CISG vs. CESL

Magnus, Ulrich

doi:10.1515/9783866539662.97

Cited by 172 publications

(3 citation statements)

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“…As noted earlier, the fact that it is an opt‐in instrument does not bode well for its implementation. Behavioral law and economics or behavioral decision theory notes that opting‐in is less likely to be employed because the parties are often unaware of the opt‐in instrument, the high transaction costs of learning a new legal regime acts, and parties generally prefer to stay with what they perceive as the status quo (Sunstein, 2000; Simon, 1955; Samuelson and Zeckhauser, 1988; Korobkin, 1998; Magnus, 2012) In the case of an English internet trader or SME, the party is likely to feel more comfortable with the application of the pre‐existing UK's Sale of Goods Act. In Germany, an SME is likely to feel more comfortable with the CISG and its surrounding German jurisprudence or opting into the BGB, then opting into a new alternative national sales regime.…”

Section: Consumer “Acquis” and Conspiracy Theorymentioning

confidence: 99%

“…Magnus notes that if CESL is enacted it represents the:[…] first time that the EU codifies contract law and tries to enact a complete regulation of the most important contract type. It is a great step ahead from piecemeal legislation in the past to this new codifying approach (Magnus, 2012). …”

Section: Consumer “Acquis” and Conspiracy Theorymentioning

confidence: 99%

“…England is still a Contracting State of the Hague Uniform Sales Law, the predecessor of the CISG, but ratified it under the reservation that the parties choose it. In 40 years no single case has reached the English courts concerning the Hague Sales Law (Magnus, 2012).…”

Section: Cesl Cisg and The Problem Of Opting‐inmentioning

confidence: 99%

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Common European Sales Law

DiMatteo

2012

Journal of International Trade Law and Policy

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PurposeThis article seeks to take a critical look at the proposed Common European Sales Law (CESL).Design/methodology/approachThe article looks at the rationales given to support the enactment of the CESL. The approach is critical in nature seeking to vet the plausibility of the rationales given for a new regulation The article also takes a critical look at the CESL's structure and trilogy of coverage – sale of goods, supply of digital content, and supply of services.FindingsThe article exposes some of the shortcomings of the CESL and the dangers to substantive private law of crafting a regulation based on political feasibility.Research limitations/implicationsThe CESL as proposed offers some innovative ideas in areas of the bifurcation of businesses into large and small to medium‐sized enterprises (SMEs), as well as rules covering digital content and the supply of trade‐related services. In the end, the analysis suggests a more thorough review is needed to better understand the CESL's interrelationship with the Convention on Contracts for the International Sales Law (CISG) and EU consumer protection law.Practical implicationsFurther analysis is needed and unanswered questions need to be answered prior to the enactment of the CESL into law. A practical first step would to begin with a more targeted law focused on internet trading and licensing contracts.Originality/valueThis article questions the rationales given for the enactment of an ambitious new regulation covering disparate areas of sale of goods, supplying (licensing) of digital content, trade‐related services, and consumer protection. It further questions the rationality and practicality of the creation of the designation of SMEs as types of businesses in need of extra protections not currently provided by contract law's general policing doctrines.

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