Party Choice and the Common European Sales Law, or: How to Prevent the CESL from Becoming a Lemon on the Law Market

Maastricht European Private Law Institute Working Paper No. 2012/13

Common Market Law Review, Vol. 50, pp. 51-68, 2013

21 Pages Posted: 15 May 2012 Last revised: 10 Mar 2013

Jan M. Smits

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Date Written: 2012

Abstract

Optional legal regimes, such as the Proposal for a Regulation on a Common European Sales Law (CESL), must derive their success from being chosen by parties. This contribution asks on what conditions it is dependent whether parties will choose for an optional regime such as the CESL. This requires a clear view of the added value of so-called vertical jurisdictional competition, of the preferences of business and consumers, and of the choices available to contracting parties when designing their contractual relationship. It is argued that in order to be an attractive competitor on the law market, the proposed CESL must meet three requirements. First, it must be significantly different from existing options by offering more innovative solutions, reflecting an alternative view of contractual justice or offering a wider scope of application. Secondly, parties should be able to easily recognize the benefits of a choice for the CESL, calling for innovative ways of marketing such as user-based rankings. Thirdly, the costs of making the CESL applicable must be low compared to other available options. Only if these requirements are met – which is not the case with the present Proposal – it is avoided that CESL turns into a lemon on the European law market.

Keywords: CESL, contract law, European Union, optional regimes, jurisdictional competition, preferences, ranking

JEL Classification: K12

Suggested Citation

Smits, Jan M., Party Choice and the Common European Sales Law, or: How to Prevent the CESL from Becoming a Lemon on the Law Market (2012). Maastricht European Private Law Institute Working Paper No. 2012/13. Available at SSRN: https://ssrn.com/abstract=2060017 or http://dx.doi.org/10.2139/ssrn.2060017

Jan M. Smits (Contact Author)

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

HOME PAGE: http://www.jansmits.eu

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