Thanks enormously to Donald for this

At first sight (and I may be wrong), this seems the sort of typically cumbersome and bureaucratic document that we've learnt to expect from the European Union. It's an unwieldy amalgam of the CISG, the CFR and various consumer provisions spatchcocked together in an enormous document of nearly 200 sections, many of them pretty convoluted. But despite this, it also I notice contains an almost incredible provision peremptorily forbidding courts to refer to any other system of law whatever in trying to understand it - see Art 4.2).

Quite apart from the substantive content (which will certainly take me some days to digest), the rules as to applicability alone verge on the bizarre. To begin with, there are vary many provisions which can't be ousted by agreement, but then the regime doesn't apply at all unless specifically chosen (and pretty formally at that, at least in consumer cases -- Art 8.2 of the Regulation). What does this mean? If English law allows me to contract on what terms I like, and I contract on the terms of the sales law but exclude the duty of good faith, what follows? Am I regarded as having chosen the new regime so that the exclusion is void, or as not having chosen the new regime at all?  We're then told the regime can't be chosen in part in consumer contracts (Regulation, Art 8.3). What does this signify? Suppose I draft a consumer agreement that quotes a number of sections from the new sales law: is this effective or not? If it isn't the new law is an ass: if it is, Art 8.3 is, like Cinderella, all dressed up with nowhere to go. Similarly with the prohibition on using the new regime between traders neither of whom is an SME (the apparent result of Regulation, Art 7.1) or for mixed contracts (Regulation, Art 6.1).


Or am I missing the point somewhere?


Andrew




On 11/10/11 12:32, Donald Macdonald wrote:

Dear all,

 

The European Commission has just issued its proposed contract law harmonisation instrument, following on its "Feasibility Study" and Draft Common Frame of Reference:

 

http://ec.europa.eu/justice/contract/files/common_sales_law/regulation_sales_law_en.pdf

 

It is proposed to be a Regulation for an optional sales law (ie parties will be able to opt into it).  Existing IPL rules will still apply, and some aspects of contract law (eg representation, illegality) aren't covered.  Besides sales, supply of digital content and related services (eg repairs)  are to be covered.  It will apply to cross-border sales (etc) which are business-to-consumer, or are B - to - B with at least one being a Small or Medium Enterprise (at least one of the countries being an EU member state).   Member states will be able to extend this to domestic sales and non-SME contracts.

 

Ross Macdonald  (Uni of Dundee)

 

 

 

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