The many advantages of a common European sales law

Whatever its importance may be, the draft regulation for a common European sales law (CESL) has had one major effect. It has been discussed all over Europe and even outside.

The question whether or not an Optional Instrument should be introduced, is hotly debated. Basically, authors have either given a positive appraisal of the project, albeit usually with reservations regarding specific proposals, or rejected the Optional Instrument. Among the latter there is a widely held view that if the proposal does not help, it does not harm either. This view is challenged in this paper.

A different question addressed in this paper is why the Common European Sales Law seems to provoke the German speaking part of Europe so much more than other linguistic communities. The reason may be the following. The draft Regulation is of course available in all official languages including German. Until its publication, the earlier Feasibility study existed only in English. And although this is comprehensible to most German lawyers, it does make discussion of technical issues awkward. The present abundance of German language commentaries is most certainly attributable to this linguistic background.

Although basically the CESL proposal is modeled after the Feasibility study, there are also some differences. The major difference is that whereas the Feasibility study dealt with Contract Law in general, the CESL focuses on a sales plus contract. By ‘sales plus’ we should think of sales contracts and some related contracts. In the future, the CESL – or its follow-up – may serve as a building block for a Civil Code. It may even contribute to the further development of CISG. This also holds true for other parts of private law, although provisions on tort law for instance are more difficult to imagine as the object of an option. The CESL may serve as a regional supplement to CISG. When establishing the final text of the CESL, no limiting time constraints should be imposed.