I agree with Andrew’s point below.  I think this is a farce, and a pretty pointless one at that (some farces do have points I think).  To take two substantive examples from my own areas of interest:

 

Article 102 (1): ‘The goods must be free from and the digital content must be cleared of any right or not obviously unfounded claim of a third party.’  What does this mean?  What is a ‘not obviously unfounded claim of a third party’?  And, having in essence set out a SGA s12 type rule here, the regulation mentioned nothing about title disputes.  From my brief overview (and I’d be grateful for specifics on this), this Regulation has no provisions dealing with nemo dat disputes; a particular error if this is so because of the clear differences between say, English and Italian law (ie the very purpose of this regulation is being ignored on this particular issue).  It has provisions that void a contract brought about by mistake (Article 48 (mistake makes contracts voidable; Article 54 – once avoided a contract is ‘retrospectively invalid from the beginning’); but nothing about what happens when goods are purchased by a third party (ie the whole SGA s23 issue).  This is a real issue because even though this is in essence consumerist legislation, it will cover business-to-business transactions where the business is an SME (less than 250 employees and with a turnover of less than Euro 50m), which will cover probably most of the nemo dat cases that exist in the English corpus.

 

And with this Article 130(1) ‘If the seller delivers the goods or supplies the digital content before the time fixed, the buyer must take delivery unless the buyer has a legitimate interest in refusing to do so.’  (2)‘If the seller delivers a quantity of goods or digital content less than that provided for in the contract the buyer must take delivery unless the buyer has a legitimate interest in refusing to do so.’  What on Earth does this mean?  This is, to my mind, bonkers.  The buyer must take delivery if the goods are delivered early, and/or if there is a shortfall, unless he has a ‘legitimate interest in refusing to do so’.  Surely he has a legitimate interest because (a) they’ve not turned up at the right time (on which point you don’t need to have suffered at the hands of the postal service to recognise the problems of non-adherence to stated delivery times), or (b) they’ve not delivered the quantity of goods required.  To my mind, having just spent far too long with SGA s30, Article 130 of this Regulation is a misunderstanding of the English law, which is badly written (and historically incorrect) in the first place.

 

Just some brief examples, but this is terrible mess I think.  A good idea but very badly executed.  And I won’t even say anything about good faith…

 

Sean.

 

 

 

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:

 

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