Principles of European Law on Sales (PEL S)

Transcription

1 Principles of European Law on Sales (PEL S)

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3 Principles of European Law Study Group on a European Civil Code Sales (PEL S) prepared by Professor Dr. Ewoud Hondius Dr. Viola Heutger Dr. Christoph Jeloschek Dr. Hanna Sivesand Aneta Wiewiorowska in collaboration with the Dutch Working Team with advice from the Advisory Council and the Drafting Commitee approved by the Co-ordinating Group Particular advice on the drafting of the Articles from Professor Eric Clive, Edinburgh Stæmpfli Publishers Ltd. Berne

4 The Dutch Working Team Amsterdam: Professor Martijn Hesselink; Dr. Jacobien Rutgers, Dr. Odavia Bueno Diaz (Spanish Law), Manola Scotton (Italian Law), Muriel Veldman; Tilburg: Professor Maurits Barendrecht, Professor Chris Jansen, Professor Marco Loos (Dutch Law), Dr. Andrea Pinna (French Law), Dr. Rui Cascao (Portuguese Law), Roland Lohnert (German Law, until June 2002), Stéphanie van Gulijk (as of December 2003); Utrecht: Professor Ewoud Hondius, Dr. John Dickie (English Law, until October 2002), Dr. Viola Heutger, Georgios Arnokouros (Greek Law, until the end of 2002), Dr. Christoph Jeloschek (Austrian Law), Dr. Hanna Sivesand (Swedish Law), Aneta Wiewiorowska (Polish Law) The Advisory Council on Sales Contracts Professor Hugh Beale (London/Warwick), Professor Johnny Herre (Stockholm), Professor Jérôme Huet (Paris), Professor Ewan McKendrick (Oxford), Professor Peter Schlechtriem (Freiburg i. Br.) National Reporters National notes from Austria (by Christoph Jeloschek), Belgium (by Isabelle Demortier), the Czech Republic (by Luboš Tichý and Tomas Dumbrovsky), Denmark (by Hanna Sivesand), England and Scotland (by Martin Hogg, Hector MacQueen and John Dickie), Estonia (by Martin Käerdi), Finland (by Dario Alessi), France (by Andrea Pinna), Germany (by Viola Heutger and Peter Rott), Greece (by Georgios Arnokouros), Hungary (by Norbert Csizmazia), Italy (by Manola Scotton and Dario Alessi), Latvia (by Viktorija Jarkina and Alla Pozdnakova), Lithuania (by Valentinas Mikelenas), the Netherlands (by Marco Loos), Norway (by Stine Snertingdalen), Poland (by Aneta Wiewiorowska), Portugal (by Rui Cascao and Marta dos Santos Silva), Slovakia (by Emilia Caprndova), Spain (by Odavia Bueno Diaz and Beatriz Fernández Gregoraci), Slovenia (by Damjan Mozina) and Sweden (by Hanna Sivesand). The Co-ordinating Group Professor Guido Alpa (Genua/Rome, until May 2005), Professor Kaspars Balodis (Riga, since December 2004), Professor Christian von Bar (Osnabrück, chairman), Professor Maurits Barendrecht (Tilburg, until May 2005), Professor Hugh Beale (London/Warwick), Dr. Mircea-Dan Bob (Cluj Napoca, since June 2007), Professor Michael Joachim Bonell (Rome), Professor Mifsud G. Bonnici (Valetta, since December 2004), Professor Carlo Castronovo (Milan), Professor Eric Clive (Edinburgh), Professor Eugenia Dacoronia (Athens), Professor Ulrich Drobnig (Hamburg), Professor Bénédicte Fauvarque-Cosson (Paris), Professor Marcel Fontaine (Leuven, until December 2003), Professor Andreas Furrer (Lucerne, since December 2003), Professor Jacques Ghestin (Paris), Professor Sir Roy Goode (Oxford, until December 2002),

5 Professor Viggo Hagstrøm (Oslo, since June 2002), Professor Arthur Hartkamp (The Hague, until December 2002), Justitierådet Professor Torgny Håstad (Stockholm), Professor Johnny Herre (Stockholm), Professor Martijn Hesselink (Amsterdam), Professor Ewoud Hondius (Utrecht, until May 2005), Professor Jérôme Huet (Paris), Professor Giovanni Iudica (Milan, since June 2004), Dr. Monika Jurčova (Trnava, since June 2006), Professor Konstantinos Kerameus (Athens), Professor Ole Lando (Copenhagen), Professor Kåre Lilleholt (Bergen/Oslo, since June 2003), Professor Brigitta Lurger (Graz), Professor Hector MacQueen (Edinburgh), Professor Denis Mazeaud (Paris, since June 2005), Professor Ewan McKendrick (Oxford), Professor Valentinas Mikelenas (Vilnius, since December 2004), Professor Eoin O Dell (Dublin, until June 2006), Professor Edgar du Perron (Amsterdam), Professor Denis Philippe (Leuven, since June 2004), Professor Jerzy Rajski (Warsaw), Professor Christina Ramberg (Gothenburg), Professor Philippe Rémy (Poitiers, until December 2004), Judge Professor Encarna Roca y Trias (Madrid/Barcelona), Professor Peter Schlechtriem (Freiburg i. Br., deceased 2007), Professor Martin Schmidt-Kessel (Osnabrück, since December 2004), Professor Jorge Sinde Monteiro (Coimbra, until December 2004), Professor Lena Sisula-Tulokas (Helsinki), Professor Sophie Stijns (Leuven), Professor Matthias Storme (Leuven), Dr. Stephen Swann (Osnabrück), Professor Christian Takoff (Sofia, since June 2007), Professor Lubos Tichý (Prague, since June 2005), Professor Verica Trstenjak (Maribor, until December 2006), Professor Vibe Ulfbeck (Copenhagen, since June 2006), Professor Paul Varul (Tartu, since June 2003), Professor Lajos Vékás (Budapest), Professor Anna Veneziano (Teramo) Further Members of the Study Group s Advisory Councils Professor John W. Blackie (Strathclyde, Tort and Trust Law), Professor Michael G. Bridge (London, Property Law and Security), Professor Angel Carrasco (Toledo, Security), Professor Pierre Crocq (Paris, Security), Professor Júlio Manuel Vieira Gomes (Oporto, Unjustified enrichment law and benevolent intervention in another s affairs), Professor Helmut Grothe (Berlin, Lease of Goods), Professor Irene Kull (Tartu, Donation, Trust Law), Professor Marco Loos (Amsterdam, Service Contracts; Mandate), Professor Guillermo Palao Moreno (Valencia, Tort Law), Professor Graham Moffat (Warwick; Trust Law, since May 2006), Professor Maria A. L. Puelinckx-van Coene (Antwerp, Donation), Dr. Kristina Siig (Arhus, Unjustified enrichment law and benevolent intervention in another s affairs), Professor Stefano Troiano (Verona, Donation), Professor Antoni Vaquer Aloy (Lleida, Donation and Lease of Goods), Professor Alain Verbeke (Leuven, Lease of Goods), Professor Anders Victorin (Stockholm, deceased 2006, Lease of Goods), Professor Sarah Worthington (London, Lease of Goods).

