European Contract Law

Transcription

1 Kooperationswerke Beck - Hart - Nomos European Contract Law Bearbeitet von Von: Reiner Schulze, und Fryderyk Zoll 1. Auflage Buch. 335 S. Gebunden ISBN Format (B x L): 16,2 x 24,5 cm Recht > Zivilrecht > Zivilrecht allgemein, Gesamtdarstellungen schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Schulze / Zoll European Contract Law Second Edition C.H.BECK HART NOMOS

3 Schulze / Zoll European Contract Law

4 European Contract Law by Prof. Dr. Dr. h.c. Reiner Schulze Prof. Dr. Dr. h.c. Fryderyk Zoll prepared by Dr. Jonathon Watson Fully revised Second Edition 2018 C.H.BECK. HART. NOMOS

5 Published by Nomos Verlagsgesellschaft, Waldseestraße 3-5, Baden-Baden, Germany, Co-published by Verlag C.H.BECK ohg, Wilhelmstraße 9, München, Germany, and Hart Publishing, Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, United Kingdom, Published in North America (US and Canada) by Hart Publishing, c/o International Specialized Book, Services, 930 NE 58 th Avenue, Suite 300, Portland, OR , USA, ISBN (Nomos) ISBN (elibary) ISBN (C.H.BECK) ISBN (Hart Publishing) Second Edition 2018 Nomos Verlagsgesellschaft, Baden-Baden Printed in Germany. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machine or similar means, and storage in data banks. Under 54 of the German Copyright Law where copies are made for other than private use a fee is payable to»verwertungsgesellschaft Wort«, Munich, Germany.

6 Foreword It is somewhat indicative of the nature of the developments in European contract law that a new edition of this volume was necessary just one year since the first edition. Legal science, practice and education have not only demanded a complete overview and structure of the extensive acquis communautaire but European contract law has also developed so rapidly since the first edition. Notably, the European Commission has ceased to pursue its proposal for a Common European Sales Law, yet the legal landscape has been shaped in particular by the new Package Travel Directive and Commission proposals for Directives on the Online Sale of Goods, and on the Supply of Digital Content. In addition, decisions from the CJEU have further developed, for instance, legislation on consumer guarantees, and the control of contract terms. Legal doctrine has also witnessed intense and lively discussions on the consequences of the Digital Revolution for European contract law. This new edition contains extensive changes and additions in order to accommodate the recent changes in European contract law. In comparison to the first edition, this second edition contains revisions in light of new approaches in European legislation, contract types and contract parties, unfair contract terms, performance obligations, and consequences of non-performance. Furthermore, this edition contains a sub-chapter on long-term contracts in European private law. In considering the changes that arise for contract law from, above all, the new challenges presented by digitization, the new edition strives to fulfil an aim already outlined in the foreword to the first edition: to allow jurists from practice and legal science, as well as law students, to be a part of the on-going development of European contract law as a core element of European private law. Accordingly, the following volume conveys fundamental information on the content, methods and objectives of European legislation in this field and explains the interaction between legislation, case law, and legal science in the origins and development of European contract law. In particular, it attempts to outline the qualities of this supranational law and its innovative features in comparison to traditional contract law concepts. In so doing it seeks to serve as a guide to unfamiliar territory and promote an understanding of the characteristics of a new legal development. The new edition is once more the product of numerous discussions between the authors. The chapters 1; 3 II 1 6, III; 5; 6 I, IV, and 8 were written by Reiner Schulze, 2, 3 I, II 7, 4, 6 II, III, and 7 by Fryderyk Zoll. The chapters authored by Fryderyk Zoll were completed as part of the project Made in Europe European Legal Standards of Quality for Services on the Global Competitive Market and funded by the Narodowy Centrum Nauki (National Science Centre) on the basis of decision Nr. DEC-2012/04/A/HS5/ V

7 Foreword The content and structure are based on the second German edition of Europäisches Vertragsrecht (Nomos 2017). The authors kindly thank Jonathon Watson, without whom this adapted English language version would not have been possible. July 2017 Reiner Schulze/Fryderyk Zoll VI

8 Contents Abbreviations... Legislation and Other Sources... List of Cases... XV XIX XXIII Chapter 1 Foundations... 1 I. Introduction European contract law Aim and structure of this book Sources and literature... 3 a) Sources... 3 b) Literature... 5 II. Contract Law as Part of European Private Law Concept... 5 a) Overview... 5 b) Variations Dualism of national and supranational law a) Origins b) Independence of the supranational legal order c) Interdependency between national and supranational law.. 12 III. Contract Law in the Acquis Communautaire Types of rules Primary law Directives a) Development b) Fragmentation c) Minimum and full harmonization Selected legislation and case law a) Consumer protection b) Small and medium-sized enterprises c) E-Commerce d) Payment services e) Non-discrimination f) Insurance contracts g) Others VII

