P7_TA(2014)0159 Common European Sales Law ***I European Parliament legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011)0635 — C7-0329/2011 — 2011/0284(COD)) P7_TC1-COD(2011)0284 Position of the European Parliament adopted at first reading on 26 February 2014 with a view to the adoption of Regulation (EU) No …/2014 of the European Parliament and of the Council on a Common European Sales Law
Date: 2014-02-26
Institutions: Committee on Economic and Monetary Affairs, Committee on Legal Affairs, Committee on the Internal Market and Consumer Protection, European Parliament
Subjects: commercial contract, consumer protection, corpus juris (EU), goods and services, intra-EU trade, law of obligations, provision of services, purchase, single market, trade restriction




C_2017285EN.01063801.xml










29.8.2017   


EN


Official Journal of the European Union


C 285/638





P7_TA(2014)0159
Common European Sales Law ***I
European Parliament legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011)0635 — C7-0329/2011 — 2011/0284(COD))
(Ordinary legislative procedure: first reading)
(2017/C 285/64)

The European Parliament,






—


having regard to the Commission proposal to Parliament and the Council (COM(2011)0635),










—


having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0329/2011),










—


having regard to Article 294(3) of the Treaty on the Functioning of the European Union,










—


having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Belgian Senate, the German Bundestag, the Austrian Federal Council and the United Kingdom House of Lords, asserting that the draft legislative act does not comply with the principle of subsidiarity,










—


having regard to the opinion of the European Economic and Social Committee of 29 March 2012 (1),










—


having regard to Rule 55 of its Rules of Procedure,










—


having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on the Internal Market and Consumer Protection and the Committee on Economic and Monetary Affairs (A7-0301/2013),












1.


Adopts its position at first reading hereinafter set out;












2.


Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;












3.


Instructs its President to forward its position to the Council, the Commission and the national parliaments.






(1)  OJ C 181, 21.6.2012, p. 75.


P7_TC1-COD(2011)0284
Position of the European Parliament adopted at first reading on 26 February 2014 with a view to the adoption of Regulation (EU) No …/2014 of the European Parliament and of the Council on a Common European Sales Law
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee (1),
Acting in accordance with the ordinary legislative procedure (2),
Whereas:






(1)


There are still considerable bottlenecks to cross-border economic activity that prevent the internal market from exploiting its full potential for growth and job creation. Currently, only one in ten traders in the Union exports goods within the Union and the majority of those who do, only export to a small number of Member States. From the range of obstacles to cross-border trade including tax regulations, administrative requirements, difficulties in delivery, language and culture, traders consider the difficulty in finding out the provisions of a foreign contract law among the top barriers in business-to-consumer transactions and in business-to-business transactions. This also leads to disadvantages for consumers due to limited access to goods. Different national contract laws therefore deter the exercise of fundamental freedoms, such as the freedom to provide goods and services, and represent a barrier to the functioning and continuing establishment of the internal market. They also have the effect of limiting competition, particularly in the markets of smaller Member States.










(2)


Contracts are the indispensable legal tool for every economic transaction. However, the need for traders to identify or negotiate the applicable law, to find out about the provisions of a foreign applicable law often involving translation, to obtain legal advice to make themselves familiar with its requirements and to adapt their contracts to different national laws that may apply in cross-border dealings makes cross-border trade more complex and costly compared to domestic trade. Contract-law-related barriers are thus a major contributing factor in dissuading a considerable number of export-oriented traders from entering cross-border trade or expanding their operations into more Member States. Their deterrent effect is particularly strong for small and medium-sized enterprises (SME) for which the costs of entering multiple foreign markets are often particularly high in relation to their turnover. As a consequence, traders miss out on cost savings they could achieve if it were possible to market goods and services on the basis of one uniform contract law for all their cross-border transactions and, in the online environment, one single web-site.










(3)


Contract law related transaction costs which have been shown to be of considerable proportions and legal obstacles stemming from the differences between national mandatory consumer protection rules have a direct effect on the functioning of the internal market in relation to business–to–consumer transactions. Pursuant to Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council (3) whenever a trader directs its activities to consumers in another Member State the consumer protection provisions of the Member State of the consumer's habitual residence that provide a higher level of protection and cannot be derogated from by agreement by virtue of that law will apply, even where another applicable law has been chosen by the parties. Therefore, traders need to find out in advance whether the consumer's law provides higher protection and ensure that their contract is in compliance with its requirements. In addition, in e-commerce, web-site adaptations which need to reflect mandatory requirements of applicable foreign consumer contract laws entail further costs. The existing harmonisation of consumer law at Union level has led to a certain approximation in some areas. However the differences between Member States' laws remain substantial; existing harmonisation leaves Member States a broad range of options on how to comply with the requirements of Union legislation and where to set the level of consumer protection.










(4)


The contract-law-related barriers which prevent traders from fully exploiting the potential of the internal market also work to the detriment of consumers. Less cross-border trade results in fewer imports and less competition. Consumers may be disadvantaged by a limited choice of goods at higher prices both because fewer foreign traders offer their products and services directly to them and also indirectly as a result of restricted cross-border business-to-business trade at the wholesale level. While cross-border shopping could bring substantial economic advantages in terms of more and better offers, many consumers are also reluctant to engage in cross-border shopping, because of the uncertainty about their rights. Some of the main consumer concerns are related to contract law, for instance whether they would enjoy adequate protection in the event of purchasing defective products. As a consequence, a substantial number of consumers prefer to shop domestically even if this means they have less choice or pay higher prices.










(5)


In addition, those consumers who want to benefit from price differences between Member States by purchasing from a trader from another Member State are often hindered due to a trader's refusal to sell. While e-commerce has greatly facilitated the search for offers as well as the comparison of prices and other conditions irrespective of where a trader is established, orders by consumers from abroad are very frequently refused by traders which refrain from entering into cross-border transactions.










(6)


Differences in national contract laws therefore constitute barriers which prevent consumers and traders from reaping the benefits of the internal market. Those contract-law-related barriers would be significantly reduced if contracts could be based on a single uniform set of contract law rules irrespective of where parties are established. Such a uniform set of contract law rules should cover the full life cycle of a contract and thus comprise the areas which are the most important when concluding contracts. It should also include fully harmonised provisions to protect consumers.










(7)


The differences between national contract laws and their effect on cross-border trade also serve to limit competition. With a low level of cross-border trade, there is less competition, and thus less incentive for traders to become more innovative and to improve the quality of their products or to reduce prices. Particularly in smaller Member States with a limited number of domestic competitors, the decision of foreign traders to refrain from entering these markets due to costs and complexity may limit competition, resulting in an appreciable impact on choice and price levels for available products. In addition, the barriers to cross-border trade may jeopardise competition between SME and larger companies. In view of the significant impact of the transaction costs in relation to turnover, an SME is much more likely to refrain from entering a foreign market than a larger competitor.










(8)




Contract-law-related barriers prevent consumers and traders from fully exploiting the potential of the internal market and are particularly relevant in the area of distance selling, which should be one of the tangible results of the internal market. In particular, the digital dimension of the internal market is becoming vital for both consumers and traders as consumers increasingly make purchases over the internet and an increasing number of traders sell online. Given that communication and information technology means are constantly developing and becoming increasingly accessible, the growth potential of internet sales is very high. Against this background, and to

To overcome these

such
 contract-law-related barriers, parties should have the possibility to agree that their contracts 
they conclude at a distance, and, in particular, online,
 should be governed by a single uniform set of contract law rules with the same meaning and interpretation in all Member States, a Common 
European
 Sales Law. The

That
 Common European Sales Law should represent an additional option 
for distance selling and, in particular, internet trade,
 increasing the choice available to parties and open to use whenever jointly considered to be helpful in order to facilitate cross-border trade and reduce transaction and opportunity costs as well as other contract-law-related obstacles to cross-border trade. It should become the basis of a contractual relationship only where parties jointly decide to use it. [Am. 1]











(9)


This Regulation establishes a Common European Sales Law 
for distance contracts and in particular for online contracts
. It harmonises

approximates
 the contract laws of the Member States not by requiring amendments to the pre-existing

first
 national contract- law 
regime
, but by creating within each Member State's national law a second contract- law regime for contracts within its scope. This 
directly applicable
 second regime 
should be an integral part of the legal order applicable in the territory of the Member States. In so far as its scope allows and where parties have validly agreed to use it, the Common European Sales Law should apply instead of the first national contract-law regime within that legal order. It
 should be identical throughout the Union and exist alongside the pre-existing rules of national contract law. The Common European Sales Law should apply on a voluntary basis, upon an express agreement of the parties, to a cross-border contract. [Am. 2]











(10)


The agreement to use the Common European Sales Law should be a choice exercised within the scope of the respective national law

legal order
 which is applicable

determined as the applicable law
 pursuant to Regulation (EC) No 593/2008 or, in relation to pre-contractual information duties, pursuant to Regulation (EC) No 864/2007 of the European Parliament and of the Council (4), or any other relevant conflict of law rule. The agreement to use the Common European Sales Law should

results from a choice between two different regimes within the same national legal order. That choice,
 therefore
, does
 not amount to, and is not to be confused with, a choice of the applicable law

between two national legal orders
 within the meaning of the conflict-of-law rules and should be without prejudice to them. This Regulation will therefore not affect any of the existing conflict of law rules 
such as those contained in Regulation (EC) No 593/2008
. [Am. 3]











(11)


The Common European Sales Law should comprise of a complete

comprehensive
 set of fully harmonised

uniform
 mandatory consumer protection rules. In line with Article 114(3) of the Treaty, those rules should guarantee a high level of consumer protection with a view to enhancing consumer confidence in the Common European Sales Law and thus provide consumers with an incentive to enter into cross-border contracts on that basis. The rules should maintain or improve the level of protection that consumers enjoy under Union consumer law. 
Furthermore, the adoption of this Regulation should not preclude revision of the Directive on consumer rights, with the aim of providing full high-level harmonisation of consumer protection in the Member States. [Am. 4]













(11a)






The definition of consumer should cover natural persons who are acting outside their trade, business, craft or profession. However, in the case of dual-purpose contracts, where the contract is concluded for purposes partly within and partly outside a person's trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer. In order to determine whether a natural person is acting fully or partly for purposes which come within that person's trade, business, craft or profession, the way in which the person in question behaves towards the contracting party should be taken into account. [Am. 5]











(12)




Once there is a valid agreement to use the Common European Sales Law, only the Common European Sales Law should govern the matters falling within its scope.
 Since the Common European Sales Law contains a complete

comprehensive
 set of fully

uniform
 harmonised mandatory consumer protection rules, there will be no disparities between the laws of the Member States in this area, where the parties have chosen to use the Common European Sales Law. Consequently, Article 6(2) of Regulation (EC) No 593/2008, which is predicated on the existence of differing levels of consumer protection in the Member States, has no practical importance for

relevance to
 the issues covered by the Common European Sales Law
, as it would amount to a comparison between the mandatory provisions of two identical second contract-law regimes
. [Am. 6]











(13)


The Common European Sales Law should be available for cross-border contracts, because it is in that context that the disparities between national laws lead to complexity and additional costs and dissuade parties from entering into contractual relationships
, and that distance trade, in particular trade online, has a high potential
. The cross-border nature of a contract should be assessed on the basis of the habitual residence of the parties in business-to-business contracts. In a business-to-consumer contract the cross-border requirement should be met where either the general address indicated by the consumer, the delivery address for the goods or the billing address indicated by the consumer are located in a Member State, but outside the State where the trader has its habitual residence. [Am. 7]











(14)


The use of the Common European Sales Law should not be limited to cross-border situations involving only Member States, but should also be available to facilitate trade between Member States and third countries. Where consumers from third countries are involved, the agreement to use the Common European Sales Law, which would imply the choice of a foreign law for them, should be subject to the applicable conflict-of-law rules.










