Art. 69: Pre-contractual Statements Under Article 69 CESL – Remake or Revolution?

Abstract

Pre-contractual statements regarding the characteristics of the goods for sale can strongly influence the buyer’s initial purchase decision. AArticle 69 of the draft proposal for a Common European Sales Law (CESL) tried to solve this problem by holding the seller liable not only for his own statements but, in certain circumstances, also for those ones made by the producer and other persons in the chain of transactions. In comparison to current European consumer law the provision would have broadened the seller’s contractual obligations. Apart from several consistency issues which were not resolved until the Commission finally withdrew its draft in its Work Programme for 2015, the CESL especially failed to provide for an adequate right of redress of the final seller. Thereby it would have burdened sellers with a comprehensive duty to monitor advertising campaigns on a European scale and, in consequence, with a vast liability for incorrect statements made by third parties. As a result, this concept hardly would have encouraged professional traders to regularly choose the optional instrument as a legal basis for their business engagements Therefore, the Commission’s current Digital Single Market Strategy should not revive the rules laid down in Article 69 as a whole. Instead, it should rather limit liability to pre-contractual statements made by the seller himself, his representatives, and the producer – given that the seller can be expected to know about the latter ones – while providing for an adequate right of redress up the whole chain of transactions at the same time.