CYIL 2012

LARRY A. DĎMATTEO CYIL 3 ȍ2012Ȏ transactions. CESL’s general principles, 55 definitions, 56 and contract formation rules 57 are bodies of general rules that relate to all contracts under CESL. Professor Reiner Schulze and Jules Stuyck explain that the first part of CESL “contains general rules for a number of matters; whereas, on the other hand the subsequent parts are limited to specific provisions” relating to sale of goods and sales related services.” 58 T hey further question the fragmentation of the obligation and remedies provisions and ask whether these provisions “could be placed in a chapter that covers, in general, all forms of contract.” 59 Even so, the majority of CESL is a mixture of specialized and general rules relating to the types of contracts and subject matters listed above. A brief listing of the coverage areas in the order they appear in CESL gives a good indication of the structure, or lack thereof, of CESL. Appendix I lists the Articles and shows which provisions apply to consumers only, B2B transactions only, and to all transactions. It also shows whether the provisions deal with certain subject matter coverage sale of goods, supply of digital content, or supply of related services and which ones apply to two or all of the subject areas. Finally, the Appendix notes the areas of law that given articles apply to, such as contract formation, pre-contractual informational duties, contract interpretation, damages, restitution, and so forth. 3.4 Rule Clarity and Inflexibility An advantage of CESL is that in some areas it provides fixed and clear rules, and thus reduces interpretive uncertainty. On the other hand, the CISG is constructed mostly with open-textured rules, with the use standards, such as reasonableness. Superficially, the fixed or bright line rule would seem to be the best type of rule for business transactions both parties would know exactly what the rule required and would be able to contract and perform more confidently. An example can be found in the area of the commercial buyer’s duty to inspect delivered goods. CISG Articles 38 (inspection) and 39 (notice of non-conformity) are two of the most litigated provisions in the CISG. Article 38 requires the buyer to inspect the goods “within as short a period of time as is practicable.” 60 Article 39 requires the buyer, after discovering the non-conformity during a reasonable inspection, to give notice to the seller of the non conformity within a “reasonable time” and the notice must “specify” the nature of the non-conformity. 61 It further provides that in any event the buyer must provide notice “within a period of two years from the date on which the goods were actually handed over to the buyer.” 62 55 CESL, Articles 1-3. 56 CESL, Articles 4-12. 57 CESL, Articles 30-39. 58 Reiner Schulze & Jules Stuyck eds., Towards a European Contract Law (Munich: Sellier European Publishers 2011), 7. 59 Ibid.

60 CISG, Article 38(1). 61 CISG, Article 29(1). 62 CISG, Article 39(2).

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