(15)


Traders engaging in purely domestic as well as in cross-border trade transactions may also find it useful to make use of a single uniform contract for all their transactions. Therefore Member States should be free to decide to make the Common European Sales Law available to parties for use in an entirely domestic setting.










(16)


The Common European Sales Law should be available in particular for the sale of movable goods, including the manufacture or production of such goods, as this is the economically single most important contract type which could present a particular potential for growth in cross-border trade, especially in e-commerce.










(17)


In order to reflect the increasing importance of the digital economy, the scope of the Common European Sales Law should also cover contracts for the supply of digital content. The transfer of digital content for storage, processing or access, and repeated use, such as a music download, has been growing rapidly and holds a great potential for further growth but is still surrounded by a considerable degree of legal diversity and uncertainty. The Common European Sales Law should therefore cover the supply of digital content irrespective of whether or not that content is supplied on a tangible medium.












(17a)






Cloud computing is developing rapidly and has great potential for growth. The Common European Sales Law provides a coherent set of rules adapted to the distance supply, and in particular the supply online, of digital content and related services. It should be possible for those rules to also apply when digital content or related services are provided using a cloud, in particular when digital content can be downloaded from the seller's cloud or temporarily stored in the provider's cloud. [Am. 8]











(18)


Digital content is often supplied not in exchange for a price but in combination with separate paid goods or services, involving a non-monetary consideration such as giving access to personal data or free of charge in the context of a marketing strategy based on the expectation that the consumer will purchase additional or more sophisticated digital content products at a later stage. In view of this specific market structure and of the fact that defects of the digital content provided may harm the economic interests of consumers irrespective of the conditions under which it has been provided, the availability of the Common European Sales Law should not depend on whether a price is paid for the specific digital content in question. 
However, in such cases, the remedies of the buyer should be limited to damages. On the other hand, the buyer should be able to have recourse to the full range of remedies, except price reduction, even if he is not obliged to pay a price for the supply of digital content, provided that his counter-performance, such as the provision of personal data or other utility having commercial value for the supplier, equals the payment of the price, given that in such cases the digital content is not actually supplied free of charge. [Am. 9]











(19)


With a view to maximising the added value of the Common European Sales Law its material scope should also include certain services provided by the seller that are directly and closely related to specific goods or digital content supplied on the basis of the Common European Sales Law, and in practice often combined in the same or a linked contract at the same time, most notably repair, maintenance or installation of the goods or the digital content 
or temporary storage of digital content in the provider's cloud
. [Am. 10]













(19a)






The Common European Sales Law may also be used for a contract that is linked to another contract between the same parties that is not a sales contract, a contract for the supply of digital content or a related services contract. The linked contract is governed by the respective national law which is applicable pursuant to the relevant conflict-of-law rule. The Common European Sales Law may also be used for a contract that includes any element other than the sale of goods, the supply of digital content or the provision of related services, provided those elements are divisible and their price can be apportioned. [Am. 11]











(20)


The Common European Sales Law should not cover any related contracts by which the buyer acquires goods or is supplied with a service, from a third party. This would not be appropriate because the third party is not part of the agreement between the contracting parties to use the rules of the Common European Sales Law. A related contract with a third party should be governed by the respective national law which is applicable according pursuant to Regulations (EC) No 593/2008 and (EC) No 864/2007 or any other relevant conflict of law rule.










(21)


In order to tackle the existing internal market and competition problems in a targeted and proportionate fashion, the personal scope of the Common European Sales Law should focus on parties who are currently dissuaded from doing business abroad by the divergence of national contract laws with the consequence of a significant adverse impact on cross-border trade. It should therefore cover all business-to consumer transactions and contracts between traders where at least one of the parties is an SME drawing upon Commission Recommendation 2003/361/EC (5). This should, however, be without prejudice to the possibility for Member States to enact legislation which makes the Common European Sales Law available for contracts between traders, neither of which is an SME. 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.










(22)


The agreement of the parties to a contract 
to the use of the Common European Sales Law
 is indispensable for the application of the Common European Sales Law. That agreement should be subject to strict requirements in business-to-consumer transactions. Since, in practice, it will usually be the trader who proposes the use of the Common European Sales Law, consumers must be fully aware of the fact that they are agreeing to the use of rules which are different from those of their pre-existing national law. Therefore, the consumer's consent to use the Common European Sales Law should be admissible only in the form of an explicit statement separate from the statement indicating the agreement to the conclusion of the contract. It should therefore not be possible to offer the use of the Common European Sales Law as a term of the contract to be concluded, particularly as an element of the trader's standard terms and conditions. The trader should provide the consumer with a confirmation of the agreement to use the Common European Sales Law on a durable medium. [Am. 12]











(23)


In addition to being a conscious choice, the consent of a consumer to the use of the Common European Sales Law should be an informed choice. The trader should therefore not only draw the consumer's attention to the intended use of the Common European Sales Law but should also provide information on its nature and its salient features. In order to facilitate this task for traders, thereby avoiding unnecessary administrative burdens, and to ensure consistency in the level and the quality of the information communicated to consumers, traders should supply consumers with the standard information notice provided for in this Regulation and thus readily available in all official languages in the Union. Where it is not possible to supply the consumer with the information notice, for example in the context of a telephone call, or where the trader has failed to provide the information notice, the agreement to use the Common European Sales Law should not be binding on the consumer until the consumer has received the information notice together with the confirmation of the agreement and has subsequently expressed consent.












(23a)






Where the agreement of the parties to the use of the Common European Sales Law is invalid or where the requirements to provide the standard information notice are not fulfilled, questions as to whether a contract is concluded and on what terms should be determined by the respective national law which is applicable pursuant to the relevant conflict-of-law rules. [Am. 13]











(24)


In order to avoid a selective application of certain elements of the Common European Sales Law, which could disturb the balance between the rights and obligations of the parties and adversely affect the level of consumer protection, the choice should cover the Common European Sales Law as a whole and not only certain parts of it.










(25)


Where the United Nations Convention on Contracts for the International Sale of Goods would otherwise apply to the contract in question, the choice of the Common European Sales Law should imply an agreement of the contractual parties to exclude that Convention.










(26)


The rules of the Common European Sales Law should cover the matters of contract law that are of practical relevance during the life cycle of the types of contracts falling within the material and personal scope, particularly those entered into online. Apart from the rights and obligations of the parties and the remedies for non-performance, the Common European Sales Law should therefore govern pre-contractual information duties, the conclusion of a contract including formal requirements, the right of withdrawal and its consequences, avoidance of the contract resulting from a mistake, fraud, threats or unfair exploitation and the consequences of such avoidance, interpretation, the contents and effects of a contract, the assessment and consequences of unfairness of contract terms, restitution after avoidance and termination and the prescription and preclusion of rights. It should settle the sanctions available in case of the breach of all the obligations and duties arising under its application.










(27)


All the matters of a contractual or non-contractual nature that are not addressed in the Common European Sales Law are governed by the pre-existing rules of the national law outside the Common European Sales Law that is applicable under Regulations (EC) No 593/2008 and (EC) No 864/2007 or any other relevant conflict of law rule. These issues include legal personality, the invalidity of a contract arising from lack of capacity, illegality or immorality 
unless the reasons for such illegality or immorality are addressed in the Common European Sales Law
, the determination of the language of the contract, matters of non-discrimination, representation, plurality of debtors and creditors, change of parties including assignment, set-off and merger, property law including the transfer of ownership, intellectual property law, and the law of torts. Furthermore,

and
 the issue of whether concurrent contractual and non-contractual liability claims can be pursued together falls outside the scope of the Common European Sales Law. 
In the interest of clarity and legal certainty, the Common European Sales Law should clearly refer to those issues which are, and those which are not, addressed therein. [Am. 14]













(27a)






The unfair commercial practices referred to in Directive 2005/29/EC of the European Parliament and of the Council

 (6)

would be covered by the Common European Sales Law in so far as they overlap with rules on contract law, including in particular those relating to unfair commercial practices that can lead to avoidance of a contract due to mistake, fraud, threat or unfair exploitation or to remedies for breach of the duty to provide information. Unfair commercial practices other than those that overlap with rules on contract law should fall outside the scope of the Common European Sales Law. [Am. 15]











(28)


The Common European Sales Law should not govern any matters outside the remit of contract law. This Regulation should be without prejudice to the Union or national law in relation to any such matters. For example, information duties which are imposed for the protection of health and safety or environmental reasons should remain outside the scope of the Common European Sales Law. This Regulation should further be without prejudice to the information requirements of Directive 2006/123/EC of the European Parliament and of the Council (7).










(29)



Once there is a valid agreement to use the Common European Sales Law, only the Common European Sales Law should govern the matters falling within its scope. The rules of the Common European Sales Law should be interpreted autonomously in accordance with the well-established principles on the interpretation of Union legislation. Questions concerning matters falling within the scope of the Common European Sales Law which are not expressly settled by it should be resolved only by interpretation of its rules without recourse to any other law. The rules of the Common European Sales Law should be interpreted on the basis of the underlying principles and objectives and all its provisions. [Am. 16]











(30)


Freedom of contract should be the guiding principle underlying the Common European Sales Law. Party autonomy should be restricted only where and to the extent that this is indispensable, in particular for reasons of consumer protection. Where such a necessity exists, the mandatory nature of the rules in question should be clearly indicated.










(31)


The 
general
 principle of good faith and fair dealing should provide guidance on the way parties have to cooperate. As some rules constitute specific manifestations of the general principle of good faith and fair dealing, they should take precedent over the general principle. The general principle should therefore not be used as a tool to amend the specific rights and obligations of parties as set out in the specific rules. The concrete requirements resulting from the 
general
 principle of good faith and fair dealing should depend, amongst others, on the relative level of expertise of the parties and should therefore be different in business-to-consumer transactions and in business-to-business transactions. In transactions between traders, good commercial practice in the specific situation concerned should be a relevant factor in this context. 
The general principle of good faith and fair dealing should set a standard of conduct which ensures an honest, transparent and fair relationship. While it precludes a party from exercising or relying on a right, remedy or defence which that party would otherwise have, the principle as such should not give rise to any general right to damages. Rules of the Common European Sales Law constituting specific manifestations of the general principle of good faith and fair dealing, such as avoidance for fraud or the non-performance of an obligation created by an implied term, can give rise to a right to damages, but only in very specific cases. [Am. 17]











(32)


The Common European Sales Law should aim at the preservation of a valid contract whenever possible and appropriate in view of the legitimate interests of the parties.










