Die Bestimmung durch einen Dritten im Europäischen Vertragsrecht – Textstufen transnationaler Modellregelungen (Determination by a Third Party in European Contract Law – A Genetic Comparison of Transnational Model Rules)

Abstract

The European Commission proposal for a Common European Sales Law constitutes the topmost of a number of layers of (model) rules on European Contract Law that have built up over recent decades. In Art. 75, the proposal contains certain rules on the determination of contract terms by a third party, mostly an expert. This provision is analysed against the backdrop of its predecessors in earlier layers and the general historical and comparative background of its subject. Although rarely discussed, it has important repercussions for the attitude of a set of rules towards freedom of contract and the role of the court in contract law. In light of this context, several modifications are suggested. Concerning scope, the reference to price determination may easily be deleted, while the wording should be broadened so as to encompass expressly the determination of facts by the third party. Court control of the determination against the standard of gross unreasonableness is justified, but must not be mandatory. The concept of gross unreasonableness requires further elucidation. The possibility of replacing a grossly unreasonable determination by the court is appropriate. The provision should be generalized to address all reasons for failure of the mechanism; in case of failure, a determination by the court seems preferable over the appointment of a new third party as a default rule. Finally, practical problems concerning expert determination, i.e.questions of procedure and the relationship to arbitration, still need to be taken into account.

This article is published in this Research Paper Series as part of the special issue of the Rabel Journal in honour of Reinhard Zimmermann’s 60th birthday with the generous and exceptional permission of the rights owner, Mohr Siebeck. Full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.

Note: Downloadable document is in German.

Keywords: Common European Sales Law, CESL, DCFR, PECL, UNIDROIT Principles of International Commercial Contracts, price determination, expert determination, third party, private autonomy, freedom of contract, definiteness of contract