6 Volume 6 To be cited as: PEL/Hondius/Heutger/Jeloschek/Sivesand/Wiewiorowska, Sales, Chapter 1, Article 1:101,, A PEL/Hondius/Heutger/Jeloschek/Sivesand/Wiewiorowska, Sales, Chapter 1, Article 1:101,, 1 ISSN ISBN (Staempfli) ISBN (Bruylant) ISBN (sellier. european law publishers) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at by sellier. european law publishers, Munich together with Study Group on a European Civil Code. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the publisher. Design: Sandra Sellier, Munich. Production: Karina Hack, Munich. Typesetting: fidus Publikations-Service GmbH, Augsburg. Printing and binding: Friedrich Pustet KG, Regensburg. Printed on acid-free, non-ageing paper. Printed in Germany.

7 Foreword The Study Group on a European Civil Code has taken upon itself the task of drafting European principles (or model rules ) for the most important aspects of the law of obligations and for certain parts of the law of property in moveables which are especially relevant for the functioning of the Common Market. It was founded in 1999 as a successor body to the Commission on European Contract Law, on whose work the Study Group is building. The two groups pursue identical aims. However, the Study Group has a more farreaching focus in terms of subject-matter, and as an ultimate goal it aspires to a consolidated composite text, now called the Draft Common Frame of Reference (DCFR), of the material cultivated by the Group itself, the Commission on European Contract Law and the Acquis Group. All three groups have undertaken to ascertain and formulate European standards of patrimonial law for the Member States of the European Union. The Commission on European Contract Law achieved this for the field of general contract law (Lando and Beale [eds.], Principles of European Contract Law, Parts I and II combined and revised, The Hague, 2000; Lando/Clive/Prüm/Zimmermann [eds.], Principles of European Contract Law Part III, The Hague, 2003). These Principles of European Contract Law (PECL) are being adopted with adjustments by the Study Group to take account of new developments and input from its research partners. The Study Group is itself dovetailing its principles with those of the PECL, extending their encapsulation of standards of patrimonial law in three directions: (i) by developing rules for specific types of contracts; (ii) by developing rules for extra-contractual obligations, i. e. the law of tort/delict, the law of unjustified enrichment, and the law of benevolent intervention in another s affairs (negotiorum gestio); and (iii) by developing rules for fundamental questions in the law on mobile assets in particular transfer of ownership, security for credit, and trust. Like the Commission on European Contract Law s Principles of European Contract Law, the results of the research conducted by the Study Group on a European Civil Code seek to advance the process of Europeanisation of private law. We have undertaken this endeavour on our own personal initiative and merely present the results of a pan-european research project. It is a study in comparative law in so far as we have always taken care to identify the legal position in the Member States of the European Union and to set out the results of this research in the introductions and notes. That of course does not mean that we have only been concerned with documenting the pool of shared legal values or that we simply adopted the majority position among the legal systems where common ground was missing. Rather we have consistently striven to draw up sound and fitting principles, that is to say, we have also recurrently developed proposals and concepts for the further development of private law in Europe. The working methods of the Commission on European Contract Law and the Study Group on a European Civil Code are or were likewise quite similar. The Study Group, however, has had the benefit of Working (or Research) Teams groups of younger legal scholars under the supervision of a senior member of the Group (a Team Leader) which VII