(33)


The Common European Sales Law should identify well-balanced solutions taking account the legitimate interests of the parties in designating and exercising the remedies available in the case of non-performance of the contract. In business-to-consumer contracts the system of remedies should reflect the fact that the non-conformity of goods, digital content or services falls within the trader's sphere of responsibility.










(34)


In order to enhance legal certainty by making the case-law of the Court of Justice of the European Union and of national courts on the interpretation of the Common European Sales Law or any other provision of this Regulation accessible to the public, the Commission should create a database comprising the final relevant decisions. With a view to making that task possible, the Member States should ensure that such national judgments are quickly communicated to the Commission. 
A database should be established which is easily accessible, fully systematised and easily searchable. In order to overcome problems relating to different approaches to judgments within the Union and to enable the database to be operated efficiently and economically, judgments should be communicated on the basis of a standard judgment summary which should accompany the judgment. It should be succinct, thus rendering it easily accessible. It should be divided into five sections which should set out the main elements of the judgment communicated, namely: the issue and the relevant Common European Sales Law article; a brief summary of the facts; a short summary of the main arguments; the decision; and the reasons for the decision, clearly stating the principle decided. [Am. 18]













(34a)






A commentary on the Common European Sales Law could be a valuable tool, as it would provide clarity and guidance on that law. Such a commentary should provide a clear and comprehensive exegesis of the articles of the Common European Sales Law together, where appropriate, with an explanation of the policy choices which underpin specific articles. A clear explanation of such choices would enable courts across the Member States to interpret and apply properly the Common European Sales Law, as well as enabling them to fill any gaps. As such, it will facilitate the development of a consistent, uniform application of the Common European Sales Law. The Commission should explore the possibilities of providing for such a commentary. [Am. 19]













(34b)






An additional obstacle to cross-border trade is the lack of access to efficient and inexpensive redress mechanisms. Therefore, a consumer and a trader concluding a contract on the basis of the Common European Sales Law should consider submitting disputes arising from that contract to an existing alternative dispute resolution entity within the meaning of point (h) of Article 4(1) of Directive 2013/11/EU of the European Parliament and of the Council

 (8)

. This should be entirely without prejudice to the possibility for the parties to initiate proceedings before the competent courts without first having recourse to alternative dispute resolution. [Am. 20]













(34c)






To help facilitate the use of the Common European Sales Law, the Commission should work towards the development of European model contract terms with the assistance of a working group, composed mainly of groups representing consumers and businesses and supported by academics and practitioners. Such model contract terms could usefully complement the Common Sales Law rules when describing the specific features of a given contract, and should take into account the particularities of relevant commercial sectors. They should respond to stakeholders' needs and draw lessons from the initial practical experience of the use of the Common European Sales Law. The model contract terms should be made available to the public as they would provide added value to traders who choose to conclude cross-border contracts using the Common European Sales Law. In order for those model contract terms to effectively accompany the Common European Sales Law, the Commission's work should start as soon as possible. [Am. 21]











(35)


It is also appropriate to review the functioning of the Common European Sales Law or any other provision of this Regulation after five years of operation. The review should take into account, amongst other things, the need to extend

include
 further the scope in relation to business-to-business contracts

rules relating to retention of title clauses
, market and technological developments in respect of digital content and future developments of the Union acquis. 
Particular consideration should be given, in addition, to the question whether the limitation to distance contracts, and in particular online contracts, remains appropriate or whether a wider scope, including on-premises contracts, may be feasible. [Am. 22]











(36)


Since the objective of this Regulation, namely to contribute to the proper functioning of the internal market by making available a uniform set of contract law rules that can be used for cross-border transactions throughout the Union, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.










(37)


This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and specifically Articles 16, 38 and 47 thereof,




HAVE ADOPTED THIS REGULATION:


Table of contents

 (*1)


[Am. 23]



Title I




General provisions [Am. 24]



Part -I: Application of the instrument [Am. 25]

Article 1
Objective and subject matter
1.   The purpose of this Regulation is to improve the conditions for the establishment and the functioning of the internal market by making available
, within the legal order of each Member State,
 a uniform set of contract law rules as set out in Title II (‘the Common European Sales Law’). These rules can be used for cross-border transactions for the sale of goods, for the supply of digital content and for related services 
which are conducted at a distance, in particular online,
 where the parties to a contract agree to do so. [Am. 26]

2.   This Regulation enables traders
, in particular small or medium-sized enterprises (‘SMEs’),
 to rely on a common set of rules and use the same contract terms for all their cross-border transactions thereby reducing unnecessary costs while providing a high degree of legal certainty. [Am. 27]

3.   In relation to contracts between traders and consumers, this Regulation comprises a comprehensive set of consumer protection rules to ensure a high level of consumer protection, to enhance consumer confidence in the internal market and encourage consumers to shop across borders.
Article 2
Definitions
For the purpose of this Regulation, the following definitions shall apply:






(a)


‘contract’ means an agreement intended to give rise to obligations or other legal effects;











(b)




‘good faith and fair dealing’ means a standard of conduct characterised by honesty, openness and consideration for the interests of the other party to the transaction or relationship in question;
[Am. 28]












(c)




‘loss’ means economic loss and non-economic loss in the form of pain and suffering, excluding other forms of non-economic loss such as impairment of the quality of life and loss of enjoyment;
[Am. 29]












(d)




‘standard contract terms’ means contract terms which have been drafted in advance for several transactions involving different parties, and which have not been individually negotiated by the parties within the meaning of Article 7 of the Common European Sales Law;
[Am. 30]











(e)


‘trader’ means any natural or

person or any
 legal person
, irrespective of whether privately or publicly owned,
 who is acting for purposes relating to that person’s trade, business, craft, or profession 
in relation to contracts
; [Am. 31]











(f)


‘consumer’ means any natural person who is acting for purposes which are outside that person's trade, business, craft, or profession; 
where the contract is concluded for purposes partly within and partly outside that person's trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person shall also be considered to be a consumer; [Am. 32]













(fa)






‘service provider’ means a seller of goods or supplier of digital content who undertakes to provide a customer with a service related to those goods or that digital content; [Am. 33]













(fb)






‘customer’ means any person who purchases a related service; [Am. 34]













(fc)






‘creditor’ means a person who has a right to performance of an obligation, whether monetary or non-monetary, by another person, the debtor; [Am. 35]













(fd)






‘debtor’ means a person who has an obligation, whether monetary or non-monetary, to another person, the creditor; [Am. 36]













(fe)






‘good faith and fair dealing’ means a standard of conduct characterised by honesty, openness and, in so far as may be appropriate, reasonable consideration for the interests of the other party to the transaction or relationship in question; [Am. 37]













(ff)






‘standard contract terms’ means contract terms which have been drafted in advance for several transactions involving different parties, and which have not been individually negotiated by the parties within the meaning of Article 7 of the Common European Sales Law; [Am. 38]













(fg)






‘loss’ means economic loss and non-economic loss in the form of pain and suffering, excluding other forms of non-economic loss such as impairment of quality of life and loss of enjoyment; [Am. 39]











(g)


‘damages’ means a sum of money to which a person may be entitled as compensation for loss, injury or damage;












(ga)






‘mandatory rule’ means any provision the application of which the parties cannot exclude, or derogate from, or the effect of which they cannot vary; [Am. 40]













(gb)






‘obligation’ means a duty to perform which one party to a legal relationship owes to another party and which that other party is entitled to enforce as such; [Am. 41]













(gc)






‘express’ means, in relation to a statement or agreement, that it is made separately from other statements or agreements and by way of active and unequivocal conduct, including by ticking a box or activating a button or similar function; [Am. 42]











(h)


‘goods’ means any tangible movable items; it excludes:






(i)


electricity and natural gas; and










(ii)


water and other types of gas unless they are put up for sale in a limited volume or set quantity;














(i)


‘price’ means money that is due in exchange for goods sold, digital content supplied or a related service provided;










(j)


‘digital content’ means data which are produced and supplied in digital form, whether or not according to the buyer's specifications, including video, audio, picture or written digital content, digital games, software and digital content which makes it possible to personalise existing hardware or software; it excludes:






(i)


financial services, including online banking services;










(ii)


legal or financial advice provided in electronic form;










(iii)


electronic healthcare services;










(iv)


electronic communications services and networks, and associated facilities and services;










(v)


gambling;










(vi)


the creation of new digital content and the amendment of existing digital content by consumers or any other interaction with the creations of other users;














(k)


‘sales contract’ means any contract under which the trader (‘the seller’) transfers or undertakes to transfer the ownership of the goods to another person (‘the buyer’), and the buyer pays or undertakes to pay the price thereof; it includes a contract for the supply of goods to be manufactured or produced and excludes contracts for sale on execution or otherwise involving the exercise of public authority;










(l)


‘consumer sales contract’ means a sales contract where the seller is a trader and the buyer is a consumer;










(m)


‘related service’ means any service related to goods or digital content, such as 
storage or any other processing, including
 installation, maintenance, 
or
 repair or any other processing, provided by the seller of the goods or the supplier of the digital content under the sales contract, the contract for the supply of digital content or a separate related service contract which was concluded at the same time as the sales contract or the contract for the supply of digital content 
or provided for, even if only as an option, in the sales contract or in the contract for the supply of digital content
; it excludes: [Am. 44]







(i)


transport services,











(ii)




training services,
[Am. 45]











(iii)


telecommunications support services; and










(iv)


financial services
, including payment services and the issue of electronic money and insurance of any kind, whether for goods and digital content or otherwise
; [Am. 46]
















(n)




‘service provider’ means a seller of goods or supplier of digital content who undertakes to provide a customer with a service related to those goods or that digital content;
[Am. 47]












(o)




‘customer’ means any person who purchases a related service;
[Am. 48]











(p)


‘distance contract’ means any contract between the trader and the consumer 
or another trader
 under an organised distance sales scheme concluded without the simultaneous physical presence of the trader or, in case the trader is a legal person, a natural person representing the trader and the consumer 
or the other trader
, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded; [Am. 49]












(q)




‘off-premises contract’ means any contract between a trader and a consumer:








(i)




concluded in the simultaneous physical presence of the trader or, where the trader is a legal person, the natural person representing the trader and the consumer in a place which is not the trader's business premises, or concluded on the basis of an offer made by the consumer in the same circumstances; or