9 Contents IV. Coherency of European Contract Law Academic approaches a) Principles of European Contract Law b) Pavia Draft c) General contract law and commercial law d) Acquis Principles Commission Action Plan and the Common Frame of Reference a) Basic sources b) Draft Common Frame of Reference The CESL as a codification a) Concept b) Preparation c) Structure and scope of application d) Codification character e) Legislative process and withdrawal Focus on the Digital Single Market Chapter 2 Core Elements I. Concept of Contract Contract and juridical act Contract as consensus ad idem? a) Contract and inertia selling b) Complex process of conclusion of contract Contract and notice II. Types of Contract in the Acquis Communautaire Specific circumstances a) Commercial agency b) Timeshare c) Consumer sales d) Consumer credit Increase in contract types in the acquis communautaire a) Framework contract b) Advisory services c) Service contracts d) Contract types under the CESL e) Contracts for the Supply of Digital Content III. Mixed Contracts IV. Freedom of Contract Overview Non-mandatory and mandatory law Limitations on contract drafting by controlling contract terms.. 82 VIII

10 Contents 4. Good faith Non-discrimination a) Foundation b) Discrimination due to a personal characteristic c) Discrimination as an obstacle to the internal market Party status V. Consumers and other protected parties Overview Notion of the consumer in the acquis communautaire Other protected parties Chapter 3 Conclusion and Content of Contracts I. Pre-contractual Duties Overview Comparative perspectives Pre-contractual duties and good faith in the acquis communautaire Pre-contractual duties and good faith in the CESL Pre-contractual duties and good faith in the DCFR Liability under the Acquis Principles Information duties in the acquis communautaire Between pre-contractual information duties and fair trading Standardized performance Pre-contractual information duties in the CESL Pre-contractual information duties in the Acquis Principles and DCFR Consequences of breach II. Conclusion of Contract Overview a) Introduction b) Acquis communautaire c) Academic and legislative drafts Agreement a) Principle b) Requirements c) Additional requirements? Modes a) Offer and acceptance b) Conclusion without offer and acceptance c) Conclusion via distance means of communication Pre-contractual public statements a) Party to the contract b) Third parties IX

11 Contents 5. Unilateral promises a) Binding effect b) Protecting the offeror Inertia selling a) Principle b) Functions c) Requirements d) Legal effects Defects in Consent a) An alternative concept for protecting against flawed decisions? b) Defects in consent in the acquis communautaire c) Mistake and protection against unfair commercial practices d) Defects in consent in the CESL III. Right of Withdrawal Overview a) Introduction b) Emergence of a general part Functions a) Protection b) Creating confidence c) Scope Legal nature a) Formative right b) Distinction from revocation and termination rights c) Mandatory nature Exercise a) Notice b) Dispatch principle c) Information on the right of withdrawal Effect a) Restitution b) Termination c) Obligations of the parties d) Service contracts e) Ancillary contracts Chapter 4 Unfair Contract Terms I. Overview Unfair terms law as a core area of contract law Unfair Terms Directive a) Structure X

12 Contents b) Standard under the general clause c) Relationship to German law d) Approaches to further development Unfair Terms in the Acquis Principles and DCFR Unfair Terms in the CESL II. Comparative Law Foundations Development in German law Control of terms under the French system English and Scandinavian Systems III. Unfair Terms Directive as a Compromise IV. General Clause and the List of Unfair Terms V. Late Payment Directive VI. Acquis Principles VII. DCFR VIII. Reform IX. The Exclusion of Unfair Terms from the Consumer Rights Directive X. CESL Chapter 5 Performance Obligations I. Performance Obligations Acquis communautaire Proposed legislation a) Typical performance obligations b) Counter-performance c) Further areas of regulation under the CESL-D d) Emergence of a general conceptual basis II. Forms of performance Overview Place and type of performance Time III. Risk Basic features Consumer contracts Commercial contracts IV. Features of long-term contracts Overview a) Types b) Acquis communautaire c) Supply of digital content Performance and non-performance XI

13 Contents 3. Termination Chapter 6 Consequences of Non-performance I. Introduction Innovative approaches in the acquis communautaire System a) Acquis communautaire b) CESL c) Services II. Non-performance Overview Requirement in the acquis communautaire Types of non-performance in the acquis communautaire Requirement in the CESL III. Right to Cure Acquis communautaire DCFR CESL IV. Remedies for the Injured Party Performance a) Overview b) Requirements and exclusion c) Subsequent performance Withholding performance a) Overview b) Requirements c) Consequence Termination a) Overview b) Requirements c) Notice of termination d) Examination and notification duties e) Consequences Price reduction a) Overview b) Requirements and exclusion c) Consequences Damages and interest a) Overview b) Damages in the CESL c) Interest Restitution XII

14 Contents Chapter 7 Preclusion and Prescription I. Acquis Communautaire II. Proposal for Comprehensive European Rules III. Conclusions Chapter 8 Outlook Index XIII