8 Foreword undertook the basic comparative legal research, developed the drafts for discussion and assembled the extensive material required for the notes. Furthermore, a consultative body an Advisory Council was allocated to each Working Team. These bodies deliberately restricted in size in the interests of efficiency were formed from experts in the relevant field of law who are representative of the major European legal systems. The proposals drafted by the Working Teams and critically scrutinised and improved in a series of meetings by the respective Advisory Council, were submitted for discussion on a revolving basis to the actual decision-making body of the Study Group, the Co-ordinating Group. Until June 2004 the Co-ordinating Group consisted of representatives from all jurisdictions belonging to the EU immediately prior to its enlargement in Spring 2004 and in addition legal scholars from Estonia, Hungary, Norway, Poland, Slovenia and Switzerland. Representatives from the Czech Republic, Malta, Latvia, Lithuania and Slovakia joined us after the June meeting 2004 in Warsaw, representatives from Bulgaria and Romania after the December meeting 2006 in Lucerne. However, due to time and capacity constraints, a summary in the notes of the current legal position in the new Member States of the EU was not always possible. Along with its permanent members, other participants in the Co-ordinating Group with voting rights included all the Team Leaders and when the relevant material was up for discussion the members of the Advisory Council concerned. The results of the deliberations during the week-long sittings of the Co-ordinating Group were incorporated into the text of the Articles and the commentaries, and returned to the agenda for the next meeting of the Co-ordinating Group (or the one following, depending on the workload of the Group and the Team in question). Each part of the project was the subject of debate on several occasions, some stretching over many years. Where a unanimous opinion could not be achieved, majority votes were taken. As far as possible the Articles drafted in English were translated into the other languages either by members of the Team or third parties commissioned for the purpose. The number of languages into which the Articles could be translated varies from volume to volume. That is in part a consequence of the fact that not all Working Teams were equipped with the same measure of financial support. We also had to resign ourselves to the absence of a perfectly uniform editorial style. Our editing guidelines provided a common basis for scholarly publication, but on peripheral issues had to accommodate preferences of individual teams. However, this should not cause the reader any problems in comprehension. Work on these Principles had begun before the European Commission published its Communication on European Contract Law (in 2001), its Action Plan for a more coherent European contract law (in 2003), and its follow-up Communication European Contract Law and the revision of the acquis: the way forward (in 2004). These documents for their part were published before we formed the Network of Excellence, together with other European research groups and institutions, which with the support of funds from the European Community s Sixth Framework Programme for Research have been collaborating in the preparation of the Draft (or Academic) Common Frame of Reference (von Bar/Clive/Schulte-Nölke [eds.], Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference [DCFR], Munich, 2008). The texts laid before the public by the Study Group on a European Civil Code are not identical in every detail with those which the Network of Excellence is proposing to the European Commission. In some cases, the model rules encountered by the reader in the DCFR deviate from their equivalent published in this PEL series. In drafting a self- VIII

9 Foreword standing set of principles for a given subject it sometimes proved necessary to have more repetition of rules which were already part of the PECL. Such repetitions became superfluous in the integrated DCFR text which sometimes states these rules at a more general level. In order to leave no room for misunderstanding, it is important to stress that these Principles have been prepared by impartial and independent-minded scholars whose sole interest has been devotion to the subject-matter. None of us have been remunerated for taking part or mandated to do so. None of us would want to give the impression that we claim any political legitimation for promoting harmonisation of the law. Our legitimation is confined to curiosity and an interest in Europe. In other words, the volumes in this series are to be exclusively understood as the results of scholarly legal research within large international teams. Like every other scholarly legal work, they restate the current law and introduce possible models for its further development; no less, but also no more. Osnabrück, January 2008 Christian von Bar

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11 Our Sponsors The project of the Study Group on a European Civil Code represents a research endeavour in legal science of extraordinary magnitude. Without the generous financial support of many organisations its realisation would not have been possible. Our thanks go first of all to the Deutsche Forschungsgemeinschaft (DFG), which has supplied the lion s share of the financing, including the salaries of the Working Teams based in Germany and the direct travel costs for the meetings of the Coordinating Group and the numerous Advisory Councils. The work of the Dutch Working Teams was financed by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO). Further personnel costs were met by the Flemish Fonds voor Wetenschappelijk Onderzoek-Vlaanderen (FWO), the Onassis-Foundation, the Austrian Fonds zur Förderung der wissenschaftlichen Forschung, Norges forskningsråd (the Research Council of Norway) and the Fundação Calouste Gulbenkian. From the middle of 2005 onwards we have been able to rely on funds from the European Commission s Sixth Framework Research Programme. In addition, we have consistently been able to fall back on funds made available to the respective organisers of the week-long sittings of the Coordinating Group by the relevant university or other sources within the country concerned. It is therefore with the deepest gratitude that I must also mention the Consiglio nazionale forense (Rome) and the Istituto di diritto privato of the Università di Roma La Sapienza, which co-financed the meeting in Rome (June 2000). The session in Salzburg (December 2000) was supported by the Austrian Bundesministerium für Bildung, Wissenschaft und Kultur, the Universität Salzburg and the Institut für Rechtspolitik of the Universität Salzburg. The discussions in Stockholm (June 2001) were assisted by the Department of Law, Stockholm University, the Supreme Court Justice Edward Cassel s Foundation and Stiftelsen Juridisk Fakultetslitteratur (SJF). The meeting in Oxford (December 2001) had the support of Shearman & Sterling, the Hulme Trust, Berwin Leighton Paisner and the Oxford University Press (OUP). The session in Valencia (June 2002) was made possible by the Asociación Nacional de Registradores de la Propiedad, Mercantil y Bienes Muebles, the Universitat de València, the Ministerio Español de Ciencia y Tecnología, the Facultad de Derecho of the Universitat de València, the Departamento de Derecho Internacional, Departamento de Derecho Civil and the Departamento de Derecho Mercantil Manuel Broseta Pont of the Universitat de València, the law firm Cuatrecasas, the Generalitat Valenciana, the Corts Valencianes, the Diputación Provincial de Valencia, the Ayuntamiento de Valencia, the Colegio de Abogados de Valencia and Aranzadi Publishing Company. The subsequent meeting in Oporto (December 2002) was substantially assisted by the Universidade Católica Portuguesa Centro Regional do Porto. For the week-long session in Helsinki (June 2003) we were able to rely on funds from Suomen Kultuurirahasto (Finnish Cultural Foundation), the Niilo Helanderin Säätiö (Niilo Helander Foundation), the Suomalainen Lakimeisyhdistys (Finnish Lawyers Association), the Ministry of Justice and the Ministry for Foreign Affairs, the Nordea Bank, Roschier Holmberg Attorneys Ltd., Hannes Snellman Attorneys Ltd., the Department of Private Law and the Institute of International Commercial Law (KATTI) of Helsinki University. The session in Leuven (December 2003) was supported by Katholieke Universiteit Leuven, Faculteit XI

