Leiss MLE LLM EUI PhD Research Fellow Stipendiat The CESL and the Initiative on Contract Rules for Online Purchases from a Comparative Private Law perspective Outline ID: 244953
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Slide1
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 perspectiveSlide2
Outline of the Lecture
Comparative
Exercises
on
the
CESL
Initiative
on
Contract
Rules for Online
Purchases
Reflections
Legal
Harmonisation
and
Comparative
Law – Problems and
ProspectsSlide3
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
?Slide4
Comparative ExercisesArticle 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 […].Slide5
Comparative Exercises
Anders 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?Slide6
Comparative ExercisesArticle 48 of the Annex to the CESL Mistake
1. 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.Slide7
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?Slide8
Comparative ExercisesArticle 6 (1) of
the
CESL
The Common European Sales Law may
not
b
e 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.Slide9
Comparative ExercisesArticle 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
[…].Slide10
Comparative ExercisesArticle 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
[…].Slide11
Contract Rules for Online Purchases of Digital Content and Tangible Goodshttp://ec.europa.eu/priorities/digital-single-market/index_en.htmSlide12
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.Slide13
Contract Rules for Online Purchases of Digital Content and Tangible GoodsHow to qualify a contract on
the
purchase
of
digital
content
?
Sales
law
is
applicable
in
France, Germany, Italy, The Netherlands, Norway, the US and the
UK
Differentitation
by
tangibility
in Norway, France and
Poland
Purchase
of
medium
which
supplies
the
digital
content
and
purchase
of
the
digital
content
are
one
single
operationSlide14
ReflectionsPierre Legrand, The Impossiblity
of “Legal Transplants”, 4 Maastricht Journal of
Euroepan
and Comparative Law 111, 1997Slide15
ReflectionsIs it possible to harmonize private law without destroying domestic private laws?Slide16
ReflectionsWhat is the link between harmonization and Comparative private law?Slide17
ReflectionsIs harmonization the end of comparative private law in Europe?Slide18
ReflectionsWhat are the pros and what are to cons for harmonisations?Slide19
ReflectionsIs harmonization possible with 25 different languages in the EU?Slide20
ReflectionsWhich option of harmonization in the EU in private law matters do you think is preferable?