The Effect of Merger and Non-Reliance Clauses According to Art. 72 of the Commission’s Draft of the Common European Sales Law (CESL) – A Model for New Instruments for International or European (Consumer) Sales Law?

Abstract

The present chapter will critically examine Art 72 CESL on merger clauses. As a basis for this evaluation, a short comparison of the rules in England, Germany, the Netherlands, and the CISG on the validity and effects of merger clauses and, in the case of England, additionally non-reliance clauses will be provided. The chapter continues by examining the “stages of the text” which finally led to the CESL, before addressing scope of application, the interaction with other rules of the CESL and the final effect of Art 72 CESL. That will provide the basis for a separate evaluation of Art 72 CESL for B2C and B2B contracts. Finally, some concluding remarks and suggestions on how the Article should be changed will be given. Thereby, some guidance for the drafting of modern rules for business sales law, both, nationally and internationally is provided. It is also analyzed, in how far Art 72 CESL is suitable to form the basis for an optional instrument for consumer sales contracts in e- and m-commerce, as it seems to be suggested as part of the program on the digital agenda by the European Commission in the future.