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Art. 69: Pre-contractual Statements Under Article 69 CESL – Remake or Revolution?

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Book cover Contents and Effects of Contracts-Lessons to Learn From The Common European Sales Law

Part of the book series: Studies in European Economic Law and Regulation ((SEELR,volume 7))

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Abstract

Pre-contractual statements regarding the characteristics of the goods for sale can strongly influence the buyer’s initial purchase decision. AArticle 69 of the draft proposal for a Common European Sales Law (CESL) tried to solve this problem by holding the seller liable not only for his own statements but, in certain circumstances, also for those ones made by the producer and other persons in the chain of transactions. In comparison to current European consumer law the provision would have broadened the seller’s contractual obligations. Apart from several consistency issues which were not resolved until the Commission finally withdrew its draft in its Work Programme for 2015, the CESL especially failed to provide for an adequate right of redress of the final seller. Thereby it would have burdened sellers with a comprehensive duty to monitor advertising campaigns on a European scale and, in consequence, with a vast liability for incorrect statements made by third parties. As a result, this concept hardly would have encouraged professional traders to regularly choose the optional instrument as a legal basis for their business engagements Therefore, the Commission’s current Digital Single Market Strategy should not revive the rules laid down in Article 69 as a whole. Instead, it should rather limit liability to pre-contractual statements made by the seller himself, his representatives, and the producer – given that the seller can be expected to know about the latter ones – while providing for an adequate right of redress up the whole chain of transactions at the same time.

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Notes

  1. 1.

    Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L 171, 12.

  2. 2.

    Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law of 10 October 2011, COM (2011) 635 final.

  3. 3.

    In practice, of course, there are cases in which the parties simply have overlooked to negotiate certain details of the agreement. In order to fill this gap, article 68 CESL allowed for additional terms to be implied by way of exception where this was necessary to complete the contractual agreement.

  4. 4.

    If not stated otherwise, all articles quoted in the following refer to Annex 1 of the Proposal for a Regulation on a Common European Sales Law in the version presented by the Commission on 11 October 2011, with additional reference to the European Parliament’s Legislative Resolution of 26 February 2014, P7_TA(2014)0159, where it substantially changed the Commission’s draft.

  5. 5.

    O Lando and H Beale (eds), Principles of European Contract Law, Parts I and II, Combined and Revised (The Hague/London/Boston, Kluwer Law International, 2000).

  6. 6.

    C von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference, Full Edition (OUP, 2009).

  7. 7.

    The draft CESL was preceded by a Feasibility Study on a future Initiative on European Contract Law, published by the European Commission on 3 May 2011 (IP/11/523), available online at http://ec.europa.eu/justice/contract/files/feasibility_study_final.pdf.

  8. 8.

    Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions of 6 May 2015: A Digital Single Market Strategy for Europe, COM(2015) 192 final, 5.

  9. 9.

    Bürgerliches Gesetzbuch (BGB).

  10. 10.

    Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on Consumer Rights, OJ L 304, 64.

  11. 11.

    United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.

  12. 12.

    Cf. F Infante Ruiz, ‘The Integration of Advertising Statements into the Content of the Contract’ in J Plaza Penadés and LM Martinez Velencoso (eds) European Perspectives on the Common European Sales Law (Springer, 2015) 67, 78 et seq.

  13. 13.

    Some even doubt that setting up rules which expressly include unilateral statements into the contract is unnecessary because the same results could also be reached by means of interpretation; cf. P Hellwege, ‘Allgemeines Vertragsrecht und “Rechtsgeschäfts”-lehre im Draft Common Frame of Reference (DCFR)’ (2011) 211 Archiv für die civilistische Praxis (AcP) 665, 680.

  14. 14.

    In the European Commission’s original draft the CESL covered cross-border sales contracts in general including off-premises contracts. The European Parliament narrowed this scope of application down to distance contracts by amending articles 4 and 5 in its Legislative Resolution (n 4) amendments 60–61. In its Digital Single Market Strategy (n 8) the Commission again narrowed this scope down and announced to draft provisions only for online sales of digital products and tangible goods.