12 Our Sponsors Rechtsgeleerdheid, and the FWO Vlaanderen Fonds voor Wetenschappelijk Onderzoek (Flanders Scientific Research Fund). The meeting of the Group in Warsaw (June 2004) was substantially assisted by the Fundacja Fundusz Wspolpracy (The Cooperation Fund) and the Faculty of Law and Administration of Warsaw University. The meeting in Milan (December 2004) was supported by the Università Bocconi and its Istituto di diritto comparato, by the Milan Camera di Commercio, by the Associazione Civilisti Italiani and by the Comune di Milano. The meeting in Berlin (June 2005) was made possible by PricewaterhouseCoopers Deutschland AG, Frankfurt/Berlin; Sievert AG & Co., Osnabrück, and by Verband deutscher Hypothekenbanken e. V., Berlin. The meeting in Tartu (December 2005) was supported by the University of Tartu, its Faculty of Law, its Institute of Law and its Institute of Private Law, by the Estonian Supreme Court, the Ministry of Justice, the Tartu City Government, Iuridicum Foundation, the Law Offices Concordia, Lepik & Luhaäär, Luiga Mody Hääl Borenius, Ots & Co, Aivar Pilv, Aare Raig, Raidla & Partners, Sorainen, Tark & Co, Teder Glikman & Partners, Paul Varul, Alvin Rödl & Partner and Lextal Law Firm. The meeting in Oslo (June 2006) was made possible by the kongelige Justis- og Politidepartement (The Royal Ministry of Justice), by Sigvald Bergesen d. y., by hustru Nankis Almennyttige stiftelse, Storebrand and the law firms Wiersholm and BA-HR. The meeting in Lucerne (December 2006) was sponsored by Schulthess Publishing Company, by Schweizerischer Nationalfonds and by the Universität Luzern, the meeting in Budapest (June 2007) by Eötvös Loránd Tudományegyetem (Eötvös Loránd University), by Magyar Tudományos Akadémia (the Hungarian Academy of Sciences), by MOL Magyar Olaj- és Gázipari Nyrt (the Hungarian Oil & Gas Company) and by Szalma & Partnerei Ügyvédi Iroda (Szalma & Partners Attorneys at Law), and the meeting in Prague (December 2007) by Česká advokátní komōra (the Czech Bar Association), White & Case, Prague, Squire, Sanders & Dempsey, Prague, Ladislav Krym, Attorney at Law, Prague, Jan Brož, Attorney at Law, Prague, and the Representation of the European Commission in Prague. We thank all of these organisations and institutions for the funds which they made available to us and for the extraordinary warmth of hospitality with which our hosts received us. Osnabrück, January 2008 Christian von Bar XII

13 Preface to this volume 1. Every proposal for new legislation requires proof of the need for it. In the case of sale of goods the proof seems easy. All European continental legal systems provide for specific regulation of sales contracts. 1 How could the most common contract be omitted from any regulation which purports to lay down rules for the most customary relationships? Not only civil law, but also common law jurisdictions in Europe have codified the sale of goods. It therefore seems logical that on the European level, any European instrument should contain provisions covering sales contracts. There are two possible objections. First, there are already supranational and private rules on sales law which are binding or applicable in most, if not all EU Member States. There is the EU directive on consumer sale of goods and associated guarantees which is binding on all Member States. 2 Then, all but five out of twenty seven Member States 3 have adhered to the Vienna Sales Convention on commercial sales (CISG). Finally, the Principles of European Contract Law (PECL) lay down non-binding general rules for all contracts, including sale of goods. Is it therefore not superfluous to have yet another set of rules on a supranational level? There are several arguments in favour of additional rules. First, the two international instruments mentioned above do not cover all sales contracts. Excluded from the scope of application of both instruments are non-international commercial sales. 4 Not covered by either of the instruments are sales contracts between private citizens, both national and international. 5 Even when any one of these texts does apply in principle, it may leave open questions which have not been dealt with in that instrument. The Vienna Sales Convention leaves a number of aspects of commercial sales untouched. The directive on consumer sales is rudimentary, dealing only with a limited number of aspects of the consumer sale of goods. The PECL only deal with contracts in general, not with specific sales issues. Other questions concern the interpretation of the instruments. CISG has raised many questions of interpretation, which because of the absence of an internationally competent court may remain unsolved for some time to come. CISG, which finds its origins in the 1920 s, 1 Not to W. C. L. van der Grinten in his comments on Boek 7 BW, In het nu, wat worden zal/ Opstellen aangeboden aan prof. mr H. C. F. Schoordijk, Deventer: Kluwer, 1991, p. 87, 90. The late Van der Grinten was a minimalist where the subjects to be incorporated in the Netherlands 1992 New Civil Code were concerned. 2 Official Journal 1999, Directive 1999/44/EG. See R M Straub, Sale of goods law within Europe. 3 Austria, Belgium, the Czech Republic, Denmark (only Part III), Estonia, Finland (only Part III), France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxemburg, Netherlands, Poland, Slovakia, Slovenia, Spain and Sweden (only Part III). Only Cyprus, Ireland, Malta, Portugal and the United Kingdom have so far refrained from joining. 4 Art. 1 (1): This Convention applies to contracts of sale of goods between parties whose places of business are in different States (...). 5 Art. 2: This Convention does not apply to sales: (a) of goods bought for personal, family or household use (...). XIII

