Full Description
The EU Member States' sales law and related areas are on the verge of a major change. With the 186 articles of the Common European Sales Law the Commission proposes an optional legal framework that covers the entire lifecycle of sales contracts and contracts for the supply of digital content, as well as related services. Although the aim is to govern these contracts without regard to other national rules of law, several aspects are not addressed and will continue to be governed by national rules. These national rules will also continue to apply if the parties decide not to submit their transactions to the CESL. Understanding the potential impact and usefulness of the CESL requires insight into its content, the relationship between the CESL and the other applicable national rules, and a critical analysis of its advantages and disadvantages. This book is the first to delve deeply into the content of the CESL and to analyse it from a Belgian law perspective.
Contents
How to opt into the Common European sales Law? Brief comments on the Commission's proposal for a regulation Martijn w. Hesselink 1. introduction 2. a second national regime 2.1. opting into the CESL . a choice of law 2.2. implications for B2C: article 6 Rome I Regulation 2.3. implications for B2B: the CISG 2.4. Substantive scope and multi-level contract law 2.5. a hybrid: common European and second national sales law 2.6. Common sales law, legal education and a common European legal space 2.7. To use the law 3. agreement 3.1. optional nature 3.2. B2B: implied and partial choice permitted 3.3. B2C: explicit choice required, no cherry picking 3.4. Time of agreement 4. Standard information notice 4.1. Does information protect consumers? 4.2. an ill-considered sanction 5. Conclusion CESL tools: issues settled, matters addressed, rules, principles, objectives and all its provisions Ignace CLAEYS 1. review of four basic drafting choices of the Commission 1.1. The lifecycle of a contract as a structuring model 1.2. a blend of rules for B2B and B2C 1.3. not limited to sales contracts 1.4. not limited to default rules 2. matters covered and matters not covered by the CESL 3. Tools for interpreting and supplementing the CESL 3.1. underlying objectives 3.2. underlying principles 3.2.1. freedom of contract 3.2.2. The duty to act in accordance with good faith and fair dealing 3.2.3. obligation to co-operate 3.2.4. fundamental rights and principles of the eu Charter of fundamental rights 3.2.5. reasonableness 3.2.6. freedom of form 3.2.7. reliance 4. To conclude: a spill-over effect of the CESL on national law? Pre-contractual information in the proposal for a Common European sales Law Jeroen Delvoie and Stijn Reniers 1. Introduction 2. pre-contractual information duties in Belgian law: some brief notes 2.1. introduction 2.2. pre-contractual information in the general law of obligations 2.3. Some specific regimes 2.3.1. The market practices and Consumer protection act 2.3.2. The e-Commerce act 2.3.3. Some other specific examples 3. pre-contractual information duties in the CESL 3.1. introduction 3.2. Some rules applicable to all agreements relevant for pre-contractual information 3.2.1. Good faith and fair dealing(?) 3.2.2. Duty to ensure that the information supplied is correct and not misleading 3.2.3. Duty to raise awareness of contract terms not individually negotiated 3.2.4. Contract terms derived from pre-contractual statements 3.3. pre-contractual information in B2C contracts 3.3.1. General framework 3.3.2. all B2C contracts: Standard information notice 3.3.3. all B2C contracts, other than distance and off-premises contracts 3.3.4. Distance contracts and off-premises contracts 3.3.5. Specific rules regarding distance contracts 3.3.6. Specific rules regarding off-premises contracts 3.4. pre-contractual information in B2B contracts 3.5. Contracts concluded by electronic means 3.6. remedies 4. The interaction between the CESL and national law in the pre-contractual phase: vigilance required 5. Conclusion Unaware of any evil: breath-taking, simply breath-taking - Articles 30 - 39 and 48 - 57 of the CESL Ludo Cornelis 1. introduction 2. Disappointing and misleading principles and objectives have been set 3. everything is possible and nothing is required (arts. 30 - 39 CESL) 4. how to come to an agreement 5. 'The battle of the forms' 6. The mainstay of obligations: their content 7. Defective expressions of will 7.1. Background 7.2. mistake 7.3. fraud 7.4. loopholes in mistake and fraud 7.5. Threats 7.6. unfair exploitation 8. Conclusion The right of withdrawal and unfair contract terms under the Proposal for a Common European sales Law Reinhard STEENNOT 1. introduction 2. optional nature of the CESL 3. The scope of the CESL is limited to certain contracts 4. right of withdrawal 4.1. Scope of application of the right of withdrawal 4.1.1. personal scope of application 4.1.2. material scope of application 4.1.2.1. Distance contracts 4.1.2.2. off-premises contracts 4.1.2.3. Justification of the existence of a right of withdrawal 4.1.2.4. Contracts excluded from the right of withdrawal 4.2. withdrawal period 4.3. information on the right of withdrawal 4.4. exercise of the right of withdrawal 4.5. effects of the exercise of the right of withdrawal 4.5.1. obligations on the part of the trader 4.5.2. obligations on the part of the consumer 4.6. ancillary contracts 