  15. 15.

    Cf. article 100 (c).

  16. 16.

    Cf. article 100 (a).

  17. 17.

    U Magnus, in H Honsell (ed) Kommentar zum UN-Kaufrecht (CISG) 2nd ed (2010) article 35 note 19.

  18. 18.

    This has been criticised by F Faust, in O Remien, S Herrler, and P Limmer (eds) Gemeinsames Europäisches Kaufrecht für die EU? (2012) 161, 163, on the grounds that if the goods which have been delivered are not presumed as being in conformity with the contract in the cases set out by article 2 CSD they still do not automatically fail to conform.

  19. 19.

    This wording is quite similar to article 100 (b) and (g).

  20. 20.

    See U Magnus, ‘CISG and CESL’ in MJ Bonell, ML Holle, and PA Nielsen (eds) Liber Amicorum Ole Lando (2012) 225, 246.

  21. 21.

    DG Baird, ‘Precontractual Disclosure Duties under the Common European Sales Law’ (2013) 50 Common Market Law Review 297, 303.

  22. 22.

    S Grundmann, ‘The Future of Contract Law’ (2011) 7 European Review of Contract Law 490, 520.

  23. 23.

    Article 22 prohibits any contractual exclusion or derogation from these duties to the detriment of the consumer.

  24. 24.

    Articles II.-3:102 para 2 (b) DCFR and 5 para 1 (a) CRD contain similar provisions.

  25. 25.

    According to the Commission’s original draft proposal at least one of the parties in a B2B contract had to be a small or medium-sized enterprise (‘SME’) by definition of article 7 CESL Regulation. The European Parliament erased this restriction to the effect that all professional sellers would have been able to choose the CESL regardless of their size; cf. Legislative Resolution (n 4) amendment 70.

  26. 26.

    The questionnaire is available online at http://ec.europa.eu/justice/contract/files/public_consultation_digital_content_questionnaire_with_annex_en.docx.

  27. 27.

    See S Wichmann, in M Schmidt-Kessel (ed) Der Entwurf für ein Gemeinsames Europäisches Kaufrecht, Kommentar (2014) articles 13–17 note 20; F Zoll, ‘Das Konzept des Verbraucherschutzes in der Machbarkeitsstudie für das Optionale Instrument’ (2012) Journal of European Consumer and Market Law (euvr) 9, 17, with respect to article 67 of the Feasibility Study (n 7).

  28. 28.

    Cf. C Wendehorst, ‘Regelungen über den Vertragsinhalt (Teil III CESL-Entwurf)’ in C Wendehorst and B Zöchling-Jud (eds) Am Vorabend eines Gemeinsamen Europäischen Kaufrechts (2012) 87, 95, who rightly criticised such a stipulation as being erroneous.

  29. 29.

    This exception was inserted the European Parliament’s Legislative Resolution (n 4) amendment 140.

  30. 30.

    If the statement in public would have been made in public in a way that it was to be regarded as part of a legally binding offer regardless of article 32 para 3 it also could have been revoked by the same means as were initially used to make it; cf. article 32 para 2.

  31. 31.

    In contrast to article II.-4:201 para 3 DCFR the CESL even regarded a proposal made to the public not as an offer unless the circumstances indicated otherwise (article 31 para 3), eg if a time limit for answers was set or if goods were offered ‘as long as stock lasts’; cf. E Terryn, in R Schulze (ed) Common European Sales Law, Commentary (2012) article 31 note 7.

  32. 32.

    In the ELI’s opinion, it should have been clarified that any individual statement related to the characteristics which provides information under Chapter 2 should become a term of the contract by virtue of a proposed new article 64 (a) regardless of the restrictive conditions set out by article 69 para 1 (a) and (b) while the latter should only cover public statements; European Law Institute, ‘Statement on the Proposal for a Regulation on a European Sales Law 212’ (2012) ELI draft article 64 (b); available online at http://www.europeanlawinstitute.eu/projects/publications.

