Origin and Ambitions of the Common European Sales Law, Especially Its Chapter on Contents and Effects

Abstract

This chapter explores the origin and the ambitions of the CESL and its rules on contents and effects of contracts. Firstly, the chapter evidences how the CESL relies on previous models such as the Vienna Convention on the International Sale of Goods (CISG), the Principles of European Contract Law (PECL), the Unidroit Principles of International Commercial Contracts (UPICC), the Draft Common Frame of Reference (DCFR), and some EU directives in the field of contract law. The chapter thereby demonstrates that the CESL rules on contents and effects of contracts are not innovative, since almost all of them originate from the PECL (with the exception of two rules, of which one takes pattern from the DCFR and the other follows the model of the EU Consumer Rights Directive). Secondly, this chapter discusses whether the ambition of the CESL really consists in improving the functioning of the internal market, as the choice of art 114 TFEU as a legal basis might suggest. The chapter criticizes the latter choice and submits that invoking art 114 TFEU for such an instrument is hardly compatible with the case law of the ECJ. Arguably, the most important ambition of the CESL is not its internal market functionality but a different one: The CESL substantially contains model rules of general contract law, suitable for all contracts, not just for sales of goods or digital content. Therefore, the CESL rules are important for the future of private law in Europe.