Page 436 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
8.7 The Proposal for a Common European Sales Law of 2011
The previous sections explored how some of the national civil codes had endeavoured over the years to put an end to numerous difficulties which existed with regard to concurrence of overlapping remedies and the limitation periods of the remedies for defects in the thing exchanged. In 2011, the European Commission published a Proposal for a Common European Sales Law (CESL). It is meant to serve as an optional regime for cross-border sales of movable goods in the European Union.154 The drafters of the CESL had inevitable come to terms with the varying regimes regulating defects in things exchanged for money which exist throughout the Member States of the European Union. For this tasks they could draw from the Draft Frame of Common Reference which appeared in 2009.155 As the CESL largely follows the DFCR in matters of non-conformity of sold goods, the latter will not be separately dealt with in this section.
In article 99 (1), the CESL introduces a duty to deliver in conformity with the \[content of the\] contract.156 In article 102, it is decreed that goods must be free from any third-party claim.157 The remedies for non-conformity are those available in the event of non-performance. A buyer can, among other things, sue for performance, rescind the contract, claim reduction of price, and claim damages.158 As regards the limitation of remedies, article 122 lays down a duty for the buyer to notify the seller about the lack of conformity within due time. According to the first section of the same article, this period starts to run when the goods are supplied or when the buyer discovers or could be expected to discover the lack of conformity. This indecisiveness about when the limitation159 starts to run is checked by section three, according to which the buyer must have made the notification within two years from the time at which the goods were actually handed over to the buyer.160 The limitation of all remedies for non-performance is fixed for
154 COM (2011) 635 final, Preamble, no 21, p. 18: 'In any case, in business to business transactions, traders enjoy full freedom of contract and are encouraged to draw inspiration from the Common European Sales law in the drafting of their contractual terms'; Plaza Penadés & Martinez Velencoso (eds.), European Perspectives, preface, v.; on one of the Proposal's faltered predecessors 'COM (2008) 614 final' see De Bruijn, 'Historical perspectives', p. 111.
155 Bar & Clive, DCFR, pp. 1308ff. (articles 2:301-2:309).
156 Art. 99 (1) CESL: In order to conform with the contract, the goods or digital content must: be of the
quantity, quality and description required by the contract; be contained or packaged in the manner required by the contract; and be supplied along with any accessories, installation instructions or other instructions required by the contract.
157 Art. 102 (1) CESL: The goods must be free from and the digital content must be cleared of any right or not obviously unfounded claim of a third party.
158 Art. 106 (1) CESL: In the case of non-performance of an obligation by the seller, the buyer may do any of the following: (a) require performance, which includes specific performance, repair or replacement of the goods or digital content, under Section 3 of this Chapter; (b)... (c) terminate the contract under Section 5 of this Chapter and claim the return of any price already paid, under Chapter 17; (d) reduce the price under Section 6 of this Chapter; and (e) claim damages under Chapter 16.
159 In the CESL the word 'prescription' is used to denote the period after which a remedy can no longer be brought.
160 Art. 122 CESL: (1) In a contract between traders the buyer may not rely on a lack of conformity if the buyer does not give notice to the seller within a reasonable time specifying the nature of the lack of conformity. The time starts to run when the goods are supplied or when the buyer discovers or could be expected to discover the lack of conformity, whichever is later. (2). The buyer loses the right to rely on a
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