CYIL 2012

PARALLEL NATIONAL AND INTERNATIONAL LAWS ȃ CZECH LAW AND THE PROPOSED… CESL does make up for much of the above mischievousness by carving out a different rule for conflicting standard terms. Article 39 CESL adopts the “knock out rule”. Thus, Article 39 seems to settle the problem discussed above since most of the conflicting terms in B2B transactions are found in an area designated as standard terms or general conditions often found often in fine print on the back of the form. It still fails to a correct the materiality problem of Article 38 since it only deals with standard terms. If a term is considered material under CESL Article 38(2) such as conflicting terms relating to the time of delivery, the place of delivery or the time of payment it should not matter whether the term is found in the area of the contract containing the standard terms because under Article 38(2) they are considered to be material and, therefore, the contract is void ab initio . The second problem with Article 39 is that it fails to deal with the issue of additional terms since it only discusses conflicting terms. Finally, the phrase “refer to” in the provision that “where the parties have reached agreement except that the offer and acceptance refer to conflicting standard terms” is somewhat odd, at least from a common law perspective. The phrase “refer to” seems to indicate that the standard terms are outside of the contract or agreement despite the fact that they are often a part of the forms used to make offers and acceptances. Under American contract law, standard terms are as much a part of the contract as the negotiated terms. This is especially true if they are incorporated by reference. This is almost always the case for standard forms a term on the front page states that the terms (standard terms) on the back of the form or in a separate document become incorporated into the contract. On the whole, Article 39 is an improvement over the CISG because of its adoption of the knock-out rule. The problem remains that the broad definition of materiality in CESL makes the use of Article 39 moot in many instances. 3.7 CESL and Consumer Protection CESL’s B2C rules are mostly made up of mandatory provisions that favor the consumer. In such transactions, the business or trader must choose CESL “in its entirety” with no derogations or modifications. 76 The following section explores the tension in consumer contracts between CESL’s consumer protection rationales and the freedom of contract rationale found in CESL Article 1. 77 3.7.1 Consumer right to terminate The consumer has a prolonged period of time to demand a repair or replacement of defective goods or to terminate the contract. The consumer may demand that the seller repair or replace defective goods within a reasonable time not exceeding 30 days. 78 Consumers are provided great leeway in declaring the goods to be defective because they are not bound by the strict duties of inspection and notice of non conformity placed upon a merchant buyer under Articles 121 (inspection not 76 CESL, Article 8(3) of the Explanatory Memorandum. 77 See Article 1 (freedom of contract). 78 CESL, Article 111(2).

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