Published by De Gruyter

Volume 14 Issue 2

Issue of European Review of Contract Law

Contents
Journal Overview

Frontmatter

Publicly Available June 27, 2018

Frontmatter

Page range: I-IV

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Articles

June 27, 2018

Working with Legal Principles – demonstrated using Private Autonomy and Freedom of Contract as Examples

Thomas M.J. Möllers

Page range: 101-137

Abstract

Resolving legal problems at the national and European level, legal principles are of outstanding significance. However, it often remains unclear how to utilise these legal principles – which are partly not codified – in the specific legal solution. This article addresses two questions: How can we derive legal principles from the law if they have not been codified in the law? Moreover, how can we concretise legal principles? These two main issues will be illustrated on the basis of contractual freedom and particular legal institutes such as obligation to contract, price control, and frustration of contract. A last issue will be to tackle methodical difficulties posed by legal principles at the European level.

June 27, 2018

Law applicable to Distribution Contracts and Contracts of Sale – Relationship between Framework Agreement and Application Contracts

Ewa Wójtowicz

Page range: 138-156

Abstract

Distribution networks are widely used in the international trade as a tool for bringing another party’s products on to the market. However, in international business relations it may be difficult to establish the governing law for distribution agreements and contracts of sale. This article analyses the rules for determining the law applicable to distribution agreements and determines the impact of these rules and the law applicable to a distribution agreement on the applicable law for the sales contracts formed under the agreement. The thesis of the article is that the specific nature of distribution agreements manifesting itself in a bond between distributorship (as a framework agreement) and contracts of sale (as the application contracts) has implications for the determination of the applicable law for the sales contracts.

June 27, 2018

Environmental Protection meets Consumer Sales

The Influence of Environmental Market Communication on Consumer Contracts and Remedies

Anna Beckers

Page range: 157-189

Abstract

This article discusses the legal consequences of corporate market communication in the field of environmental protection in European consumer sales law. It analyses first the potential of such market communication to influence the seller’s obligations within a consumer contract. Second, it suggests that the assessment of such market communication as to its market fairness under European unfair commercial practices law may influence the assessment of the correct contract performance under the Consumer Sales Directive. Finally, the article focuses on the remedies that are available to the consumer against the seller in case of a breach of such a contractual environmental obligation. On this point, it is argued that the remedies under consumer sales law for the delivery of a non-conforming good need to be interpreted in the light of the public (environmental) purpose that can reasonably be expected by the consumer who is addressed by such environmental market communication.

EU Legislation

June 27, 2018

European Union Legislation and Actions

Rossella Delfino

Page range: 190-193

Litigation/Case Note

June 27, 2018

Case: German Federal Court of Justice – ‘Requirements for Deadlines in the Event of lacking Conformity of Goods’

Judgment of the German Federal Court of Justice of 13 July 2016, VIII ZR 49/15 (BGH – VIII ZR 49/15 (2016) Neue Juristische Wochenschrift 3654.)

Franziska Kurz

Page range: 194-202

Book Review

June 27, 2018

Rodrigo Momberg and Stefan Vogenauer (eds), The Future of Contract Law in Latin America. The Principles of Latin American Contract Law (Oxford and Portland: Hart Publishing, 2017, 320 pages. ISBN 978-1-50991-427-2. GBP 85).

Francisco de Elizalde

Page range: 203-208

About this journal

This Journal deals with contract law and serves as a pan-European platform for discussion and analysis. The concept of a European Contract Law is still rather recent: the phrase was first coined in the 1990s. Since the early 2000s when this journal was created, European Contract Law has come to encompass an increasingly comprehensive body of law. There were three driving forces behind this development: the EC harmonisation of laws in the area of the internal market, a generally increased interest in comparative law discussions in contract law, and the European Commission’s Communication on European Contract Law, the Commission’s Action Plan and the Common Frame of Reference process. These developments brought about a changed climate of discussion. The foundations of contract law, examined from many perspectives and in view of various national legal systems and an increasing number of disciplines, are currently being discussed in great detail in the European arena. In 10 years contract law may be the first area of European private law to be regulated in a fully fleshed out European Code.

European Contract Law comprises diverse areas of the law such as sales, standard contract terms, distribution chains, marketing practices, research and development agreements, contract law copyright aspects, financial and investment services contracts, insurance contracts and e-commerce as well as non-discrimination within and beyond labour law and more generally, important aspects of labour contracts and other symbiotic contracts.

The importance and breadth of the field and the methods and questions involved are such that ERCL has established itself as the specialised European journal in this area. Since 2004 the standard of information and discussions on this platform have been consolidated: ERCL discusses the body of law in three sections: articles, case law, and literature on EC Contract Law. This takes place mainly in book reviews and, in addition, contains short sections on the most recent EC legislation, sectoral developments, national developments and other news. The Review focuses on existing law at the EC level and all rules influencing the formation, content and execution of contracts from default rules to regulation, from marketing aspects to the content of contracts, from consumer (and also labour) law to general contract law. The Review is open to a variety of approaches and provides the opportunity to read traditional 'dogmatic' explanations of the upcoming and existing law, assessments through comparative law studies as well as economic analysis and discussions of the philosophical foundations and major structural features. The Review is and has been the site of intense discussion of proposals for codification or, more generally, systemisation and comprehensive development of contract law at the EC level. The European Contract Law Code is too realistic an option and much too important not to be thoroughly discussed as transparently as possible with as many competing ideas and approaches as possible. Several special issues have followed this process in great detail. The journal is meant to help in establishing a functional market of ideas in one of the core areas of private law and one of the most important areas of European private law. ERCL is the journal covering this large body of law and the modern solutions to the problems encountered.