Perspektiven des künftigen österreichischen und europäischen Zivilrechts – Zum Verordnungsvorschlag über ein Gemeinsames Europäisches Kaufrecht (Perspectives of the Future Austrian and European Private Law – On the Proposal for a Regulation on a Common European Sales Law)
Juristische Blätter (JBl), Vol. 134, No. 1, pp. 2-22, January 2012
Posted: 7 Dec 2011 Last revised: 2 Sep 2012
Date Written: December 7, 2011
The lecture, given on the occasion of the 200th anniversary of the Austrian Civil Code, briefly looks at the role of that code in international comparative discourse. As all the other national civil codes, it will in future be faced with a rival: a Common European Sales Law for which the European Commission has published a Proposal on 11 October. After discussing the genesis of this proposal the lecture attempts to provide, in its main part, a first critical assessment. While emphasizing that the idea of an optional code seems to be attractive, in principle, it points to a number of unjustifiable gaps as well as other defects in the proposal submitted by the Commission. A critical analysis is considerably impeded by the fact that no travaux préparatoires are available; often, therefore, the reader can only speculate why the draftsmen of the proposal have taken one or another specific decision. The Common European Sales Law, as it is proposed now is not likely to have a great impact in legal practice. This is due, inter alia, to its scope of application which is restricted in several ways, and also to the overly complex rules relating to the agreement to make use of it. The general conditions for the success of the Common European Sales Law, particularly as far as its uniform interpretation is concerned, are also distinctly unfavorable. Moreover, it must be noted that the Commission bases its proposal on a wrong legal basis.
Please note that this is an article published in German.
Keywords: acquis communautaire, Austrian Civil Code, CISG, codification, Common European Sales Law, consumer contract law, Europeanization of private law, optional instrument, principles of European Contract Law
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