(ii)




concluded on the trader's business premises or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the trader's business premises in the simultaneous physical presence of the trader or, where the trader is a legal person, a natural person representing the trader and the consumer; or












(iii)




concluded during an excursion organised by the trader or, where the trader is a legal person, the natural person representing the trader with the aim or effect of promoting and selling goods or supplying digital content or related services to the consumer;
[Am. 50]
















(r)




‘business premises’ means:








(i)




any immovable retail premises where a trader carries out activity on a permanent basis, or












(ii)




any movable retail premises where a trader carries out activity on a usual basis;
[Am. 51]















(s)


‘commercial guarantee’ means any undertaking by the trader or a producer 
(the guarantor)
 to the consumer, in addition to 
his
 legal obligations under Article 106 in case of lack

obligation relating to the guarantee
 of conformity to reimburse the price paid or to replace or repair, or service goods or digital content

contents
 in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract; [Am. 52]













(sa)






‘repair’ means, in the event of lack of conformity, the act of processing non-conforming goods or digital content to bring them into conformity with the contract; [Am. 53]











(t)


‘durable medium’ means any medium which enables a party to store information addressed personally to that party in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;










(u)


‘public auction’ means a method of sale where goods or digital content are offered by the trader to the consumer who attends or is given the possibility to attend the auction in person, through a transparent, competitive bidding procedure run by an auctioneer and where the successful bidder is bound to purchase the goods or digital content;











(v)




‘mandatory rule’ means any provision the application of which the parties cannot exclude, or derogate from or the effect of which they cannot vary;
[Am. 54]












(w)




‘creditor’ means a person who has a right to performance of an obligation, whether monetary or non-monetary, by another person, the debtor;
[Am. 55]












(x)




‘debtor’ means a person who has an obligation, whether monetary or non-monetary, to another person, the creditor;
[Am. 56]












(y)




‘obligation’ means a duty to perform which one party to a legal relationship owes to another party.
[Am. 57]













(ya)






‘free of charge’ means free of the costs necessarily incurred in order to bring the goods into conformity, particularly the cost of postage, labour and materials. [Am. 58]





Article 3
Optional nature of the Common European Sales Law
The parties may agree
, subject to the requirements laid down in Articles 8 and 9,
 that the Common European Sales Law governs their cross-border contracts for the sale of goods, for the supply of digital content and for the provision of related services within the territorial, material and personal scope as set out in Articles 4 to 7. [Am. 59]

Article 4
Cross-border contracts
1.   The Common European Sales Law may be used for 
distance contracts which are
 cross-border contracts. [Am. 60]

2.   For the purposes of this Regulation, a contract between traders is a cross-border contract if the parties have their habitual residence in different countries of which at least one is a Member State.
3.   For the purposes of this Regulation, a contract between a trader and a consumer is a cross-border contract if:






(a)


either the address indicated by the consumer, the delivery address for goods or the billing address are located in a country other than the country of the trader's habitual residence; and










(b)


at least one of these countries is a Member State.




4.   For the purposes of this Regulation, the habitual residence of companies and other bodies, corporate or unincorporated, shall be the place of central administration. The habitual residence of a trader who is a natural person shall be that person's principal place of business.
5.   Where the contract is concluded in the course of the operations of a branch, agency or any other establishment of a trader, the place where the branch, agency or any other establishment is located shall be treated as the place of the trader's habitual residence.
6.   For the purpose of determining whether a contract is a cross-border contract the relevant point in time is the time of the agreement on the use of the Common European Sales Law.
Article 5
Contracts for which the Common European Sales Law can be used
The Common European Sales Law may be used for 
distance contracts, including online contracts, which are
: [Am. 61]







(a)


sales contracts;










(b)


contracts for the supply of digital content whether or not supplied on a tangible medium 
or through any other means,
 which can be stored, processed or accessed, and re-used by the user, irrespective of whether the digital content is supplied in exchange for the payment of a price 
or in exchange for a counter-performance other than the payment of a price, or is not supplied in exchange for any other counter-performance
; [Am. 62]











(c)


related service contracts, irrespective of whether a separate price was agreed for the related service.




Article 6

Exclusion of mixed-purpose

Linked
 contracts and contracts linked to a consumer credit

mixed-purpose contracts [Am. 63]

1.   The Common European Sales Law may not

also
 be used for mixed-purpose contracts including









a)






cases where a contract governed by the Common European Sales Law is linked to a contract other than a sales contract, a contract for the supply of digital content or a related service contract, or














(b)






cases where a contract includes
 any elements other than the sale of goods, the supply of digital content and

or
 the provision of related services within the meaning of Article 5
, provided those elements are divisible and their price can be apportioned
. [Am. 64]







1a.
   
In the cases referred to in point (a) of paragraph 1, the linked contract shall be governed by the otherwise applicable law. [Am. 65]



1b.
   
In the cases referred to in point (a) of paragraph 1, and










(a)






where, in the context of the contract governed by the Common European Sales Law, either of the parties exercises any right, remedy or defence, or that contract is invalid or not binding, the national law applicable to the linked contract shall determine the effects on the linked contract; [Am. 66]













(b)






where, in the context of the linked contract, either of the parties exercises any right, remedy or defence, or that contract is invalid or not binding under the national law applicable to that contract, the obligations of the parties under the contract governed by the Common European Sales Law shall be unaffected unless a party would not have concluded that contract governed by the Common European Sales Law but for the linked contract, or would have done so only on fundamentally different contract terms, in which case that party shall be entitled to terminate the contract governed by the Common European Sales Law. [Am. 67]







1c.
   
In the cases referred to in point (b) in paragraph 1, the other elements included in the contract shall be deemed to have been agreed upon under a linked contract. [Am. 68]


2.   The Common European Sales Law may not be used for contracts between a trader and a consumer where the trader grants or promises to grant to the consumer credit in the form of a deferred payment, loan or other similar financial accommodation. The Common European Sales Law may be used for contracts between a trader and a consumer where goods, digital content or related services of the same kind are supplied on a continuing basis and the consumer pays for such goods, digital content or related services for the duration of the supply by means of instalments.
[Am. 69]

Article 7
Parties to the contract
1.   The Common European Sales Law may be used only if the seller of goods or the supplier of digital content is a trader. Where all the parties to a contract are traders, the Common European Sales Law may be used if at least one of those parties is a small or medium-sized enterprise (‘SME’).


2.   For the purposes of this Regulation, an SME is a trader which








(a)




employs fewer than 250 persons; and












(b)




has an annual turnover not exceeding EUR 50 million or an annual balance sheet total not exceeding EUR 43 million, or, for an SME which has its habitual residence in a Member State whose currency is not the euro or in a third country, the equivalent amounts in the currency of that Member State or third country.
[Am. 70]





Article 8
Agreement on the use of the Common European Sales Law
1.   The use of the Common European Sales Law requires an agreement of the parties to that effect. The existence of such an agreement and its validity shall be determined on the basis of paragraphs 2 and 3 of this Article and Article 9, as well as the relevant provisions in the Common European Sales Law.
2.   In relations between a trader and a consumer the agreement on the use of the Common European Sales Law shall be valid only if the consumer's consent is given by an explicit statement which is separate from the statement indicating the agreement to conclude a contract 
and if the requirements under Article 9 are fulfilled
. The trader shall provide the consumer with a confirmation of that agreement on a durable medium. [Am. 71]

3.   In relations between a trader and a consumer the Common European Sales Law may not be chosen partially, but only in its entirety. 
In relations between traders, the Common European Sales Law may be chosen partially, provided that exclusion of the respective provisions is not prohibited therein. [Am. 72]

Article 9
Standard Information Notice in contracts between a trader and a consumer
1.   In addition to the pre-contractual information duties laid down in the Common European Sales Law, in relations between a trader and a consumer the trader shall draw the consumer's attention to the intended application of the Common European Sales Law before the agreement by providing the consumer with the information notice in Annex in a prominent manner. Where the agreement to use the Common European Sales Law is concluded by telephone or by any other means that do not make it possible to provide the consumer with the information notice, or where the trader has failed to provide the information notice, the consumer shall not be bound by the agreement until the consumer has received the confirmation referred to in Article 8(2) accompanied by the information notice and has expressly consented subsequently to the use of the Common European Sales Law.
2.   The information notice referred to in paragraph 1 shall, if given in electronic form, contain a hyperlink or, in all other circumstances, include the indication of a website through which the text of the Common European Sales Law can be obtained free of charge.
Article 10
Penalties for breach of specific requirements
Member States shall lay down penalties for breaches by traders in relations with consumers of the requirements set out in Articles 8 and 9 and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided shall be effective, proportionate and dissuasive. Member States shall notify the relevant provisions to the Commission no later than … (*2) and shall notify any subsequent changes as soon as possible.
Article 11
Consequences of the use of the Common European Sales Law


1.
   Where the parties have validly agreed to use the Common European Sales Law for a contract, only the Common European Sales Law shall govern the matters addressed in its rules. Provided that

, instead of
 the contract
-law regime that would, in the absence of such an agreement,

was actually concluded, the Common European Sales Law shall also govern the compliance with and remedies for failure to comply with the pre-contractual information duties

contract within the legal order determined as the applicable law
. [Am. 73]



1a.
   
Where the parties enter into negotiations, or otherwise take preparatory steps for the conclusion of a contract, with reference to the Common European Sales Law, the Common European Sales Law shall also govern compliance with and remedies for failure to comply with the pre-contractual duty to provide information, and other matters that are relevant prior to the conclusion of a contract.




The application of the Common European Sales Law as referred to in the first subparagraph shall be without prejudice to the law applicable under the relevant conflict-of-laws rules, where the trader has also made reference to other legal regimes. [Am. 74]



Article 11a




Matters covered by the Common European Sales Law




1.
   
The Common European Sales Law addresses in its rules the following matters:










(a)






pre-contractual duties to provide information;














(b)






the conclusion of a contract including formal requirements;














(c)






the right of withdrawal and its consequences;














(d)






avoidance of the contract as a result of mistake, fraud, threat or unfair exploitation and the consequences of such avoidance;














(e)






interpretation;














(f)






contents and effects, including those of the relevant contract;














(g)






the assessment and the effects of unfairness of contract terms;














(h)






the rights and obligations of the parties;














(i)






remedies for non-performance;














(j)






restitution after avoidance or termination or in the case of a non-binding contract;














(k)






prescription and preclusion of rights;














(l)






sanctions available in the event of breach of the obligations and duties arising under its application. [Am. 75]







2.
   
Matters not addressed in the Common European Sales law are governed by the relevant rules of the national law applicable under Regulations (EC) No 593/2008 and (EC) No 864/2007 or any other relevant conflict-of-law rule. Such matters include:










(a)






legal personality;














(b)






the invalidity of a contract arising from lack of capacity, illegality or immorality, except where the grounds giving rise to illegality or immorality are addressed in the Common European Sales Law;














(c)






determination of the language of the contract;














(d)






matters of non-discrimination;














(e)






representation;














(f)






plurality of debtors and creditors and change of parties, including assignment;














(g)






set-off and merger;














(h)






the creation, acquisition or transfer of immovable property or of rights in immovable property;














(i)






intellectual property law; and














(j)






the law of torts, including the issue of whether concurrent contractual and non-contractual liability claims can be pursued together. [Am. 76]







3.
   