  33. 33.

    S Benninghoff, ‘Die Rolle der vorvertraglichen Informationspflichten im Entwurf für ein Gemeinsames Europäisches Kaufrecht’ in M Schmidt-Kessel (ed) Ein einheitliches europäisches Kaufrecht? (2012) 87, 103.

  34. 34.

    D Looschelders and M Makowsky, ‘Kapitel 7: Inhalt und Wirkungen von Verträgen’ in M. Schmidt-Kessel (ed) Ein einheitliches europäisches Kaufrecht? (2012) 227, 237.

  35. 35.

    Benninghoff (n 33) 109.

  36. 36.

    Cf. Benninghoff (n 33) 117.

  37. 37.

    Regulation 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199, 40.

  38. 38.

    Legislative Resolution (n 4) amendment 74.

  39. 39.

    Looschelders and Makowsky (n 34) article 69 note 1.

  40. 40.

    Wichmann (n 27) article 29 note 34.

  41. 41.

    Looschelders and Makowsky (n 34) article 69 note 3.

  42. 42.

    A Matusche-Beckmann, in Staudinger (ed) Bürgerliches Gesetzbuch, Kommentar, new edition (2014) § 434 note 96.

  43. 43.

    In so far as a statement is regarded as part of the agreement by means of interpretation the rules laid down in article 69 para 1 were indeed superfluous because the statement would already have formed a term of the contract under article 66 (a); cf. Hellwege (n 132) 680 with respect to article II.-9:102 DCFR.

  44. 44.

    PC Müller-Graff, in M Schmidt-Kessel (ed) Der Entwurf für ein Gemeinsames Europäisches Kaufrecht, Kommentar (2014) article 12 note 6; H Schulte-Nölke, in R Schulze (ed) Common European Sales Law (CESL), Commentary (2012) article 12 note 8.

  45. 45.

    Müller-Graff (n 44) article 12 note 4.

  46. 46.

    Schulte-Nölke (n 44) article 10 note 3.

  47. 47.

    Matusche-Beckmann (n 42) § 434 note 96.

  48. 48.

    Looschelders and Makowsky (n 34) 235.

  49. 49.

    As the comments to article II.-9:102 DCFR show, this rule was designed to provide a ‘focussed way of achieving reasonable results in a common type of situation’, admitting at the same time that these results could often also be achieved by relying on the rules of unilateral promises and other juridical acts; von Bar and Clive (n 6) article II.-9:102 comment A., 583.

  50. 50.

    Cf. Infante Ruiz (n 12) 71, 83 et seq.

  51. 51.

    Article 8 para 6 CRD contains a similar provision.

  52. 52.

    The Internet is not regarded as a durable medium in the sense of articles 19 para 5, 24 para 4; cf. G Howells and J Watson, in R Schulze (ed) Common European Sales Law Commentary (2012) article 13 note 18.

  53. 53.

    Article 2 para 2 (d) CSD particularly regards labelling as a means of making a relevant public statement about the specific characteristics of the goods.

  54. 54.

    C Schuller and A Zenefels, ‘Obligations of Sellers and Buyers’ in G Dannemann and S Vogenauer The Common European Sales Law in Context (2013) 581, 601.

  55. 55.

    In contrast to this, articles II.-9:102 para 1 DCFR and 6:101 para 1 PECL set out that a relevant statement can be made by either party of the contract.

  56. 56.

    Cf. Amtsgericht (Regional Court) Freising, 20/02/08, (2008) Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 1202 with regard to § 434 para 1 sent 3 BGB.

  57. 57.

    Cf. Oberlandesgericht (Regional Higher Court) Celle, 20/10/05, (2005) Deutsches Autorecht (DAR) 269 with regard to § 434 para 1 sent 3 BGB.

  58. 58.

    The article was inserted by the European Parliament’s Legislative Resolution (n 4) amendment 76, in order to clearly refer to those issues which were or were not to be addressed by the CESL.

