the buyer’s rights are not subject to cure by the seller […].

Comparative ExercisesAnders and Marta concluded a contract on the sale of a car. Anders erred about the content of the written contract. He thought the contract dealt with the sale on a white Porsche. However, the sales contract in fact dealt with the sale of an old tractor. The reason for his error was that inattentive when concluding the contract. Is there a possibility to terminate the contract under the Common European Sales Law? Is there a possibility under your domestic law?

Comparative Exercises

Article 48 of the Annex to the CESL Mistake1. A party may avoid a contract for mistake of fact or law existing when the contract was concluded if:

(a) the party, but for the mistake, would not have concluded the contract or would have done so only on fundamentally different contract terms and the other party knew or could be expected to have known this; and

(b) the other party:

(i) caused the mistake;

(ii) caused the contract to be concluded in mistake by failing to comply with any pre-contractual information duty under Chapter 2, Sections 1 to 4;

(iii) knew or could be expected to have known of the mistake and caused the contract to be concluded in mistake by not pointing out the relevant information, provided that good faith and fair dealing would have required a party aware of the mistake to point it out; or

(iv) made the same mistake.

2. A party may not avoid a contract for mistake if the risk of the mistake was assumed, or in the circumstances should be borne, by that party.

Comparative Exercises

Pierre is a wine trader located in Bordeaux. He offers his wine in his online wine shop. Belonging to movement of environmental friendly wine sellers Pierre sales his wine in bottles which have to be returned after the wine has been consumed. Hans orders three boxes of wine from Pierre. Both agree on the applicability of the CESL. Is the CESL the only applicable law to this contract? What would be the applicable law in your domestic legal system?

Comparative Exercises

Article 6 (1) of the CESL

The Common European Sales Law may not be used for mixed-purpose contracts including any elements other than the sale of goods, the supply of digital content and the provision of related services within the meaning of Article 5.

Comparative Exercises

Article 59 of the Annex to the CESL

Relevant matters

In interpreting a contract, regard may be had, in particular, to […] usages which would be considered generally applicable by parties in the same situation […].

Comparative Exercises

Article 30 (1) (a) and (b) of the Annex to the CESL

Requirements for the conclusion of a contract

A contract is concluded if […] the parties reach an agreement [and] they intend the agreement to have legal effect […].

Contract Rules for Online Purchases of Digital Content and Tangible Goods• http://ec.europa.eu/priorities/digital-single-

market/index_en.htm

Contract Rules for Online Purchases of Digital Content and Tangible Goods

Definition of digital content:

Content which the consumer can access either on-line or through any other channels, such as a DVD or CD, and any other services which the consumer can receive on-line.

Contract Rules for Online Purchases of Digital Content and Tangible Goods• How to qualify a contract on the purchase

of digital content?o Sales law is applicable in France, Germany,

Italy, The Netherlands, Norway, the US and the UK

o Differentitation by tangibility in Norway, France and Poland

o Purchase of medium which supplies the digital content and purchase of the digital content are one single operation

Reflections

Pierre Legrand, The Impossiblity of “Legal Transplants”, 4 Maastricht Journal of Euroepan and Comparative Law 111, 1997

Reflections

• Is it possible to harmonize private law without destroying domestic private laws?

Reflections

• What is the link between harmonization and Comparative private law?

Reflections

• Is harmonization the end of comparative private law in Europe?

Reflections

• What are the pros and what are to cons for harmonisations?

Reflections

• Is harmonization possible with 25 different languages in the EU?

Reflections

• Which option of harmonization in the EU in private law matters do you think is preferable?