Restitution of Performances after Avoidance of Contracts under the CESL and Estonian Law

• Author: Age Värv
• Position: LL.M., Lecturer in Civil Law University of Tartu
• Pages: 41-51

41

JURIDICA INTERNATIONAL XX/2013

Age Värv

LL.M., Lecturer in Civil Law

University of Tartu

Restitution of Performances

after Avoidance of Contracts

under the CESL

and Estonian Law

1. Introduction

In October 2011, the European Commission issued a proposal for a regulation of the European Parlia-

ment and of the Council on a common European Sales Law*1 (CESL). The aim of the future regulation is to

improve the establishment and the functioning of the internal market by facilitating the expansion of cross-

border trade for business and cross-border purchases for consumers. The CESL rules would apply only

upon express agreement of the parties to a cross-border contract. It is contended that the rules of a CESL

should maintain or improve the level of protection that consumers enjoy under European Union consumer

law.*2

In academic circles, the CESL has already received much attention*3, including suggestions as to how

the proposed rules should be redrafted.*4 The present article focuses on the text of the proposed CESL as it

stands and compares certain aspects of the CESL and Estonian civil law. It has been found in Estonian legal

literature that, with regard to contractual remedies and standard terms, the CESL rules provide for more

favourable treatment of a consumer than does Estonian law.*5 This article focuses on the rules on restitu-

tion of performances, with particular stress on the avoided contracts. The rules of Part VII of the proposed

CESL on restitution (Articles 172–177) are compared to those of Estonia’s Law of Obligations Act*6 (LOA)

1 COM(2011) 635 fi nal.

2 Proposed CESL, Recital 11.

3 See, for example, the bibliography compiled by Ewoud Hondius: E. Hondius. Common European Sales Law: If it does not

help, it won’t harm either(?). – European Review of Private Law 2013/1, pp. 1–12.

4 Statement of the European Law Institute on the Proposal for a Regulation on a Common European Sales Law COM(2011)

635 fi nal, 2012. Available at http://www.europeanlawinstitute.eu/fi leadmin/user_upload/p_eli/Publications/S-2-2012_

Statement_on_the_Proposal_for_a_Regulation_on__a_Common_European_Sales_Law.pdf (most recently accessed on

8.4.2013).

5 K. Sein. Tarbija õiguste kaitse Euroopa müügiõiguse eelnõus: kas kõrgem tase Eesti tarbija jaoks? [‘Protection of

consumer rights in the draft of the European Sales Law: A step ahead for Estonian consumers?’]. – Juridica 2013/1, p. 73

(in Estonian).

6 Võlaõigusseadus. – RT I 2001, 81, 487; RT I, 8.7.2011, 6 (in Estonian). Available in English at http://www.legaltext.ee/en/

andmebaas/ava.asp?m=022 (most recently accessed on 8.4.2013).