Volume 50 (2013)

Volume 50 (2013) / Issue 1/2

Fabrizio Cafaggi, 'From a status to a transaction-based approach? Institutional design in European contract law' (2013) 50 Common Market Law Review, Issue 1/2, pp. 311–329


The Common European Sales Law (CESL), currently under examination at the European Parliament, is intended to introduce a regime for cross-border sales that individual Member States can extend to domestic transactions (Art.13), aiming to promote harmonization by choice rather than by command.  It constitutes an opt-in system that parties can adopt (Art.8), as an alternative to the CISG in B2B transactions, and an alternative to national regimes in B2B transactions.


The analysis of pre-contractual information in European contract law (ECL), with special reference to the CESL, is used to substantiate a broader claim: the weakness of a status-based approach to ECL and the desirability to move to a transaction-based approach, including reference to supply chains.  The intuition is that the determination "if" and "how" disclosure should occur is, in both cases, a consideration primarily dependent on the type of transaction parties engage in, whether it is a standardized or a customized one.  Only within this distinction might, the status of the parties play a role.  This essay suggests a shift from status to transaction, with the sales regime organized around transaction technologies.  Such a change will not eliminate the differences between consumer and business contracts but will reverse the order, with status as a potential sub-variable of the type of transaction.

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ISSN: 0165-0750
ID: COLA2013050