Johann Ruben - PowerPoint Presentation

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?