JURIDICA INTERNATIONAL XX/2013
LL.M., Lecturer in Civil Law
University of Tartu
Restitution of Performances
after Avoidance of Contracts
under the CESL
and Estonian Law
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
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
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
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).