  59. 59.

    Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177, 6.

  60. 60.

    Recital 15 and article 6 para 7 CRD explicitly exclude language requirements with regard to contractual information and contractual terms from the scope of application of the directive.

  61. 61.

    The question whether the CESL should have laid down rules on language requirements related to the formation and interpretation of the contract had become a controversial topic of discussion; cf. D Looschelders, ‘Das allgemeine Vertragsrecht des Common European Sales Law’ (2012) 212 Archiv für die civilistische Praxis (AcP) 581, 587; EM Kieninger, in R Schulze (ed) Common European Sales Law, Commentary (2012) article 76 note 7; G Howells, B Marten and W Wurmnest, ‘Language of Information, Contract, and Communication’ in G Dannemann and S Vogenauer (eds) The Common European Sales Law in Context (2013) 190, 207; MBM Loos, ‘The Regulation of Digital Content B2C Contracts in CESL’ in K Purnhagen and P Rott (eds) Varieties of European Economic Law and Regulation (2014) 611, 619; F Zoll, in R Schulze (ed) Common European Sales Law, Commentary (2012) article 76 note 6–7.

  62. 62.

    F Faust, ‘Der Vorschlag für ein Gemeinsames Europäisches Kaufrecht’ (2012) 02 Bonner Rechtsjournal (BRJ) 129 note 48, assumed that the general exclusion of language matters from the cope of application of the CESL in Recital 27 apparently wais an editorial error.

  63. 63.

    This wording is almost identical to article II-8:107 DCFR. According to the slightly different wording of article 5:107 PECL the language in which the contract was originally drawn up is not per se the authoritative one. There merely is a preference for the interpretation in accordance with this version. The CSD and the CRD remain silent about the subject matter.

  64. 64.

    The paragraph was inserted by the European Parliament’s Legislative Resolution (n 4) amendment 129.

  65. 65.

    The wording obviously stems from article II.-9:109 DCFR. The PECL, the CISG, and the CSD do not contain respective regulations.

  66. 66.

    Article II.-3:105 DCFR holds a similar provision.

  67. 67.

    In contrast, article II.-3:102 para 2 (c) DCFR sets up the rule that in a B2C relationship the business only has to inform the consumer about the language to be used for post-contractual communications.

  68. 68.

    See Bundesgerichtshof (German Federal Court of Justice), 13/11/04, (2004) Neue Juristische Wochenschrift (NJW) 854. These online auctions must not be confused with auctions in the traditional sense of the word referred to in article 2 (u) CESL Regulation where the bidder is present in person and makes the offer himself.

  69. 69.

    In contrast, an offer can only be revoked under German law before or at the same time it has reached the offeree (§ 130 para 1 sent 2 BGB).

  70. 70.

    Digital Single Market Strategy (n 8), 5.

  71. 71.

    Article 67 para 1 of the Feasibility Study (n 7) also laid down that the person making the relevant statement could only have been a business, thereby implying that a professional buyer could also make a binding statement. In this respect the wording of article 69 was indeed clearer bearing in mind that the CESL could not have been chosen in a C2B environment, scil. if the seller was a consumer; cf. Zoll (n 27) 17.

  72. 72.

    The primary reason for this was that it was to be avoided that the requirements of the definition of a defect of the goods be split up depending on the respective type of the contract (B2B or B2C); see Begründung zum Entwurf eines Gesetzes zur Modernisierung des Schuldrechts (explanatory memorandum to the proposal for a modernised law of obligations) of 14 May 2001, Bundestags-Drucksache 14/6040, 214. This act implemented the CSD into German law.

  73. 73.

    Cf. Loos (n 61) 629. Loos discusses this issue with regard to the question whether the seller is deemed to be aware of the statement in the meaning of article 69 para 3. In my opinion, this is rather a question of objective attribution of a third party’s statement to the producer.

  74. 74.

    Committee on the Internal Market and Consumer Protection, Amendments 16–338 of 27 February 2013 to the Draft Opinion of the Committee, PE506.126v01-00, 73 amendment 150.