14 Preface to this volume may not be completely in line with present-day thinking. The EU Sales directive has been subjected to criticism as to its drafting. A second possible objection may be that the division line between sales and services has become thin. Many sales contracts include an element of service. Many contracts for services include transfer of property. Should not the functional approach which is applied to contracts for services in the Principles on European Law on Service Contracts cover sales as well? It is precisely because of the two international instruments mentioned above, the EU sales directive and the CISG, that this does not seem a good idea. These Principles have therefore been set up according to traditional lines. Moreover, the draftspersons of this Part have sought to make the draft e-commerce proof, meaning that the text of the rules is supposed to be equally valid for online and offline transactions. 2. On a different count, it may be thought that a European Restatement should not deal with commercial sales contracts. The 19th century continental codification efforts all distinguish a Civil Code and a Commercial Code. This has been the case in France and in the countries which followed the Napoleonic example, Belgium, Italy, Luxembourg, Netherlands, Portugal and Spain. It has been the case in Austria, Germany and Greece. But modern Civil Codes, such as the Dutch and Italian ones, include commercial law. Consumer protection is no longer seen as an emergency measure, which should not spoil pure civil law. 3. The Dutch team started its work on 1 November 1999, in a limited composition. It never represented all EU jurisdictions. This shortcoming is remedied by the fact that all major legal families are represented in the group. The Dutch team consisted of three groups, located in Amsterdam, Tilburg and Utrecht. The three groups met regularly. The work on the sales contract was assigned to the Utrecht group, which at various times has consisted of Georgios Arnokouros (researcher, Greece), Emilia Caprndova (temporary researcher, Slovakia), John Dickie (temporary team manager, England), Giuseppe Donatiello (temporary researcher, Switzerland), Viola Heutger (team manager, Germany), Ewoud Hondius (team leader, Netherlands), Elena Ioriatti (temporary researcher, Italy), Christoph Jeloschek (researcher, Austria), Anna Maria Mancaleoni (temporary researcher, Italy), Hanna Sivesand (researcher, Sweden), Stine Snertingdalen (temporary researcher, Norway) and Aneta Wiewiorowska (researcher, Poland). The Utrecht group has profited from the occasional participation of Hugo van Kooten, Sonja Kruisinga and Harriet Schelhaas, at the time employed as researchers by Utrecht University s Molengraaff Instituut voor Privaatrecht (Department of Private Law) or G. J. Wiarda Instituut (research Institute). It has also profited from the observations of Torill Edvardsen (Norway), Katja Modric (Croatia), Roman Pokhyla (Ukraine) and Andrea Scafidi (Italy), all candidates in the Utrecht LL M programme European Private Law, and of Willemijn Jansen, Linda Roelofs and Heilien Spruit, Dutch undergraduate students at Utrecht University. To these should be added the various members of the Amsterdam and Tilburg teams as well as our external national reporters. 4. The Utrecht group employed the following working method. The group first set out a Position paper on Sales. In the position paper, questions were raised such as whether sales should be dealt with at all (in the presence of the Vienna Sales Convention and the European Consumer Sales Directive), to what extent consumer contracts and commercial contracts should be dealt with separately, what to do with real estate, consumer credit, etc. The questions were answered in a provisional way and then submitted to the meetings of the Co-ordinating committee. Then, the group began drafting questionnaires XIV

15 Preface to this volume on these subjects. On the basis of the questionnaires, draft texts were submitted to members of its Advisory Council: Professors Johnny Herre (Stockholm), Jérôme Huet (Paris), Ewan McKendrick (Oxford) and the late Peter Schlechtriem (Freiburg). After the final approval of the draft texts by the Co-ordinating Committee, the Advisory Council, together with three members of the Drafting Group, Professors Hugh Beale (Warwick), Eric Clive (Edinburgh) and Christina Ramberg (Gothenburg) and the Utrecht team s coordinator worked out the present text. First Christoph Jeloschek and then Hanna Sivesand served as team co-ordinator for the Utrecht team. Both had meanwhile successfully defended their PhD theses on aspects of sales law, a considerable fringe benefit of the project. Our thanks also go out to Peter Morris (Utecht) for checking our English. We are also grateful to Dr Giuseppe Donatiello, Professor Beatriz Fernández Gregoraci, Dr Viola Heutger, Professor Marco Loos, Professor Mario Varvaro and Ms Aneta Wiewiorowska for their help with the translation of the black letter rules. 5. All the above-mentioned persons, as well as the members of the Amsterdam and Tilburg teams should be warmly thanked for their co-operation. A special word of thanks is owed to the members of the Advisory Council and the Drafting Group. Their impact on the work of the team has been much larger than the names of their groups suggest. We dedicate this book to the memory of the late Manola Scotton, the Italian member of the Dutch (Amsterdam) team, who despite her physical condition always instilled us with a sense of pride in our project. Eppur muove. Utrecht, August 2007 Ewoud Hondius XV

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17 Short Table of Contents Text of Articles 1 Principles of European Law on Sales General Introduction 101 Chapter 1: Scope of Application & General Provisions Section 1: Scope of Application 113 Article 1:101: Sale of goods 113 Article 1:102: Goods to be manufactured or produced 120 Article 1:103: Barter 126 Article 1:104: Definition of goods 128 Article 1:105: Application to other assets 135 Section 2: General Provisions Article 1:201: Relationship with the Principles of European Contract Law 142 Article 1:202: Definition of consumer sale 143 Article 1:203: Derogation 154 Chapter 2: Obligations of the Seller Article 2:001: Overview of obligations of the seller 159 Section 1: Delivery of the Goods Article 2:101: Delivery 166 Article 2:102: Place and time for delivery 171 Article 2:103: Cure in case of early delivery 175 Article 2:104: Carriage of the goods 178 Section 2: Conformity of the Goods Article 2:201: Conformity with the contract 181 Article 2:202: Fitness for purpose, qualities, packaging 191 Article 2:203: Statements by third persons 204 Article 2:204: Incorrect installation in a consumer sale 207 Article 2:205: Third party rights or claims in general 211 XVII

