From a status to a transaction-based approach? : institutional design in European contract law

Abstract

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.