This Article is without prejudice to any mandatory rules of a non-Member State which may be applicable according to the relevant rules governing the conflict of laws. [Am. 77]

Article 12
Information requirements resulting from the Services Directive
This Regulation is without prejudice to the information requirements laid down by national laws which transpose the provisions of Directive 2006/123/EC and which complement the information requirements laid down in the Common European Sales Law.
Article 13
Member States' options
A Member State may decide to make the Common European Sales Law available for:






(a)


contracts where the habitual residence of the traders or, in the case of a contract between a trader and a consumer, the habitual residence of the trader, the address indicated by the consumer, the delivery address for goods and the billing address, are located in that Member State; and/or










(b)


contracts where all the parties are traders but none of them is an SME within the meaning of Article 7(2).





Article 14


Communication of judgments applying this Regulation


1.   Member States shall ensure that final judgments of their courts applying the rules of this Regulation are communicated without undue delay to the Commission.


2.   The Commission shall set up a system which allows the information concerning the judgments referred to in paragraph 1 and relevant judgements of the Court of Justice of the European Union to be consulted. That system shall be accessible to the public.
[Am. 78]


Article 15


Review


1.   By … [4 years after the date of application of this Regulation], Member States shall provide the Commission with information relating to the application of this Regulation, in particular on the level of acceptance of the Common European Sales Law, the extent to which its provisions have given rise to litigation and on the state of play concerning differences in the level of consumer protection between the Common European Sales Law and national law. That information shall include a comprehensive overview of the case law of the national courts interpreting the provisions of the Common European Sales Law.


2.   By … [5 years after the date of application of this Regulation], the Commission shall present to the European Parliament, the Council and the Economic and Social Committee a detailed report reviewing the operation of this Regulation, and taking account of, amongst others, the need to extend the scope in relation to business-to-business contracts, market and technological developments in respect of digital content and future developments of the Union acquis.
[Am. 79]


Article 16


Entry into force and application


1.   This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.


2.   It shall apply from [6 months after its the entry into force].


This Regulation shall be binding in its entirety and directly applicable in the Member States.
[Am. 80]


ANNEX I


COMMON EUROPEAN SALES LAW


TABLE OF CONTENTS







Part I: Introductory provisions

36









Chapter 1: General principles and application

36









Section 1: General principles

36









Section 2: Application

36









Part II: Making a binding contract

42









Chapter 2: Pre-contractual information

42









Section 1: Pre-contractual information to be given by a trader dealing with a consumer

42









Section 2: Pre-contractual information to be given by a trader dealing with another trader

48









Section 3: Contracts to be concluded by electronic means

48









Section 4: Duty to ensure that information supplied is correct

50









Section 5: Remedies for breach of information duties

50









Chapter 3: Conclusion of contract

52









Chapter 4: Right to withdraw in distance and off-premises contracts between traders and consumers

56









Chapter 5: Defects in consent

62









Part III: Assessing what is in the contract

65









Chapter 6: Interpretation

65









Chapter 7: Contents and effects

67









Chapter 8: Unfair contract terms

72









Section 1: General provisions

72









Section 2: Unfair contract terms in contracts between a trader and a consumer

72









Section 3: Unfair contract terms in contracts between traders

76









Part IV: Obligations and remedies of the parties to a sales contract or a contract for the supply of digital content

78









Chapter 9: General provisions

78









Chapter 10: The seller's obligations

81









Section 1: General provisions

81









Section 2: Delivery

81









Section 3: Conformity of the goods and digital content

84









Chapter 11: The buyer’s remedies

87









Section 1: General provisions

87









Section 2: Cure by the seller

88









Section 3: Requiring performance

89









Section 4: Withholding performance of buyer’s obligations

90









Section 5: Termination

90









Section 6: Price reduction

92









Section 7: Requirements of examination and notification in a contract between traders

92









Chapter 12: The buyer's obligations

94









Section 1: General provisions

94









Section 2: Payment of the price 4

94









Section 3: Taking delivery

96









Chapter 13: The seller’s remedies

98









Section 1: General provisions

98









Section 2: Requiring performance

98









Section 3: Withholding performance of seller’s obligations

99









Section 4: Termination

99









Chapter 14: Passing of risk

101









Section 1: General provisions

101









Section 2:Passing of risk in consumer sales contracts

101









Section 3:Passing of risk in contracts between traders

102









Part V: Obligations and remedies of the parties to a related service contract

104









Chapter 15: Obligations and remedies of the parties

104




Section 1: Application of certain general rules on sales contracts







Section 2: Obligations of the service provider

104









Section 3: Obligations of the customer

106









Section 4: Remedies

106









Part VI: Damages and interest

109









Chapter 16: Damages and interest

109









Section 1: Damages

109









Section 2: Interest on late payments: general provisions

110









Section 3: Late payments by traders

111









Part VII: Restitution

114









Chapter 17: Restitution

114









Part VIII: Prescription

117









Chapter 18: Prescription

117









Section 1: General provision

117









Section 2: Periods of prescription and their commencement

117









Section 3: Extension of periods of prescription

118









Section 4: Renewal of periods of prescription

119









Section 5: Effects of prescription

119









Section 6: Modification by agreement

119









Appendix 1

119









Appendix 2

121




[Am. 81]



Title II




Provisions of the Common European Sales Law [Am. 82]

Part I
Introductory provisions
Chapter 1
General principles and application
Section 1
General principles
Article 1
Freedom of contract
1.   Parties are free to conclude a contract and to determine its contents, subject to any applicable mandatory rules.
2.   Parties may exclude the application of any of the provisions of the Common European Sales Law, or derogate from or vary their effects, unless otherwise stated in those provisions.
Article 2
Good faith and fair dealing
1.   Each party has a duty to act in accordance with good faith and fair dealing.
2.   Breach of this duty may preclude the party in breach from exercising or relying on a right, remedy or defence which that party would otherwise have, or may make the party liable for any loss thereby caused to the other party

but shall not give rise directly to remedies for non-performance of an obligation
. [Am. 83]

3.   The parties may not exclude the application of this Article or derogate from or vary its effects.
Article 3
Co-operation
The parties are obliged to co-operate with each other to the extent that this can be expected for the performance of their contractual obligations.
Section 2
Application
Article 4
Interpretation
1.   The Common European Sales Law is to be interpreted autonomously and in accordance with its objectives and the principles underlying it.
2.   Issues within the scope of the Common European Sales Law but not expressly settled by it are to be settled in accordance with the objectives and the principles underlying it and all its provisions, without recourse to the national law that would be applicable in the absence of an agreement to use the Common European Sales Law or to any other law.
3.   Where there is a general rule and a special rule applying to a particular situation within the scope of the general rule, the special rule prevails in any case of conflict.
Article 5
Reasonableness
1.   Reasonableness is to be objectively ascertained, having regard to the nature and purpose of the contract, to the circumstances of the case and to the usages and practices of the trades or professions involved.
2.   Any reference to what can be expected of or by a person, or in a particular situation, is a reference to what can reasonably be expected.
Article 6
No form required
Unless otherwise stated in the Common European Sales Law, a contract, statement or any other act which is governed by it need not be made in or evidenced by a particular form.
Article 7
Not individually negotiated contract terms
1.   A contract term is not individually negotiated if it has been supplied by one party and the other party has not been able to influence its content.
2.   Where one party supplies a selection of contract terms to the other party, a term will not be regarded as individually negotiated merely because the other party chooses that term from that selection.
3.   A party who claims that a contract term supplied as part of standard contract terms has since been individually negotiated bears the burden of proving that it has been.
4.   In a contract between a trader and a consumer, the trader bears the burden of proving that a contract term supplied by the trader has been individually negotiated.
5.   In a contract between a trader and a consumer, contract terms drafted by a third party are considered to have been supplied by the trader, unless the consumer introduced them to the contract.
Article 8
Termination of a contract
1.   To ‘terminate a contract’ means to bring to an end the rights and obligations of the parties under the contract with the exception of those arising under any contract term providing for the settlement of disputes or any other contract term which is to operate even after termination.
2.   Payments due and damages for any non-performance before the time of termination remain payable. Where the termination is for non-performance or for anticipated non-performance, the terminating party is also entitled to damages in lieu of the other party’s future performance.
3.   The effects of termination on the repayment of the price and the return of the goods or the digital content, and other restitutionary effects, are governed by the rules on restitution set out in Chapter 17.
Article 9

Mixed-purpose contracts

Contracts including the provision of related services [Am. 84]

1.   Where a contract provides both for the sale of goods or the supply of digital content and for the provision of a related service, the rules of Part IV apply to the obligations and remedies of the parties as seller and buyer of goods or digital content and the rules of Part V apply to the obligations and remedies of the parties as service provider and customer.
2.   Where, in a contract falling under paragraph 1, the obligations of the seller and the service provider under the contract are to be performed in separate parts or are otherwise divisible, then if there is a ground for termination for non-performance of a part to which a part of the price can be apportioned, the buyer and customer may terminate only in relation to that part.
3.   Paragraph 2 does not apply where the buyer and customer cannot be expected to accept performance of the other parts or the non-performance is such as to justify termination of the contract as a whole.
4.   Where the obligations of the seller and the service provider under the contract are not divisible or a part of the price cannot be apportioned, the buyer and the customer may terminate only if the non-performance is such as to justify termination of the contract as a whole.
Article 10
Notice
1.   This Article applies in relation to the giving of notice for any purpose under the rules of the Common European Sales Law and the contract.‘Notice’ includes the communication of any statement which is intended to have legal effect or to convey information for a legal purpose. [Am. 85]

2.   A notice may be given by any means appropriate to the circumstances.
3.   A notice becomes effective when it reaches the addressee, unless it provides for a delayed effect.
4.   A notice reaches the addressee:






(a)


when it is delivered to the addressee;










(b)


when it is delivered to the addressee’s place of business or, where there is no such place of business or the notice is addressed to a consumer, to the addressee’s habitual residence;










(c)


in the case of a notice transmitted by electronic mail or other individual communication, when it can be accessed by the addressee; or










(d)


when it is otherwise made available to the addressee at such a place and in such a way that the addressee could be expected to obtain access to it without undue delay.




The notice has reached the addressee after one of the requirements in point (a), (b), (c) or (d) is fulfilled, whichever is the earliest.
5.   A notice has no effect if a revocation of it reaches the addressee before or at the same time as the notice.
6.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of paragraphs 3 and 4 or derogate from or vary its effects.
Article 11
Computation of time

1.   The provisions of this Article apply in relation to the computation of time for any purpose under the Common European Sales Law.
[Am. 86]



1a.
   