  75. 75.

    It is to be noted, however, that the incomplete wording was not corrected in the German version of the European Parliament’s Legislative Resolution (n 4) amendment 142, since it was still limited to ‘another person’ without reference to the chain of transactions.

  76. 76.

    Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member states concerning liability for defective products, OJ L 210, 29.

  77. 77.

    Cf. F Faust (n 18) 167 who rightly called the whole idea ‘inappropriate’; cf. also S Lorenz, ‘Das Kaufrecht und die damit verbundenen Dienstleistungsverträge im Common European Sales Law’ (2012) 212 Archiv für die civilistische Praxis (AcP) 702, 728.

  78. 78.

    The DCFR regards this wording as deliberately being expressed in wide terms so as to catch whatever might be supplied under the contract; see von Bar and Clive (n 6) article II.-9:102 comment B., 583.

  79. 79.

    Magnus (n 20) 245.

  80. 80.

    Cf. Lando and Beale (n 5) article 6:101 comment D., 300; CM Bianca and S Grundmann, EU Sales Directive, Commentary (2002) article 2 note 37 with regard to article 2 para 2 (d) CSD.

  81. 81.

    Even though such a statement may not have been incorporated as a term of the contract, it still could have been relevant with regard to article 100 (b) when assessing if the product was fit for the purposes for which goods or digital content of the same description would ordinarily be used.

  82. 82.

    It is to be doubted, however, that it would have been adequate to delete the whole article as had been proposed by members of the European Parliament’s IMCO committee; see Committee on the Internal Market and Consumer Protection, draft opinion of 25 April 2013, Amendments 339–517 (PE510.531v01-00 + 506.126v01-00), amendment 433.

  83. 83.

    Article II.-8:103 DCFR holds a similar rule stating that if a term has been established under the dominant influence of one party an interpretation of the term against that party is to be preferred.

  84. 84.

    Cf. Bianca and Grundmann (n 80) article 2 note 37 with regard to article 2 para 2 CSD.

  85. 85.

    The respective article 2 para 3 CSD only addresses B2C contracts while article IV.A.-2:307 DCFR also covers B2B agreements.

  86. 86.

    Legislative Resolution (n 4) amendment 188.

  87. 87.

    Looschelders and Makowsky (n 34) 237.

  88. 88.

    Article 6:101 PECL only refers to the knowledge or assumed knowledge of the buyer.

  89. 89.

    Both articles treat the correction of a statement as a subcategory of article 69 para 1 (a); cf. Lando and Beale (n 5) article 6:101, comment G., 301 and von Bar/Clive (n 6) article II.-9:102, comment B., 583.

  90. 90.

    In addition to this § 434 para 1 sent. 3 BGB requires the corrective statement to be made in an equivalent way which seems to require more than just a correction adequate to the situation at hand.

  91. 91.

    Cf. Bianca and Grundmann (n 80) article 2 note 42 with regard to article 2 para 4 second indent CSD.

  92. 92.

    Looschelders and Makowsky (n 32) article 69 note 12.

  93. 93.

    Cf. Bundesgerichtshof (German Federal Court of Justice), 04/02/09, (2009) Neue Juristische Wochenschrift (NJW) 1337, 1338, with regard to § 434 para 1 sent. 3 BGB.

  94. 94.

    This wording was rightly criticised as being ‘cryptic’ by Kieninger (n 61) article 69 note 5.

  95. 95.

    Looschelders and Makowsky (n 34) article 69 note 10.

  96. 96.

    If the buyer is a trader himself, there may of course be reason to impose a stricter obligation to ascertain the accuracy of the information provided by the seller due to his own expertise. Cf. article II.-9:102 para 1 (c) DCFR.

  97. 97.

    Cf. Looschelders and Makowsky (n 34) 236; Kieninger (n 61) article 69 note 11.

  98. 98.

    Cf. von Bar and Clive (n 6) article II.-9:102 comment B., 583.

  99. 99.

