The binding power of the contract. Protection of performance in the system of the Common European Sales Law

• Date: 07 September 2012
• Pages: 259-265
• DOI: https://doi.org/10.1108/14770021211267360
• Published date: 07 September 2012
• Author: Fryderyk Zoll
• Subject Matter: Economics

The binding power of the contract

Protection of performance in the system

of the Common European Sales Law

Fryderyk Zoll

Department of Civil Law/Foreign Law, Jagiellonian University,

Krakow, Poland

Abstract

Purpose – The purpose of this article is to investigate the role that the principle of pacta sunt

servanda plays in consumer contracts under the Common European Sales Law (CESL).

Design/methodology/approach – The new proposal for the CESL resembles quite closely other

global and European instruments and collections of rules on contracts, such as the CISG, PECL, and

DCFR. At a closer look, the concept of contract, and in particular the consumer contract, differences

between the CESL and its predecessors becomes readily apparent. This article will point out these

differences and thereby analyse the role of the pacta sunt servanda principle in consumer contracts.

Findings – The question must be answeredwhether the consumer protection provisions that weaken

the bindingness of contracts will discourage traders from opting into CESL? The Article also shows

the inconsistencies in the CESL in business-to-business (B2B) contracts in the areas relating to mistake

and lack of conformity.

Originality/value – The article poses a question which is of such relevance that it should be more

comprehensively discussed by European legislators before the CESL is adopted as an EU regulation.

Keywords Consumers, Contractof sale, Contract of related services,Non-performance, Right to cure,

Termination,Pacta sunt servanda, Rightto withdraw, Defects of consent, Remedies,Lack of conformity,

Regulation, Contracts

Paper type Research paper

I. The Contract Law of the CESL – between tradition and innovation

The picture of the contract law provided by the Common European Sales Law (CESL)[1]

at the beginning looks familiar to everybody who has followed the development of the

European private law through the at least last to three decades (Schulte-No

¨lke, 2012).

CESL is rooted in the tradition of the CISG[2], it ref‌lects the concepts of the Principles of

European Contract Law (PECL) (Lando and Beale, 1999) and it is a text “in dialogue”

with the Draft Common Frame of Reference (DCFR) (Schulte-No

¨lke, 2012; von Bar and

Clive, 2009; Zoll, 2012). Certainly, the Consumer Sales Directive has provided a frame

and reference for the consumer law of the CESL. It easy to f‌ind in the CESL these

foundational elements, characteristic for the contract law envisaged in all named sources

(Schulte-No

¨lke and Zoll, 2012). The provisions on the formation of contract[3],

pre-contractual information duties[4], defects of consent[5], unfair terms, performance

and non-performance looks on f‌irst view as a certain simplif‌ication and reduction of the

DCFR, while maintaining the main concept of the contract arising from this act.

The DCFR was built on the core concept of strengthening the principle of pacta sunt

servanda (Schulte-No

¨lke and Zoll, 2012, p. 12). Even if according to various directives the

DCFR provides also for the consumer a free right to withdraw from the contract within a

given period, in certain qualif‌ied contractual situations[6], it may be disputed whether

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Binding power

of the contract

259

Journal of International Trade Law

and Policy

Vol. 11 No. 3, 2012

pp. 259-265

qEmerald Group Publishing Limited

1477-0024

DOI 10.1108/14770021211267360