Identification of Gaps and Gap-Filling under the Common European Sales Law – A Model for Uniform Law Instruments?

Abstract

The success of any uniform law instrument in the area of contract law will to a large degree depend on whether it offers a convincing solution for the issue of gap-filling. This chapter analyses to what extent the approach taken by the CESL can serve as a model. The topic is addressed in three steps. First, the delineation between two different categories of lacunae in the Proposal that require supplementation – internal and external gaps – is examined. The chapter then analyses the different techniques provided by the CESL for supplementing such gaps and compares them with the approach taken by the CISG. Finally, a specific problem of gap-filling is discussed that occurs with regard to the control of unfair contract terms.