    Article 6:101 PECL does not set up a respective rule. However, as the comments show, the provision also is guided by the underlying principle that the buyer is only worthy of protection if the statement in fact has influenced his decision, even though this is not reflected in the wording; cf. Lando and Beale (n 5) article 6:101 comment B., 300.

  100. 100.

    von Bar and Clive (n 6) article II.-9:102 comment B., 583.

  101. 101.

    Looschelders and Makowsky (n 34) 238.

  102. 102.

    Faust (n 18) 167; Looschelders and Makowsky (n 34) article 69 note 13.

  103. 103.

    See Oberlandesgericht (Regional Higher Court) Munich, 10/04/13, (2013) Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 1526. Usually, corresponding judgements only deal with the question whether the seller was not aware or could not be expected of have been aware of a producer’s statement; cf. Oberlandesgericht Munich, 15/09/04, (2005) NJW-RR 494; OLG Hamm, 15/12/08, (2009) Neue Juristische Online-Zeitschrift (NJOZ) 1588.

  104. 104.

    Loos (n 61) 629, with regard to digital content; Bianca and Grundmann (n 80) article 2 note 42 with regard to article 2 para 2 (d) CSD.

  105. 105.

    See Loos (n 61) 629.

  106. 106.

    Legislative Resolution (n 4) amendments 140 and 142. Article 2 para 4 CSD clarifies this point in the same wording.

  107. 107.

    Any deviation from these rules is strictly prohibited by article 69 para 4.

  108. 108.

    Looschelders and Makowsky (n 34) 238.

  109. 109.

    Infante Ruiz (n 12) 77.

  110. 110.

    As article 85 (i) and (j) showed, such an agreement especially could not have been made in advance in standard contract terms supplied by the trader. This provision has been moved to article 84 (fa) and (fb) by the European Parliament’s Legislative Resolution (note 4 above) amendments 159–160. In consequence, the agreement was not only presumed to be unfair but was unfair in any case.

  111. 111.

    Zoll (n 61) article 100 note 14; Infante Ruiz (n 12) 77; MP Garcia Rubio, ‘Non Conformity of Goods and Digital Content and its Remedies’ in J Plaza Penadés and LM Martinez Velencoso (eds) European Perspectives on the Common European Sales Law (2015) 163, 168.

  112. 112.

    Cf. B Gsell ‘Fehlerbegriff und Beschaffenheitsvereinbarung im Gemeinsamen Europäischen Kaufrecht’ in H Schulte-Nölke, F Zoll, N Jansen, R Schulze (eds) Der Entwurf für ein optionales europäisches Kaufrecht (2012) 229, 246.

  113. 113.

    Articles 2:105 PECL and II.-4:104 DCFR contain mostly similar provisions. However, these articles state that a merger clause that was not individually negotiated it will only establish a rebuttable presumption that the parties intended their prior statements not to form part of the contract.

  114. 114.

    Kieninger (n 61) article 72 note 8.

  115. 115.

    In contrast, merger clauses can be challenged under German law by virtue of § 307 BGB.

  116. 116.

    Neither the PECL nor the DCFR contain a comparable provision.

  117. 117.

    Kieninger (n 61) article 72 note 8.

  118. 118.

    Article IV.A.-2:309 DCFR and article 7 CSD hold similar provisions on the subject matter.

  119. 119.

    Unlike articles IV.A.-2:301 et seq DCFR, the CESL’s system of conformity was guided by the principle of primacy of the agreement. In this respect the provision stood in line with article 2 CSD; cf. Bianca and Grundmann (n 80) article 2 note 43.

  120. 120.

    Benninghoff (n 33) 115.

  121. 121.

    V Wiese, in M Schmidt-Kessel (ed) Der Entwurf für ein Gemeinsames Europäisches Kaufrecht, Kommentar (2014) article 122 note 43.

  122. 122.