18 Short Table of Contents Article 2:206: Third party rights or claims based on industrial property or other intellectual property 214 Article 2:207: Buyer s knowledge of lack of conformity 215 Article 2:208: Relevant time for establishing conformity 219 Article 2:209: Limits on derogation in a consumer sale 224 Chapter 3: Obligations of the Buyer Article 3:001: Overview of obligations of the buyer 227 Article 3:002: Determination of form, measurement or other features 231 Section 1: Payment of the Price Article 3:101: Place and time for payment 234 Article 3:102: Formalities of payment 236 Article 3:103: Currency not expressed 236 Article 3:104: Price fixed by weight 236 Section 2: Taking Delivery of the Goods Article 3:201: Taking delivery 240 Article 3:202: Early delivery and delivery of excess quantity 243 Chapter 4: Remedies Section 1: Remedies of the Parties in General Article 4:101: Application of the Principles of European Contract Law 249 Article 4:102: Termination of the contract 256 Article 4:103: Limits on derogation in a consumer sale 259 Section 2: Remedies of the Buyer for Lack of Conformity Article 4:201: Overview of remedies 262 Article 4:202: Remedying the lack of conformity 267 Article 4:203: Seller s opportunity to remedy the lack of conformity 275 Article 4:204: Choice between repair and replacement 280 Article 4:205: Resort to other remedies 283 Article 4:206: Termination 290 Article 4:207: Limitation of liability for damages of non-professional sellers 298 Section 3: Requirements of Examination and Notification Article 4:301: Examination of the goods 301 Article 4:302: Notification of lack of conformity 305 Article 4:303: Notification of partial delivery 320 Article 4:304: Seller s knowledge of lack of conformity 322 Article 4:305: Remedy to be claimed within a reasonable time 325 XVIII

19 Short Table of Contents Chapter 5: Passing of Risk Section 1: General Provisions Article 5:101: Effect of passing of risk 329 Article 5:102: Time when risk passes 334 Article 5:103: Passing of risk in a consumer sale 339 Section 2: Special rules Article 5:201: Goods placed at buyer s disposal 342 Article 5:202: Carriage of the goods 345 Article 5:203: Goods sold in transit 349 Chapter 6: Consumer goods guarantees Article 6:101: Definition of a consumer goods guarantee Article 6:102: Binding nature of the guarantee 363 Article 6:103: Guarantee document 367 Article 6:104: Coverage of the guarantee 375 Article 6:105: Guarantees confined to specific parts 380 Article 6:106: Maintenance instructions 382 Article 6:107: Burden of proof 384 Article 6:108: Prolongation of the guarantee period 387 Annexes 389 XIX

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21 Table of Contents Foreword Our Sponsors Preface to this volume VII XI XIII Text of Articles English Sales 3 Dutch Koop 16 French Vente 30 German Kauf 44 Italian Vendita 58 Polish Sprzedaży 71 Spanish Compraventa 85 XXI

22 Table of Contents Principles of European Law on Sales General Introduction A. General 101 B. Importance 101 C. Relation to general contract law (PECL) 101 D. Relation to other international sources 103 E. Relation to other specific contracts 104 F. Other related aspects not dealt with 105 G. Mainly default rules: Some mandatory consumer protection 106 H. Member States investigated 106 I. The structure of these Principles 106 Chapter 1: Scope of Application & General Provisions Section 1: Scope of Application Article 1:101: Sale of goods A. Scope of the Principles 113 B. Definition of sale 113 C. Parties to the sales contract 114 D. Obligation to transfer ownership 114 E. Obligation to pay the price 115 F. Relationship with the Principles of European Contract Law (PECL) Overview of the rules relating to sales law Definition of sale Analogous application to other contracts Mixed contracts 118 Article 1:102: Goods to be manufactured or produced A. General 120 B. The substantial part test 121 C. Relevant rules from services contracts by way of analogy 121 D. Consumer transactions 122 XXII

23 Table of Contents General regulation of contracts for the supply of goods to be manufactured or produced Consumer sales 125 Article 1:103: Barter A. General 126 B. Application with appropriate adaptations 126 C. Mixed contracts Barter [exchange] contracts Trade-in of used goods 128 Article 1:104: Definition of goods A. Object of sale in general 128 B. Corporeal movables 129 C. Future goods 130 D. Goods extra commercium Object of sale in general Sale of immovable property Ships, vessels, aircraft and hovercraft Specific rules for the sale of animals Specific rules for the sale of human body parts The sale of future goods 134 Article 1:105: Application to other assets A. Application to other assets 136 B. Other assets 136 C. Immovable property Electricity Software Rights and receivables [and industrial or other intellectual property rights] 140 XXIII

24 Table of Contents Section 2: General Provisions Article 1:201: Relationship with the Principles of European Contract Law A. General 142 B. Deviations from the Principles of European Contract Law 142 C. Implementation in these Principles Relationship between sales rules and other parts of the Civil Code or the general law of obligations 143 Article 1:202: Definition of consumer sale A. Consumer sales 144 B. The notion of unitary sales law 144 C. Notion of consumer and professional 145 D. Protection of small businesses etc. 147 E. Consumer protection 148 F. Protection of parties other than consumer buyers Overview of the rules on consumer sale Difference in substance to the general sales regime Definition of consumer Definition of professional 153 Article 1:203: Derogation A. General 154 B. Derogation in a consumer sale 155 C. Direct and indirect derogation 156 D. Violation of mandatory provisions 156 E. Relationship with the Principles of European Contract Law (PECL) Mandatory rules in consumer sales law Status of the rules of general sales law 157 XXIV

