Standard Contract Terms Regulation in the Proposal for a Common European Sales Law
Zeitschrift für Europäisches Privatrecht 2012(4), pp. 776-796
26 Pages Posted: 11 Jun 2012 Last revised: 24 Jun 2013
Date Written: May 31, 2012
In this paper, the regulation in standard contract terms in the proposal for a Commono European Sales Law (CESL) is compared with the regulation in the Unfair Terms Directive, the Draft Common Frame of Reference (DCFR) and the Vienna Sales Convention (CISG). The paper starts with an overview of the content of Chapter 8 CESL. Next, the matter of the incorporation of standard contract terms is dealt with, in particular with a view to commercial contracts. Section IV is dedicated to a discussion of the limitations for the unfairness test. The principle of transparency constitutes the subject-matter of section V, whereas section VI deals with the unfairness test and section VII with the question whether the unfairness test is to be applied by courts of their own motion in commercial contracts as well as in consumer contracts. I conclude that with regard to standard terms regulation the CESL offers an improvement in many regards to the existing international legal instruments with regard to standard contract terms regulation. This applies in particular with regard to the clearly underdeveloped rules of the CISG. This is particularly relevant since both the CESL and the CISG are optional instruments intended to be applied to cross-border sales contracts. At least with regard to standard contract terms regulation, the CESL is to be preferred over the clearly underdeveloped rules of the CISG.
Keywords: Standard contract terms, Common European Sales Law, Vienna Sales Convention, Unfair terms Directive, DCFR, Incorporation of standard terms, Unfair terms
JEL Classification: K12
Suggested Citation: Suggested Citation