Contracts of Indeterminate Duration: Article 77 CESL – A Comment from a German Perspective

in: Contents and Effects of Contracts-Lessons to Learn From The Common European Sales Law; Colombi Ciacchi, Aurelia (Ed.), Springer 2016

Posted: 23 Sep 2016 Last revised: 15 Sep 2017

See all articles by Franziska Weber

Franziska Weber

Erasmus University Rotterdam School of Law, Rotterdam Institute of Law and Economics

Date Written: 2012

Abstract

Unlike the Common Principles of European Contract Law or the Draft Common Frame of Reference in their respective provisions concerning contracts of indeterminate duration, art 77 CESL read that such a contract could be terminated by default by either party upon giving a reasonable period of notice not exceeding 2 months. Art 77 (2) CESL furthermore made this provision mandatory for b2c contracts. Deviations to the detriment of the consumer were prohibited. When the CESL-proposal was withdrawn, the Commission announced a new instrument limited to online purchases of digital content and tangible goods that is currently being drafted. In this context, contracts of indeterminate duration remain of relevance and a provision is, hence, likely to be included again.

This chapter assesses the CESL-regime concerning contracts of indeterminate duration in the light of German law. Like German law, the CESL followed a system of special substantive control for the non-individually negotiated contract terms. Therefore, on the whole four different scenarios will be assessed: an individually negotiated clause in a b2c contract and likewise a non-individually negotiated one; and in the same way, an individually negotiated clause in a b2sme contract and likewise a non-individually negotiated one.

The critical analysis leads to suggestions for improvement regarding the contracts of indeterminate duration under the new instrument.

Keywords: Contracts of indeterminate duration, European contract law

Suggested Citation

Weber, Franziska, Contracts of Indeterminate Duration: Article 77 CESL – A Comment from a German Perspective (2012). in: Contents and Effects of Contracts-Lessons to Learn From The Common European Sales Law; Colombi Ciacchi, Aurelia (Ed.), Springer 2016, Available at SSRN: https://ssrn.com/abstract=2840754

Franziska Weber (Contact Author)

Erasmus University Rotterdam School of Law, Rotterdam Institute of Law and Economics ( email )

Campus Woudestein Burgemeester Oudlaan 50
Rotterdam, 3062 PA
Netherlands

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