25 Table of Contents Chapter 2: Obligations of the seller Article 2:001: Overview of obligations of the seller A. Main obligations of the seller 159 B. Obligation to transfer ownership 159 C. Obligation to deliver the goods 160 D. Obligation to transfer documents 161 E. Obligation to ensure conformity with the contract 161 F. Remedies for the buyer 161 G. Relationship with the Principles of European Contract Law (PECL) Obligation to transfer ownership Obligation to deliver the goods Obligation to transfer documents Further obligations of the seller 165 Section 1: Delivery of the Goods Article 2:101: Delivery A. General 166 B. Functional definition of delivery 166 C. Different modes of delivery 167 D. Carriage of goods 168 E. Delivery to persons other than the buyer 169 F. Consumer sale 169 G. Relationship with the Principles of European Contract Law (PECL) Modalities of delivery in general Constructive delivery 170 Article 2:102: Place and time for delivery A. General 171 B. Place and time for delivery 171 C. Transfer of documents representing the goods 171 D. Remedies of the buyer in the event of late delivery 172 E. Relationship with the Principles of European Contract Law (PECL) 172 XXV

26 Table of Contents 1. Place for delivery Time of delivery Cost of delivery Deviating consumer regulation 174 Article 2:103: Cure in case of early delivery A. General 175 B. The seller s right to cure before the time for delivery 175 C. Unreasonable inconvenience or expense 176 D. Buyer s remedies 176 E. Relationship with the Principles of European Contract Law (PECL) Cure in the case of early delivery 177 Article 2:104: Carriage of the goods A. General 178 B. Seller s obligations in the case of carriage 178 C. Remedies of the buyer 179 D. Consumer sale Obligations relating to the carriage of goods 179 Section 2: Conformity of the Goods Article 2:201: Conformity with the contract A. General 181 B. Agreed conformity: the obligation to ensure that the goods are in conformity with the contract 181 C. Quantity, quality and description 182 D. Conformity not limited to goods as such 183 E. The aliud 183 F. Remedies of the buyer 183 G. Relationship with the Principles of European Contract Law (PECL) 184 XXVI

27 Table of Contents 1. The principle of conformity with the contract (Overview) Relationship to other instances of non-performance, in particular delay The notion of aliud Restricted liability for lack of conformity in sales as is 190 Article 2:202: Fitness for purpose, qualities, packaging A. General: the notion of implied conformity 191 B. Implied requirements of conformity 193 C. Remedies of the buyer (Implied) criteria for establishing lack of conformity Fitness for normal purpose Fitness for particular purpose Sample/model Packaging Accessories and instructions Reasonable expectations of the buyer (in particular with respect to the general quality standard) Further aspects 203 Article 2:203: Statements by third persons A. General 205 B. Statements made by third persons 205 C. Restriction of liability for statements by third persons 206 D. Relationship with the Principles of European Contract Law (PECL) Liability for (public) statements by third persons 207 Article 2:204: Incorrect installation in a consumer sale A. General 208 B. Incorrect installation by the seller or under his responsibility 208 C. Incorrect installation by the consumer 209 D. Remedies of the buyer 209 XXVII

28 Table of Contents 1. Incorrect installation 210 Article 2:205: Third party rights or claims in general A. Relation to the notion of conformity 211 B. Third party rights or claims in general Third party rights Differences with the conformity regime in general 213 Article 2:206: Third party rights or claims based on industrial property or other intellectual property A. Third party rights or claims based on industrial property or other intellectual property 214 B. Restriction of seller s liability Industrial or other intellectual property 215 Article 2:207: Buyer s knowledge of lack of conformity A. General 215 B. Knowledge on the part of the buyer 216 C. Exceptions 216 D. Consumer sale Knowledge of the buyer at the time of the conclusion of the contract Pre-contractual duty to examine 218 Article 2:208: Relevant point in time for establishing conformity A. General 219 B. Existence of the lack of conformity 220 C. Reversal of burden of proof in a consumer sale 220 XXVIII

29 Table of Contents 1. Point in time of the existence of lack of conformity Burden of proof (consumer other sales) 222 Article 2:209: Limits on derogation in a consumer sale A. General 224 B. Derogation from the conformity rules in a consumer sale Exclusion or limitation of the seller s liability 225 Chapter 3: Obligations of the buyer Article 3:001: Overview of obligations of the buyer A. Main obligations of the buyer 227 B. Obligation to pay the price 228 C. Obligation to take delivery of the goods 228 D. Obligation to take delivery of the documents 229 E. Remedies of the seller 229 F. Relationship with the Principles of European Contract Law (PECL) Determination of price Obligation to take delivery 231 Article 3:002: Determination of form, measurement or other features A. General 231 B. The seller s right to make specifications 232 C. Consumer sale 232 D. Relationship with the Principles of European Contract Law (PECL) The seller s right to make specifications 233 XXIX

30 Table of Contents Section 1: Payment of the Price Article 3:101: Place and time for payment A. General 234 B. Place and time for payment 234 C. Relationship with the Principles of European Contract Law (PECL) Time of payment Place of payment 235 Article 3:102: Formalities of payment Article 3:103: Currency not expressed Article 3:104: Price fixed by weight A. General 237 B. Formalities of payment 237 C. Currency of payment 237 D. Net-weight price 237 E. Relationship with the Principles of European Contract Law (PECL) Formalities of payment Currency Determination Net weight price 239 Section 2: Taking Delivery of the Goods Article 3:201: Taking delivery A. General 240 B. Enabling the seller to deliver 240 C. Taking over the goods or the documents 241 D. Failure to take over the goods or documents 241 E. Relationship with the Principles of European Contract Law (PECL) Enforceability of the obligation to take delivery Termination due to refusal to take delivery 243 XXX