Where a period expressed in days, weeks, months or years is to be calculated from a specified event, action or time, the day during which the event occurs, the action takes place or the specified time arrives shall not be considered as falling within the period in question. [Am. 87]

2.   Subject to paragraphs 4, 5 and 7:






(a)


a period expressed in days starts at the beginning of the first hour of the first day and ends with the expiry of the last hour of the last day of the period;










(b)


a period expressed in weeks, months or years starts at the beginning of the first hour of the first day of the period, and ends with the expiry of the last hour of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day from which the period runs; with the qualification that if, in a period expressed in months or in years, the day on which the period should expire does not occur in the last month, it ends with the expiry of the last hour of the last day of that month.





3.   Where a period expressed in days, weeks, months or years is to be calculated from a specified event, action or time the day during which the event occurs, the action takes place or the specified time arrives does not fall within the period in question.
[Am. 88]

4.   The periods concerned include Saturdays, Sundays and public holidays, save where these are expressly excepted or where the periods are expressed in working days.
5.   Where the last day of a period is a Saturday, Sunday or public holiday at the place where a prescribed act is to be done, the period ends with the expiry of the last hour of the following working day. This provision does not apply to periods calculated retroactively from a given date or event.

6.   Where a person sends another person a document which sets a period of time within which the addressee has to reply or take other action but does not state when the period is to begin, then, in the absence of indications to the contrary, the period is calculated from the moment the document reaches the addressee.
[Am. 89]

7.   For the purposes of this Article:






(a)


‘public holiday’ with reference to a Member State, or part of a Member State, of the European Union means any day designated as such for that Member State or part in a list published in the Official Journal of the European Union; and










(b)


‘working days’ means all days other than Saturdays, Sundays and public holidays.






7a.
   
Where a person sends another person a document which sets a period of time within which the addressee has to reply or take other action but does not state when that period is to begin, then, in the absence of indications to the contrary, the period shall be calculated from the moment the document reaches the addressee. [Am. 90]

Article 12
Unilateral statements or conduct
1.   A unilateral statement indicating intention is to be interpreted in the way in which the person to whom it is addressed could be expected to understand it.
2.   Where the person making the statement intended an expression used in it to have a particular meaning and the other party was aware, or could be expected to have been aware, of that intention, the expression is to be interpreted in the way intended by the person making the statement.

3.   Articles 59 to 65 apply with appropriate adaptations to the interpretation of unilateral statements indicating intention.
[Am. 91]


4.   The rules on defects in consent in Chapter 5 apply with appropriate adaptations to unilateral statements indicating intention.
[Am. 92]

5.   Any reference to a statement referred to in this Article includes a reference to conduct which can be regarded as the equivalent of a statement.
Part II
Making a binding contract
Chapter 2
Pre-contractual information
Section 1
Pre-contractual information to be given by a trader dealing with a consumer
Article 13
Duty to provide information when concluding a distance or off-premises contract
[Am. 93]

1.   A trader concluding a distance contract or off-premises contract has a duty to provide the following information to the consumer, in a clear and comprehensible manner before the contract is concluded or the consumer is bound by any offer:






(a)


the main characteristics of the goods, digital content or related services to be supplied, to an extent appropriate to the medium of communication and to the goods, digital content or related services;










(b)


the total price and additional charges and costs, in accordance with Article 14;










(c)


the identity and address of the trader, in accordance with Article 15;










(d)


the contract terms, in accordance with Article 16;










(e)


the rights of withdrawal, in accordance with Article 17;










(f)


where applicable, the existence and the conditions of the trader's after-sale customer assistance, after-sale services, commercial guarantees and complaints handling policy;










(g)


where applicable, the possibility of having recourse to an Alternative Dispute Resolution mechanism to which the trader is subject and the methods for having access to it;










(h)


where applicable, the functionality, including applicable technical protection measures, of digital content; and










(i)


where applicable, any relevant interoperability of digital content with hardware and software which the trader is aware of or can be expected to have been aware of. [Am. 94]





2.   The information provided, except for the addresses required by point (c) of paragraph 1, forms an integral part of the contract and shall not be altered unless the parties expressly agree otherwise.
3.   For a distance contract, the

The
 information required by this Article must:






(a)


be given or made available to the consumer in a way that is appropriate to the means of distance communication used;










(b)


be in plain and intelligible language; and










(c)


insofar as it is provided on a durable medium, be legible. [Am. 95]






4.   For an off-premises contract, the information required by this Article must:








(a)




be given on paper or, if the consumer agrees, on another durable medium; and












(b)




be legible and in plain, intelligible language.
[Am. 96]





5.   This Article does not apply where the contract is:






(a)


for the supply of foodstuffs, beverages or other goods which are intended for current consumption in the household, and which are physically supplied by a trader on frequent and regular rounds to the consumer's home, residence or workplace;











(b)




concluded by means of an automatic vending machine or automated commercial premises;
[Am. 97]












(c)




an off-premises contract if the price or, where multiple contracts were concluded at the same time, the total price of the contracts does not exceed EUR 50 or the equivalent sum in the currency agreed for the contract price.
[Am. 98]













(ca)






in accordance with the laws of Member States, established by a public office-holder who has a statutory obligation to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope. [Am. 99]





Article 14
Information about price and additional charges and costs
1.   The information to be provided under point (b) of Article 13(1) must include:






(a)


the total price of the goods, digital content or related services, inclusive of taxes, or where the nature of the goods, digital content or related services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated; and










(b)


where applicable, any additional freight, delivery or postal charges and any other costs or, where these cannot reasonably be calculated in advance, the fact that such additional charges and costs may be payable.




2.   In the case of a contract of indeterminate duration or a contract containing a subscription, the total price must include the total price per billing period. Where such contracts are charged at a fixed rate, the total price must include the total monthly price. Where the total price cannot be reasonably calculated in advance, the manner in which the price is to be calculated must be provided.
3.   Where applicable, the trader must inform the consumer of the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate.
Article 15
Information about the identity and address of the trader
The information to be provided under point (c) of Article 13(1) must include:






(a)


the identity of the trader, such as its trading name;










(b)


the geographical address at which the trader is established;










(c)


the telephone number, fax number and e-mail address of the trader, where available, to enable the consumer to contact the trader quickly and communicate with the trader efficiently;










(d)


where applicable, the identity and geographical address of any other trader on whose behalf the trader is acting; and










(e)


where different from the address given pursuant to points (b) and (d) of this Article, the geographical address of the trader, and where applicable that of the trader on whose behalf it is acting, where the consumer can address any complaints.




Article 16
Information about the contract terms
The information to be provided under point (d) of Article 13(1) must include:






(a)


the arrangements for payment, delivery of the goods, supply of the digital content or performance of the related services and the time by which the trader undertakes to deliver the goods, to supply the digital content or to perform the related services;










(b)


where applicable, the duration of the contract, the minimum duration of the consumer's obligations or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract; and










(c)


where applicable, the existence and conditions for deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;










(d)


where applicable, the existence of relevant codes of conduct and how copies of them can be obtained.




Article 17
Information about rights of withdrawal when concluding a distance or off-premises contract
[Am. 100]

1.   Where the consumer has a right of withdrawal under Chapter 4, the information to be provided under point (e) of Article 13(1) must include the conditions, time limit and procedures for exercising that right in accordance with Appendix 1, as well as the model withdrawal form set out in Appendix 2.
2.   Where applicable, the information to be provided under point (e) of Article 13(1) must include the fact that the consumer will have to bear the cost of returning the goods in case of withdrawal and, for distance contracts, that the consumer will have to bear the cost of returning the goods in the event of withdrawal if the goods by their nature cannot be normally returned by post.
3.   Where the consumer can exercise the right of withdrawal after having made a request for the provision of related services to begin during the withdrawal period, the information to be provided under point (e) of Article 13(1) must include the fact that the consumer would be liable to pay the trader the amount referred to in Article 45(5).
4.   The duty to provide the information required by paragraphs 1, 2 and 3 may be fulfilled by supplying the Model instructions on withdrawal set out in Appendix 1 to the consumer. The trader will be deemed to have fulfilled these information requirements if he has supplied these instructions to the consumer correctly filled in.
5.   Where a right of withdrawal is not provided for in accordance with points (c) to (i) of Article 40(2) and paragraph 3 of that Article, the information to be provided under point (e) of Article 13(1) must include a statement that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses the right of withdrawal.

Article 18


Off-premises contracts: additional information requirements and confirmation


1.   The trader must provide the consumer with a copy of the signed contract or the confirmation of the contract, including where applicable, the confirmation of the consumer's consent and acknowledgment as provided for in point (d) of Article 40(3) on paper or, if the consumer agrees, on a different durable medium.


2.   Where the consumer wants the provision of related services to begin during the withdrawal period provided for in Article 42(2), the trader must require that the consumer makes such an express request on a durable medium.
[Am. 101]

Article 19

Distance contracts: additional

Additional
 information and other requirements [Am. 102]

1.   When a trader makes a telephone call to a consumer, with a view to concluding a distance contract, the trader must, at the beginning of the conversation with the consumer, disclose its identity and, where applicable, the identity of the person on whose behalf it is making the call and the commercial purpose of the call.
2.   If the distance contract is concluded through a means of distance communication which allows limited space or time to display the information, the trader must provide at least the information referred to in paragraph 3 of this Article on that particular means prior to the conclusion of such a contract. The other information referred to in Article 13 shall be provided by the trader to the consumer in an appropriate way in accordance with Article 13(3).
3.   The information required under paragraph 2 is:






(a)


the main characteristics of the goods, digital content or related services, as required by point (a) of Article 13(1);










(b)


the identity of the trader, as required by point (a) of Article 15;










(c)


the total price, including all items referred to in point (b) of Article 13(1) and Article 14(1) and (2);










(d)


the right of withdrawal; and










(e)


where relevant, the duration of the contract, and if the contract is for an indefinite period, the requirements for terminating the contract, referred to in point (b) of Article 16.




4.   A distance contract concluded by telephone is valid only if the consumer has signed the offer or has sent his written consent indicating the agreement to conclude a contract. The trader must provide the consumer with a confirmation of that agreement on a durable medium.
5.   The trader must give the consumer a confirmation of the contract concluded, including where applicable, of the consent and acknowledgement of the consumer referred to in point (d) of Article 40(3), and all the information referred to in Article 13 on a durable medium. The trader must give that information in reasonable time after the conclusion of the distance contract, and at the latest at the time of the delivery of the goods or before the supply of digital content or the provision of the related service begins, unless the information has already been given to the consumer prior to the conclusion of the distance contract on a durable medium.
6.   Where the consumer wants the provision of related services to begin during the withdrawal period provided for in Article 42(2), the trader must require that the consumer makes an express request to that effect on a durable medium.

