CYIL 2012

LARRY A. DĎMATTEO CYIL 3 ȍ2012Ȏ exceeding 14 days) and 122 (notice within a reasonable time). The consumer may elect to terminate the contract without first demanding “repair or replace” for any non-conformity unless the non-conformity is insignificant. 79 This rule is not subject to any right of the seller to cure the non-conformity. This right to terminate extends for a period of two years from the time the consumer should have become aware of the defect. 80 3.7.2 Bindingness of Contracts In consumer transactions, CESL makes it more difficult to form and to enforce B2C contracts, as opposed to the CISG in B2B contracts and many national laws in B2C and B2B contracts. Traders may be reluctant to opt into CESL since it creates a good deal of uncertainty relating to the enforceability of their contracts with consumers. Under Articles 40 and 42, in distance or off-premises contracts, the consumer has an absolute right to withdraw (cancel) from the contract for a period of fourteen days after taking delivery of the goods 81 “without giving any reason, and at no cost to the consumer.” 82 Furthermore, the right of withdrawal is extended under CESL Article 42(2) to a period of up to one year after the expiration of the fourteen day period if the seller failed to provide the information required under Article 17(1), which requires the seller to provide pre-contractual information that notifies the consumer of its right of withdrawal. Professor Fryderyk Zoll has analyzed the different rights of consumers under CESL and discussed the non-binding consumer contract. 83 He reviews CESL provisions that give the consumer an almost absolute power over the enforceability of the B2C contract: • The consumer is provided a litany of options for defective performance or non-performance including the rights to require performance (including repair or replacement), the right to withhold its performance, declare a price reduction, terminate the contract and claim damages. • The consumer, in the case of non-conformity, must only show that the lack of conformity is not insignificant in order to terminate the contract. The seller in B2C contracts loses its right to cure except for the case of related services. • The above right to terminate even exists in the case of custom-made goods. However, the consumer is required to show that the defect slightly exceeded the measure of being insignificant. 84 79 CESL, Article 114(2). 80 CESL, Article 179(1). Longer prescription periods to sue for damages or personal injuries run ten and thirty years respectively. See Article 179(2). 81 CESL, Article 42(1). 82 CESL, Article 40(1). It should be noted that there are a list of exceptions to the right of withdrawal found in Article 40(2). 83 Fryderyk Zoll, “The binding power of the contract – protection of performance in the system of the Common European Sales Law”, 12 Journal of International Trade Law and Policy (2012) (in press). 84 See Zoll citing HANS SCHULTE-NÖLKE/FRYDERYK ZOLL, HANS SCHULTE-NÖLKE/ FRYDERYK ZOLL, Remedies for buyers in B2C contracts: General aspects, Briefing Note (PE 462.460), Directorate General for the Internal Policies, Brussels, European Parliament 2012,

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