CYIL 2012

PARALLEL NATIONAL AND INTERNATIONAL LAWS ȃ CZECH LAW AND THE PROPOSED… of modern transactions and the reality of being a part of the EU. Germany and The Netherlands have both revised longstanding Civil Codes in recent years. France and Japan have started to embark on drafting a new code or at least recognize the need for one. The CISG and CESL can be used as possible aids in the revising of the general contract provisions found in the Civil Code and for amending specialized rules in the Commercial Code in the areas of sale of goods, supply of digital content and related services. It would also be prudent to use CESL as a source in the revision of other areas of Czech commercial law. For example, because of CESL’s general contract law provisions it has already been considered as the possible basis for new EU laws in other specialized contract law areas, most notably insurance contracts. This may provide the means to revise Czech insurance contract law. Commentators have noted that: In view of upcoming re-codification, a very tough struggle has taken place with regard to an insurance contract which is also treated by a special law.The idea that private insurance is common and frequent in a daily life insomuch that it should be an integral part of a new Civil Code has prevailed. However, even an international comparative analysis regarding an insurance contractregulation has failed to provide clear evidence on the European trend in this domain. 22 In the assimilation of CESL consumer protection rules into Czech consumer law it should be again noted that much of consumer law has been updated through the influence of EU Directives. 2.2.1 Czech Commercial Code and American UCC The Czech Commercial Code works much like the American UCC. If the Commercial Code fails to provide an answer to a dispute, then recourse is to the Civil Code. 23 In the U.S. if an answer is not provided by the UCC, then recourse is to the common law of contracts and the more amorphous area of equity law. 24 These are examples where specialized bodies of rules take precedence over the general rules of law that they are intended to supplant. Thus, if there are conflicting rules between the Czech Civil Code and its Commercial Code or between the common law of contracts and the UCC, it is the Commercial Code and the UCC that would prevail. Interestingly, the Czech system provides that only when the civil law fails to provide an answer is there recourse to trade usage and commercial practice and then to underlying principles. 25 In the UCC, trade usage and commercial practice, as well as the use of general principles, play a key role in the UCC’s interpretive 22 Elischer, Frinta & Pauknerová, Private Law at 86. 23 Contract law will be fully incorporated in the Civil Code effective 1st January 2014. 24 In fact, § 2-103(b) expressly recognizes that the UCC is not a comprehensive law and, therefore, further recognizes the default law in cases of gaps in the UCC: “Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant… supplement its provisions.” 25 Elischer, Frinta & Pauknerová, Private Law at 88.

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