Article 20


Duty to provide information when concluding contracts other than distance and off-premises contracts


1.   In contracts other than distance and off-premises contracts, a trader has a duty to provide the following information to the consumer, in a clear and comprehensible manner before the contract is concluded or the consumer is bound by any offer, if that information is not already apparent from the context:








(a)




the main characteristics of the goods, digital content or related services to be supplied, to an extent appropriate to the medium of communication and to the goods, digital content or related services;












(b)




the total price and additional charges and costs, in accordance with Article 14(1);












(c)




the identity of the trader, such as the trader's trading name, the geographical address at which it is established and its telephone number;












(d)




the contract terms in accordance with points (a) and (b) of Article 16;












(e)




where applicable, the existence and the conditions of the trader's after-sale services, commercial guarantees and complaints handling policy;












(f)




where applicable, the functionality, including applicable technical protection measures of digital content; and












(g)




where applicable, any relevant interoperability of digital content with hardware and software which the trader is aware of or can be expected to have been aware of.






2.   This Article does not apply where the contract involves a day-to-day transaction and is performed immediately at the time of its conclusion.
[Am. 103]

Article 21
Burden of proof
The trader bears the burden of proof that it has provided the information required by this Section.
Article 22
Mandatory nature
The parties may not, to the detriment of the consumer, exclude the application of this Section or derogate from or vary its effects.
Section 2
Pre-contractual information to be given by a trader dealing with another trader
Article 23
Duty to disclose information about goods and related services
1.   Before the conclusion of a contract for the sale of goods, supply of digital content or provision of related services by a trader to another trader, the supplier has a duty to disclose by any appropriate means to the other trader any information concerning the main characteristics of the goods, digital content or related services to be supplied which the supplier has or can be expected to have and which it would be contrary to good faith and fair dealing not to disclose to the other party.
2.   In determining whether paragraph 1 requires the supplier to disclose any information, regard is to be had to all the circumstances, including:






(a)


whether the supplier had special expertise;










(b)


the cost to the supplier of acquiring the relevant information;










(c)


the ease with which the other trader could have acquired the information by other means;










(d)


the nature of the information;










(e)


the likely importance of the information to the other trader; and










(f)


good commercial practice in the situation concerned.




Section 3
Contracts concluded by electronic means
Article 24
Additional duties to provide information in distance contracts concluded by electronic means
1.   This Article applies where a trader provides the means for concluding a contract and where those means are electronic and do not involve the exclusive exchange of electronic mail or other individual communication.
2.   The trader must make available to the other party appropriate, effective and accessible technical means for identifying and correcting input errors before the other party makes or accepts an offer.
3.   The trader must provide information about the following matters before the other party makes or accepts an offer:






(a)


the technical steps to be taken in order to conclude the contract;










(b)


whether or not a contract document will be filed by the trader and whether it will be accessible;










(c)


the technical means for identifying and correcting input errors before the other party makes or accepts an offer;










(d)


the languages offered for the conclusion of the contract;










(e)


the contract terms 
on the basis of which the trader is prepared to conclude the contract
. [Am. 104]





4.   
Without prejudice to any stricter requirements for a trader dealing with a consumer under Section 1,

The

the
 trader must ensure that the contract terms referred to in point (e) of paragraph 3 are made available in alphabetical or other intelligible characters and on a durable medium by means of any support which permits reading, recording of the information contained in the text and its reproduction in tangible form. [Am. 105]

5.   The trader must acknowledge by electronic means and without undue delay the receipt of an offer or an acceptance sent by the other party. 
Such acknowledgement shall display the content of the offer or of the acceptance. [Am. 106]

Article 25
Additional requirements in distance contracts concluded by electronic means
1.   Where a distance contract which is concluded by electronic means would oblige the consumer to make a payment, the trader must make the consumer aware in a clear and prominent manner, and immediately before the consumer places the order, of the information required by point (a) of Article 13(1), Article 14(1) and (2), and point (b) of Article 16.
2.   The trader must ensure that the consumer, when placing the order, explicitly acknowledges that the order implies an obligation to pay. Where placing an order entails activating a button or a similar function, the button or similar function must be labelled in an easily legible manner only with the words ‘order with obligation to pay’ or similar unambiguous wording indicating that placing the order entails an obligation to make a payment to the trader. Where the trader has not complied with this paragraph, the consumer is not bound by the contract or order.
3.   The trader must indicate clearly and legibly on its trading website at the latest at the beginning of the ordering process whether any delivery restrictions apply and what means of payment are accepted.
Article 26
Burden of proof
In relations between a trader and a consumer, the trader bears the burden of proof that it has provided the information required by this Section.
Article 27
Mandatory nature
In relations between a trader and a consumer, the parties may not, to the detriment of the consumer, exclude the application of this Section or derogate from or vary its effects.
Section 4
Duty to ensure that information supplied is correct
Article 28
Duty to ensure that information supplied is correct
1.   A party who supplies information before or at the time a contract is concluded, whether in order to comply with the duties imposed by this Chapter or otherwise, has a duty to take reasonable care to ensure that the information supplied is correct and is not misleading.
2.   A party to whom incorrect or misleading information has been supplied in breach of the duty referred to in paragraph 1, and who reasonably relies on that information in concluding a contract with the party who supplied it, has the remedies set out in Article 29.
3.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Section 5
Remedies for breach of information duties
Article 29
Remedies for breach of information duties
1.   A party which has failed to comply with any duty imposed by this Chapter is liable 
under Chapter 16
 for any loss caused to the other party by such failure. [Am. 107]

2.   Where the trader has not complied with the information requirements relating to additional charges or other costs as referred to in Article 14 or on the costs of returning the goods as referred to in Article 17(2) the consumer is not liable to pay the additional charges and other costs.
3.   The remedies provided under this Article are without prejudice to any remedy which may be available under Article 42(2), Article 48 or Article 49.
4.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Chapter 3
Conclusion of contract
Article 30
Requirements for the conclusion of a contract
1.   A contract is concluded if:






(a)


the parties reach an agreement;










(b)


they intend the agreement to have legal effect; and










(c)


the agreement, supplemented if necessary by rules of the Common European Sales Law, has sufficient content and certainty to be given legal effect.




2.   Agreement is reached by acceptance of an offer. Acceptance may be made explicitly or by other statements or conduct.
[Am. 108]

3.   Whether the parties intend the agreement to have legal effect is to be determined from their statements and conduct.
4.   Where one of the parties makes agreement on some specific matter a requirement for the conclusion of a contract, there is no contract unless agreement on that matter has been reached.
Article 31
Offer
1.   A proposal is an offer if:






(a)


it is intended to result in a contract if it is accepted; and










(b)


it has sufficient content and certainty for there to be a contract. 
In relations between a trader and a consumer, an offer shall only be considered to have sufficient content and certainty if it contains an object, a quantity or duration, and a price. [Am. 109]





2.   An offer may be made to one or more specific persons.
3.   A proposal made to the public is not an offer, unless the circumstances indicate otherwise.
Article 32
Revocation of offer
1.   An offer may be revoked if the revocation reaches the offeree before the offeree has sent an acceptance or, in cases of acceptance by conduct, before the contract has been concluded.
2.   Where a proposal made to the public is an offer, it can be revoked by the same means as were used to make the offer.
3.   A revocation of an offer is ineffective if:






(a)


the offer indicates that it is irrevocable;










(b)


the offer states a fixed time period for its acceptance; or










(c)


it was otherwise reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.




Article 33
Rejection of offer
When a rejection of an offer reaches the offeror, the offer lapses.
Article 34
Acceptance
1.   Any form of statement or conduct by the offeree is an acceptance if it indicates assent to the offer.
2.   Silence or inactivity does not in itself constitute acceptance. 
In particular, in cases of unsolicited delivery of goods, supply of digital content or provision of related services, the absence of a response from the consumer shall not constitute acceptance. [Am. 110]

Article 35
Time of conclusion of the contract
1.   Where an acceptance is sent by the offeree the contract is concluded when the acceptance reaches the offeror.
2.   Where an offer is accepted by conduct, the contract is concluded when notice of the conduct reaches the offeror.
3.   Notwithstanding paragraph 2, where by virtue of the offer, of practices which the parties have established between themselves, or of a usage, the offeree may accept the offer by conduct without notice to the offeror, the contract is concluded when the offeree begins to act.
Article 36
Time limit for acceptance
1.   An acceptance of an offer is effective only if it reaches the offeror within any time limit stipulated in the offer by the offeror.
2.   Where no time limit has been fixed by the offeror the acceptance is effective only if it reaches the offeror within a reasonable time after the offer was made.
3.   Where an offer may be accepted by doing an act without notice to the offeror, the acceptance is effective only if the act is done within the time for acceptance fixed by the offeror or, if no such time is fixed, within a reasonable time.
Article 37
Late acceptance
1.   A late acceptance is effective as an acceptance if without undue delay the offeror informs the offeree that the offeror is treating it as an effective acceptance.
2.   Where a letter or other communication containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without undue delay, the offeror informs the offeree that the offer has lapsed.
Article 38
Modified acceptance
1.   A reply by the offeree which states or implies additional or different contract terms which materially alter the terms of the offer is a rejection and a new offer.
2.   Additional or different contract terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are presumed to alter the terms of the offer materially.
3.   A reply which gives a definite assent to an offer is an acceptance even if it states or implies additional or different contract terms, provided that these do not materially alter the terms of the offer. The additional or different terms then become part of the contract.
4.   A reply which states or implies additional or different contract terms is always a rejection of the offer if:






(a)


the offer expressly limits acceptance to the terms of the offer;










(b)


the offeror objects to the additional or different terms without undue delay; or










(c)


the offeree makes the acceptance conditional upon the offeror’s assent to the additional or different terms, and the assent does not reach the offeree within a reasonable time.






4a.
   
In relations between a trader and a consumer, a reply by the offeree which states or implies additional or different contract terms shall in any event constitute a rejection and a new offer. [Am. 111]

Article 39
Conflicting standard contract terms
1.   Where the parties have reached agreement except that the offer and acceptance refer to conflicting standard contract terms, a contract is nonetheless concluded. The standard contract terms are part of the contract to the extent that they are common in substance.
2.   Notwithstanding paragraph 1, no contract is concluded if one party:






(a)


has indicated in advance, explicitly, and not by way of standard contract terms, an intention not to be bound by a contract on the basis of paragraph 1; or










(b)


without undue delay, informs the other party of such an intention.




Chapter 4
Right to withdraw in distance and off-premises contracts between traders and consumers
[Am. 112]

Article 40
Right to withdraw
1.   During the period provided for in Article 42, the consumer has a right to withdraw from the contract without giving any reason, and at no cost to the consumer except as provided in Article 45, from:






(a)


a distance contract;










(b)


an off-premises contract, provided that the price or, where multiple contracts were concluded at the same time, the total price of the contracts exceeds EUR 50 or the equivalent sum in the currency agreed for the contract price at the time of the conclusion of the contract.




