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European Private Law at the Crossroads: some thoughts on the proposed new European Sales Law

29 March 2012, 18:00 - 19:00

Dr Maren Heidemann,  IALS Visiting Fellow
Organised by:
Institute of Advanced Legal Studies
Event Type:
Venue Details:
Institute of Advanced Legal Studies
Charles Clore House
17 Russell Square


This talk will debate the legal basis, aims and objectives of the proposed Regulation on a Common European Sales Law COM(2011) 635 final. The new project is not without precursors and does not arrive in a legal vacuum. Its novelty is that it may be regarded as the first piece of substantive private law issued by the EU legislator who seems to have turned a new corner with this proposal.

  • What can traders and consumers expect from CESL?
  • Can it achieve what it sets out to do?
  • Does it consider the existing legal framework enough to succeed?
  • Is the criticism regarding a breach of the subsidiarity principle justified?
  • Some thoughts on some individual rules of the Regulation and of CESL.

Even after adoption of the proposed Regulation introducing CESL the law merchant and modern European consumer law will continue to co-exist in parallel within the EU and its different national contract law regimes in a largely undefined relationship. The effort of the expert group to integrate certain business contracts into the draft regulation for a Common European Sales Law has not reduced the tension between this new regime and traditional law merchant both in a formal and substantive sense. This is owed to three factors: the unresolved clash of old national and new European concepts within domestic laws, the lack of express reference of the CESL to existing transnational rules of international commercial contracts and the weakly identified reasons for there being separate regimes in the first place. Existing international commercial contract law therefore now moves into an awkward relationship with the proposed new instrument. Both the consumer contract and the commercial contract have specific characteristics and requirements which need legislative attention within the EU and beyond but which have not been carved out sufficiently by legal doctrine yet. Further research is therefore needed into the contents of typical consumer and merchant contracts and into the raison d’etre of merchant law both formal and substantive. A consolidated and possibly separate and mandatory consumer and merchant law for the Common Market could then be tailored in a more integrated and convincing way. Legal doctrine would then also be able to evolve further to support international commercial contracts beyond the EU legal framework.


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