4.7. Conclusion as regards the right of withdrawal 5. unfair contract terms 5.1. unfair contract terms in contracts between traders and consumers 5.1.1. The black and the grey list of unfair terms 5.1.1.1. identical and similar prohibitions 5.1.1.2. Broader prohibitions 5.1.1.3. new prohibitions 5.1.1.4. missing prohibition 5.1.2. other unfair contract terms 5.1.3. exclusions from the unfairness test 5.1.4. impact of the consumer's choice to apply CESL on its protection 5.1.4.1. private international law 5.1.4.2. role of private international law once the CESL has been chosen 5.1.4.3. evaluation 5.2. unfair contract terms in contracts between traders 5.3. effects of unfair contract terms 6. Conclusion duties of buyer and seller. transfer of risk Ralph Dewit 1. introduction 2. Brief overview of the parties' duties in Belgian sales law 3. The seller's duties in the CESL 3.1. overview 3.2. place of delivery 3.3. method of delivery 3.4. Time for delivery 3.5. Carriage of the goods 3.6. Buyer's refusal to accept 4. Conformity of the goods and digital content 4.1. principle 4.2. Specific rules on conformity with regard to consumers 4.3. Criteria for conformity 4.4. incorrect installation under a consumer sales contract 4.5. Third party rights or claims 4.6. Time to test conformity 5. The buyer's duties under the CESL 5.1. overview 5.2. method of payment 5.3. place of payment 5.4. Time for payment 5.5. payment by third party 5.6. imputation of payment 5.7. reception of the goods 6. Transfer of risk 6.1. General 6.2. Consumer sales 6.3. Commercial sales 7. Conclusion remedies under the optional Common European sales Law - a good alternative for Belgian sales law? Regine Feltkamp and Frederic Vanbossele 1. introduction 2. General characteristics of the CESL's remedies regime 2.1. one legal framework for remedies 2.2. autonomous and self-standing instrument 3. Construction of the remedies regime 3.1. General 3.2. non-performance as a key triggering event for remedies 3.2.1. notion 3.2.2. limitations on non-performance as a triggering event 4. remedies of the buyer / customer 4.1. General 4.2. Suspension or loss of buyer's remedies 4.2.1. Seller's right to cure 4.2.2. limitation in the event of non-conformity 4.2.3. remedies under CESL 4.2.3.1. requiring performance 4.2.3.2. withholding performance of the buyer's obligation 4.2.3.3. Termination for non-performance 4.2.3.4. price reduction 4.2.3.5. Compensation for damage 5. remedies of the seller / service provider 5.1. General 5.2. remedies 5.2.1. requiring performance of the buyer's obligations 5.2.2. right to withhold performance 5.2.3. Termination 5.2.4. interest and damages 6. Conclusion damages and interest under the CESL proposal: not too different from Belgian law Joke Baeck 1. Scope of Chapter 16 CESL 2. requirements for damages 2.1. non-performance 2.2. loss 2.3. Causation 2.4. excused non-performance 2.5. not required: notice of the non-performance 3. measuring damages 3.1. General measure 3.2 Specific guidelines (when the creditor has terminated the contract) 3.2.1. Substitute transaction 3.2.2. no substitute transaction 3.3. no provisions on penalty clauses 4. Contributory negligence 5. mitigation of loss 6. late payments 5.1. late payments by consumers 5.2. late payments by traders 5.2.1. late payment of the contract price 5.2.2. late payment of a sum of money other than the contract price 7. Conclusions and recommendations restitution under the CESL proposal: to be revised - Joke Baeck 1. The basic principles of the restitution regime 2. The restitution rules in detail 2.1. restitution of goods 2.1.1. restitution in kind is possible 2.1.2. restitution in kind is no longer possible 2.1.3. restitution of fruits 2.1.4. payment for use 2.1.5. Compensation for expenditure 2.2. restitution of money 2.3. restitution of digital content 2.4. restitution of related services 2.5. exception for contracts to be performed in instalments or parts 2.6. flexibility clause 2.7. mandatory nature 3. Conclusions and recommendations CESL: change of circumstances and prescription Denis Philippe 1. Change of circumstances 1.1. Belgian law: an overview 1.1.1. Definition 1.1.2. recognition in Belgian law 1.2. hardship in the CESL 1.2.1. Scope of application 1.2.2. Conditions of application 1.2.2.1. 'after conclusion' condition 1.2.2.2. 'excessively onerous' condition 1.2.2.3. force majeure and hardship 1.2.2.4. risk 1.2.3. Burden of proof 1.2.4. effects 1.2.4.1. negotiations 1.2.4.2. The judge 1.2.4.3. revision criteria 2. prescription 2.1. Scope of application 2.2. nature 2.3. Duration 2.3.1. General trend toward shorter terms of prescription 2.3.2. Sales to the consumer 2.3.3. Short prescriptions of Belgian law 2.4. Commencement 2.4.1. how to apprehend the concept of knowledge of the fact in the short time bar period 2.4.2. Commencement of the long period 2.4.3. Continuing obligation 2.5. extension 2.5.1. Suspension 2.5.1.1. procedure 2.5.1.2 effects of the suspension 2.5.1.3. negotiations 2.5.1.4. other grounds for suspension a) Can fraud suspend the long term prescription? b) Contra non valentem non currit praescriptio c) prescription between spouses 2.5.1.5. effects of the suspension 2.5.2. prolongation of prescription 2.5.2.1. Judicial procedure 2.5.2.2. postponement of expiry in case of incapacity 2.6. effects of prescription 2.7. agreements concerning prescription 3. Conclusions Index