    The rules laid down in Article IV.A.-4:304 DCFR are based on the assumptions that (1) many traders these days increasingly serve as a mere point of sale for highly specialised mass-produced goods and thus they often will lack essential information about the product while (2) they are nonetheless expected to have at least a certain minimum of expertise with regard to the goods they sell, not at least because they usually also handle complaints by the customers; cf. von Bar and Clive (n 6) article IV.A.-4:304 comment B., 1365.

  123. 123.

    Cf. W Weidenkaff, in Palandt (ed) Bürgerliches Gesetzbuch (Commentary) 73rd ed (2014) § 437 note 37.

  124. 124.

    O Remien, in M Schmidt-Kessel (ed) Der Entwurf für ein Gemeinsames Europäisches Kaufrecht, Kommentar (2014) article 159 note 6.

  125. 125.

    Lando and Beale (n 5) article 8:108 comment C., 379 et seq.

  126. 126.

    Zoll (n 61) article 88 note 8.

  127. 127.

    M Schmidt-Kessel and M Kramme, in M Schmidt-Kessel (ed) Der Entwurf für ein Gemeinsames Europäisches Kaufrecht, Kommentar (2014) article 88 note 6.

  128. 128.

    Lando and Beale (n 5) article 8:108 comment C. (i), 380. Article 79 para 2 (b) explicitly sets up this rule.

  129. 129.

    Cf. Faust (n 18) 181.

  130. 130.

    Bundesgerichtshof, 24/03/99, (1999) Neue Juristische Wochenschrift (NJW) 2440, 2441; cf. also Magnus (n 17) article 79 note 19.

  131. 131.

    Faust (n 18) 181.

  132. 132.

    Zoll (n 61) article 88 note 9.

  133. 133.

    Zoll (n 61) article 88 note 17.

  134. 134.

    It has to be noted, however, that §§ 478, 479 BGB only refer to the sale of new goods while the CSD also addresses second-hand goods (cf. CSD’s Recital 8). In addition, these provisions only apply if the last sales contract of the supply chain is a B2C contract.

  135. 135.

    Cf. Weidenkaff (n 123) § 478 note 10.

  136. 136.

    Zoll (n 27) 21; Piltz, ‘The Proposal for a Regulation on a Common European Sales Law and more particular its Provisions on Remedies’ (2012) Internationales Handelsrecht (IHR) 133, 135.

  137. 137.

    M Illmer and JCM Dastis, ‘Redress in Europe and the Trap under the CESL’ (2013) 9 European Review of Contract Law (ERCL) 109, 133–136.

  138. 138.

    Infante Ruiz (n 12) 78 rightly calls this a ‘glaring lack of an indemnity rule’.

  139. 139.

    Cf. B Seifert, ‘Das Gemeinsame Europäische Kaufrecht – Cui bono?’ in T Pinkel, C Schmid, and J Falke Funktionalität und Legitimität des Gemeinsamen Europäischen Kaufrechts (2014) 243, 271–278.

  140. 140.

    As the Public Consultation Questionnaire (n 26, question 34) shows one could think that the Commission still thinks about alternatives such as model contracts. However, a rebirth of an optional instrument like the CESL is rather unlikely since the Commission obviously has committed to push further haromization of the different national laws in the EU by means of a directive or even a regulation on the subject matter.

  141. 141.

    This solution is presented by article II.-9:102 para 5 DCFR.

  142. 142.

    See above (n 137).

  143. 143.

    Magnus (n 20) 246.

  144. 144.

    See Seifert (n 139) 271 et seq.

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  1. Head of Legal Department, Chamber of Industry and Commerce (IHK), Oldenburg, Germany

    Bernd Seifert

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  1. Groningen Centre for Law and Govern, University of Groningen, Groningen, The Netherlands

    Aurelia Colombi Ciacchi

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Seifert, B. (2016). Art. 69: Pre-contractual Statements Under Article 69 CESL – Remake or Revolution?. In: Colombi Ciacchi, A. (eds) Contents and Effects of Contracts-Lessons to Learn From The Common European Sales Law. Studies in European Economic Law and Regulation, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-28074-5_9

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