Common European Sales Law

La question de la prévisibilité du dommage à réparer est présente dans plusieurs systèmes juridiques. Elle n'est que sous-jacente en droit suisse ou allemand. Toutefois, l'art. 161 CESL reprend cette notion, sans que l'on puisse savoir si celle-ci est en ligne avec la notion-même de contrat retenu par le Common European Sales Law (CESL).  Après avoir rappelé la distinction romaine fondée sur le dommage circa ipsam rem, puis celle du Moyen-Age entre dommage circa
rem et dommage extra rem, le papier évoque la conception des codificateurs modernes, afin de pouvoir donner quelques pistes de réflexion pour l’interprétation de l’art. 161 CESL.

According to the Commission, the main political goal behind the Common European Sales Law (CESL) is advancing cross-border trade between EU member states, thereby helping to further establish and strengthen a common market within the EU. The CESL is chosen and even symbolized by an already legendary blue button that consumers have to push in order to opt into the new European law.

However, the blue button is more than a mere technicality: It aims at increasing consumer trust in cross-border trade by using the (expectedly) positive signaling effect of the European brand. Thus, if traders know that consumers are more likely to engage in cross-border trade on the basis of the CESL than by relying on a national contract law, offering to contract on this basis will be attractive to them for precisely this reason. If a CESL offer can be expected to increase consumers’ trust in a prospective transaction, traders will be able to use such an offer as a marketing instrument.

A similar branding strategy is known from the US online payment service PayPal who has established its “payment trust button” already a decade ago. The present article deals with the question to what extent PayPal’s success story can be transferred to European contract law and what lessons the European legislator can learn from it. Could the CESL with its blue button potentially become a new, PayPal-like mechanism for consumer protection by creating and strengthening consumer trust in cross-border trade?

A review of a commentary to "Common European Sales Law", edited by M. Schmidt-Kessel (Sellier, 2014). The text provides observations on the book's idea and content, along with more general remarks on the commentary as a form of legal writing. It tries to sum up the value of the book as a contribution to the common doctrinal output of the European private law. The text was published in "European Review of Private Law" 6/2015.

Against the background of the proposed Common European Sales Law (CESL), this chapter assumes that any instrument emerging from this proposal will share its key elements: that it will be an optional legal regime, available to govern cross-border sales (and related service contracts) where at least one party is located within a Member State; and that the regime will apply in both the consumer context and in the business context, although in the latter case only where a small or medium-sized enterprise is involved. This chapter evaluates the manner in which the CESL currently addresses language type issues, assesses its interplay with national provisions, and determines whether the current draft ought to be revised. The analysis is conducted in three stages. First, is identifies four potential models for language regulation, drawing on existing EU practice, and highlights selected national language regimes. Secondly, it examines the language-related provisions of the CESL proposal and its origins. Finally, the impact of the proposed CESL on these existing legal frameworks is discussed, and recommendations are made as to how it could be improved.

The authors present a few thoughts on the EU Commission initiative to create unified rules on international trade applicable inside the EU. To begin, there is a summary of the legislative works
leading to the draft Regulation on the Common European Sales Law. This law represents the first foray of the European legislators into the unification of the law through creation of an autonomous “28th regime” standing next to 27 MS national legal regimes. The authors then ruminate over the functionality of such a solution, as well as over the content of the proposed Regulation itself. Among the areas discussed are the practical issues of the application of the Regulation as well as polemics, whether the new Regulation could stand the test of the present international law and if, at the end, it could satisfy its purpose of simplifying the intra EU sales law.