An Optional Instrument and the Disincentives to Opt In
Contratto e impresa / Europa, Vol. 17, No. 1, pp. 37-47, 2012
Posted: 8 Jun 2012 Last revised: 3 Sep 2012
Date Written: November 1, 2011
On 11 October 2011 the European Commission adopted the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011) 635 final). The document supplied in this article as a part of special issue no. 1-2012 of Contratto e Impresa/Europa on European Contract Law was presented to the Commission in the course of the preparatory work for the proposal. It comments on what is called the feasibility study, a text drafted by the Expert Group appointed in April 2010 and intended to prepare a future instrument on contract law. The feasibility study was published in May 2011 and contemplates the adoption of an optional instrument (OI) dealing with sales, some related services, and general contract law. It contains an annex of draft rules (DR), the basis for the Proposal that recently saw the light of the day. This paper comments on some aspects of the DR which may be relevant for businesses considering the choice of the OI. On 8 July 2011 the Commission distributed a further text to selected recipients which has apparently not been published. This paper will depart from the earlier draft, but take account of some amendments made in the later text. Some of the criticism enunciated here has led to changes in the final Proposal of October 2011. Yet, the author's comments do not reflect these changes which can however in part be explained by the remarks and suggestions provided.
Keywords: Common European Sales Law, optional instrument, opt-in, feasibility study, draft rules, scope, right to cure, interest for delayed payment
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