31 Table of Contents Article 3:202: Early delivery and delivery of excess quantity A. Scope 244 B. Early delivery 244 C. Excess Quantity 244 D. Relationship with the Principles of European Contract Law (PECL) Early delivery Right to refuse excess quantity Determination of the price for the excess quantity 247 Chapter 4: Remedies Section 1: Remedies of the Parties in General Article 4:101: Application of the Principles of European Contract Law A. General 249 B. Changes to the regime of remedies provided by the Principles of European Contract Law 249 C. Buyer s remedies in the event of seller s failure to perform his obligations 250 D. Seller s remedies in the event of buyer s failure to perform his obligations 252 E. Consumer sale 253 F. Relationship with the Principles of European Contract Law (PECL) General vs. sales-specific remedies of the buyer Overview of remedies for the seller 254 Article 4:102: Termination of the contract A. General 256 B. Termination for delay 256 C. Termination for lack of conformity 257 D. Relationship with the Principles of European Contract Law (PECL) Limitations to the right to terminate under general contract law Termination for delayed performance or no performance at all 259 XXXI

32 Table of Contents Article 4:103: Limits on derogation in a consumer sale A. General 260 B. Derogation from the rules on remedies in a consumer sale Exclusion or limitation of the seller s liability 260 Section 2: Remedies of the Buyer for Lack of Conformity Article 4:201: Overview of remedies A. Scope of this section 262 B. Overview of remedies for lack of conformity 262 C. Consumer sale 264 D. Relationship with the Principles of European Contract Law (PECL) Specific remedies for lack of conformity of the goods Withholding performance Price reduction Damages 267 Article 4:202: Remedying the lack of conformity A. General 268 B. Repair, replacement and other similar means to remedy lack of conformity 268 C. Conditions of exercise 268 D. Free of charge 269 E. Buyer could have lack of conformity remedied from another source 270 F. Cumulation with other remedies 270 G. Consumer sale 270 H. Relationship with the Principles of European Contract Law (PECL) Right for the buyer to have the lack of conformity remedied in general Special consumer regulation Limitations Costs of remedies 274 XXXII

33 Table of Contents Article 4:203: Seller s opportunity to remedy the lack of conformity A. General 275 B. Conditions of seller s offer to remedy the lack of conformity 275 C. Buyer s refusal to grant the seller an opportunity to remedy the lack of conformity 276 D. Relationship with the Principles of European Contract Law (PECL) Existence of the seller s right to cure a lack of conformity Prerequisites for cure (limitations) Time limitations Number of attempts available 279 Article 4:204: Choice between repair and replacement A. General 280 B. Seller s choice and restrictions 280 C. Buyer s choice in a consumer sale Which party may choose the method of bringing the goods into conformity (repair or replacement)? Limits to the choice 283 Article 4:205: Resort to other remedies A. General 283 B. Hierarchy of remedies 284 C. Requirements for remedying the lack of conformity 285 D. Resort to other remedies 286 E. Damages for loss not remedies by the seller s cure 287 F. Consumer sale 287 G. Relationship with the Principles of European Contract Law (PECL) Existance of secondary remedies Preconditions for obtaining the secondary remedies Relationship between damages and other remedies 290 XXXIII

34 Table of Contents Article 4:206: Termination A. General 291 B. General standard of termination 291 C. Termination under a consumer sale 292 D. Partial non-conformity 293 E. Partial termination 293 F. Termination of the entire contract 293 G. Relationship with the Principles of European Contract Law (PECL) Conditions for terminating the contract due to a lack of conformity Regulation of partial conformity [including partial delivery] The right to terminate for partial conformity [including partial delivery] Damage or destruction of the goods 297 Article 4:207: Limitation of liability for damages of non-professional sellers A. General 298 B. Non-professional seller 299 C. Damages limited to the amount of the contract price 299 D. Exception 299 E. Relationship with the Principles of European Contract Law (PECL) Protection of the non-professional seller against excessive remedies 300 Section 3: Requirements of Examination and Notification Article 4:301: Examination of the goods A. General 301 B. Modalities of the obligation to examine the goods 301 C. Failure to examine the goods 302 D. Consumer sale 303 E. Relationship with the Principles of European Contract Law (PECL) Duty to examine upon handing over the goods Speed of examination Examination where carriage of goods or sale in transit is involved 305 XXXIV

35 Table of Contents Article 4:302: Notification of lack of conformity A. General 306 B. Modalities of the duty to notify lack of conformity 306 C. Failure to notify a lack of conformity and the consequences thereof 307 D. Absolute time period of two years 308 E. Lack of conformity becoming apparent after the two-year period 309 F. Consumer sale 309 G. Relationship with the Principles of European Contract Law (PECL) General duty to notify lack of conformity Notification under commercial sale Notification under consumer sale Notification of legal defects Modalities of notification Legal consequences of a failure to notify Fixed time-limits for lack of conformity running from delivery Default or mandatory rules Related issues: periods of prescription for claims based on lack of conformity 318 Article 4:303: Notification of partial delivery A. General 320 B. No notification required 320 C. Consumer sale 321 D. Relationship with the Principles of European Contract Law (PECL) Notification of partial delivery in relation to notification of lack of conformity 321 Article 4:304: Seller s knowledge of lack of conformity A. General 322 B. Knowledge of the lack of conformity 323 C. Impact on the buyer s remedies 323 D. Relationship with the Principles of European Contract Law (PECL) Relevance of seller s knowledge of lack of conformity for the examination and notification requirements 323 XXXV