2.   Paragraph 1 does not apply to:






(a)


a contract concluded by means of an automatic vending machine or automated commercial premises;










(b)


a contract for the supply of foodstuffs, beverages or other goods which are intended for current consumption in the household and which are physically supplied by the trader on frequent and regular rounds to the consumer's home, residence or workplace;










(c)


a contract for the supply of goods or related services for which the price depends on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period;










(d)


a contract for the supply of goods or digital content which are made to the consumer’s specifications, or are clearly personalised;










(e)


a contract for the supply of goods which are liable to deteriorate or expire rapidly;










(f)


a contract for the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place after 30 days from the time of conclusion of the contract and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;










(g)


a contract for the sale of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;










(h)


a contract concluded at a public auction; and










(i)


a contract for catering or services related to leisure activities which provides for a specific date or period of performance.












(ia)






a contract which, in accordance with the laws of Member States, is established by a public office-holder who has a statutory obligation to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope. [Am. 113]





3.   Paragraph 1 does not apply in the following situations:






(a)


where the goods supplied were sealed, have been unsealed by the consumer and are not then suitable for return due to health protection or hygiene reasons;










(b)


where the goods supplied have, according to their nature, been inseparably mixed with other items after delivery;










(c)


where the goods supplied were sealed audio or video recordings or computer software and have been unsealed after delivery;










(d)


where the supply of digital content which is not supplied on a tangible medium has begun with the consumer's prior express consent and with the acknowledgement by the consumer of losing the right to withdraw;










(e)


the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance. Where on the occasion of such a visit the trader provides related services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal applies to those additional related services or goods.




4.   Where the consumer has made an offer which, if accepted, would lead to the conclusion of a contract from which there would be a right to withdraw under this Chapter, the consumer may withdraw the offer even if it would otherwise be irrevocable.
Article 41
Exercise of right to withdraw
1.   The consumer may exercise the right to withdraw at any time before the end of the period of withdrawal provided for in Article 42.
2.   The consumer exercises the right to withdraw by notice to the trader. For this purpose, the consumer may use either the Model withdrawal form set out in Appendix 2 or any other unequivocal statement setting out the decision to withdraw.
3.   Where the trader gives the consumer the option to withdraw electronically on its trading website, and the consumer does so, the trader has a duty to communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay. The trader is liable for any loss caused to the other party by a breach of this duty.
4.   A communication of withdrawal is timely if sent before the end of the withdrawal period.
5.   The consumer bears the burden of proof that the right of withdrawal has been exercised in accordance with this Article.
Article 42
Withdrawal period
1.   The withdrawal period expires after fourteen days from:






(a)


the day on which the consumer has taken delivery of the goods in the case of a sales contract, including a sales contract under which the seller also agrees to provide related services;










(b)


the day on which the consumer has taken delivery of the last item in the case of a contract for the sale of multiple goods ordered by the consumer in one order and delivered separately, including a contract under which the seller also agrees to provide related services;










(c)


the day on which the consumer has taken delivery of the last lot or piece in the case of a contract where the goods consist of multiple lots or pieces, including a contract under which the seller also agrees to provide related services;










(d)


the day on which the consumer has taken delivery of the first item where the contract is for regular delivery of goods during a defined period of time, including a contract under which the seller also agrees to provide related services;










(e)


the day of the conclusion of the contract in the case of a contract for related services concluded after the goods have been delivered;










(f)


the day when the consumer has taken delivery of the tangible medium in accordance with point (a) in the case of a contract for the supply of digital content where the digital content is supplied on a tangible medium;










(g)


the day of the conclusion of the contract in the case of a contract where the digital content is not supplied on a tangible medium.




2.   Where the trader has not provided the consumer with the information referred to in Article 17(1), the withdrawal period expires:






(a)


after one year from the end of the initial withdrawal period, as determined in accordance with paragraph 1; or










(b)


where the trader provides the consumer with the information required within one year from the end of the withdrawal period as determined in accordance with paragraph 1, after fourteen days from the day the consumer receives the information.




Article 43
Effects of withdrawal
Withdrawal terminates the obligations of both parties under the contract:






(a)


to perform the contract; or










(b)


to conclude the contract in cases where an offer was made by the consumer.




Article 44
Obligations of the trader in the event of withdrawal
1.   The trader must reimburse all payments received from the consumer, including, where applicable, the costs of delivery without undue delay and in any event not later than fourteen days from the day on which the trader is informed of the consumer's decision to withdraw from the contract in accordance with Article 41. The trader must carry out such reimbursement using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement.
2.   Notwithstanding paragraph 1, the trader is not required to reimburse the supplementary costs, if the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by the trader.
3.   In the case of a contract for the sale of goods, the trader may withhold the reimbursement until it has received the goods back, or the consumer has supplied evidence of having sent back the goods, whichever is earlier, unless the trader has offered to collect the goods.
4.   In the case of an off-premises contract where the goods have been delivered to the consumer’s home at the time of the conclusion of the contract, the trader must collect the goods at its own cost if the goods by their nature cannot be normally returned by post.
Article 45
Obligations of the consumer in the event of withdrawal
1.   The consumer must send back the goods or hand them over to the trader or to a person authorised by the trader without undue delay and in any event not later than fourteen days from the day on which the consumer communicates the decision to withdraw from the contract to the trader in accordance with Article 41, unless the trader has offered to collect the goods. This deadline is met if the consumer sends back the goods before the period of fourteen days has expired.
2.   The consumer must bear the direct costs of returning the goods, unless the trader has agreed to bear those costs or the trader failed to inform the consumer that the consumer has to bear them.
3.   The consumer is liable for any diminished value of the goods only where that results from handling of the goods in any way other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer is not liable for diminished value where the trader has not provided all the information about the right to withdraw in accordance with Article 17(1).
4.   Without prejudice to paragraph 3, the consumer is not liable to pay any compensation for the use of the goods during the withdrawal period.
5.   Where the consumer exercises the right of withdrawal after having made an express request for the provision of related services to begin during the withdrawal period, the consumer must pay to the trader an amount which is in proportion to what has been provided before the consumer exercised the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by the consumer to the trader must be calculated on the basis of the total price agreed in the contract. Where the total price is excessive, the proportionate amount must be calculated on the basis of the market value of what has been provided.
6.   The consumer is not liable for the cost for:






(a)


the provision of related services, in full or in part, during the withdrawal period, where:






(i)


the trader has failed to provide information in accordance with Article 17(1) and (3); or










(ii)


the consumer has not expressly requested performance to begin during the withdrawal period in accordance with Article 18(2) and Article 19(6);














(b)


for the supply, in full or in part, of digital content which is not supplied on a tangible medium where:






(i)


the consumer has not given prior express consent for the supply of digital content to begin before the end of the period of withdrawal referred to in Article 42(1);










(ii)


the consumer has not acknowledged losing the right of withdrawal when giving the consent; or










(iii)


the trader has failed to provide the confirmation in accordance with Article 18(1) and Article 19(5).








7.   Except as provided for in this Article, the consumer does not incur any liability through the exercise of the right of withdrawal.
Article 46
Ancillary contracts
1.   Where a consumer exercises the right of withdrawal from a distance or an off-premises contract in accordance with Articles 41 to 45, any ancillary contracts are automatically terminated at no cost to the consumer except as provided in paragraphs 2 and 3. For the purpose of this Article an ancillary contract means a contract by which a consumer acquires goods, digital content or related services in connexion to a distance contract or an off-premises contract and these goods, digital content or related services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.
2.   The provisions of Articles 43, 44 and 45 apply accordingly to ancillary contracts to the extent that those contracts are governed by the Common European Sales Law.
3.   For ancillary contracts which are not governed by the Common European Sales Law the applicable law governs the obligations of the parties in the event of withdrawal.
Article 47
Mandatory nature
The parties may not, to the detriment of the consumer, exclude the application of this Chapter or derogate from or vary its effects.
Chapter 5
Defects in consent


Article - 48




Scope




1.
   
This Chapter shall apply to the avoidance of a contract on account of defects in consent and similar defects.




2.
   
The rules laid down in this Chapter shall apply, with appropriate adaptations, to the avoidance of an offer, acceptance or other unilateral statement indicating intention, or equivalent conduct. [Am. 114]

Article 48
Mistake
1.   A party may avoid a contract for mistake of fact or law existing when the contract was concluded if:






(a)


the party, but for the mistake, would not have concluded the contract or would have done so only on fundamentally different contract terms and the other party knew or could be expected to have known this; and [Am. 115]











(b)


the other party:






(i)


caused the mistake; 
or [Am. 116]











(ii)


caused the contract to be concluded in mistake by failing to comply with any pre-contractual information duty under Chapter 2, Sections 1 to 4; 
or [Am. 117]











(iii)


knew or could be expected to have known of the mistake and caused the contract to be concluded in mistake by not pointing out the relevant information, provided that good faith and fair dealing would have required a party aware of the mistake to point it out; or










(iv)


made the same mistake.








2.   A party may not avoid a contract for mistake if the risk of the mistake was assumed, or in the circumstances should be borne, by that party.
3.   An inaccuracy in the expression or transmission of a statement is treated as a mistake of the person who made or sent the statement.
Article 49
Fraud
1.   A party may avoid a contract if the other party has induced the conclusion of the contract by fraudulent misrepresentation, whether by words or conduct, or fraudulent non-disclosure of any information which good faith and fair dealing, or any pre-contractual information duty, required that party to disclose.
2.   Misrepresentation is fraudulent if it is made with knowledge or belief that the representation is false, or recklessly as to whether it is true or false, and is intended to induce the recipient to make a mistake. Non-disclosure is fraudulent if it is intended to induce the person from whom the information is withheld to make a mistake.
3.   In determining whether good faith and fair dealing require a party to disclose particular information, regard should

is to
 be had to all the circumstances, including [Am. 118]:






(a)


whether the party had special expertise;










(b)


the cost to the party of acquiring the relevant information;










(c)


the ease with which the other party could have acquired the information by other means;










(d)


the nature of the information;










(e)


the apparent

likely
 importance of the information to the other party; and [Am. 119]











(f)


in contracts between traders good commercial practice in the situation concerned.




Article 50
Threats
A party may avoid a contract if the other party has induced the conclusion of the contract by the threat of wrongful, imminent and serious harm, or of a wrongful act.


Article 50a




Third parties




1.
   
Where a third party for whose acts a person is responsible or who, with that person's assent, is involved in the making of a contract:










(a)






causes a mistake, or knows of, or could be expected to know of, a mistake, or














(b)






is guilty of fraud or threats or unfair exploitation,








remedies under this Chapter shall be available as if the behaviour or knowledge had been that of the person with responsibility or giving assent.




2.
   
Where a third party for whose acts a person is not responsible and who does not have the person's assent to be involved in the making of a contract is guilty of fraud or threats, remedies under this Chapter shall be available if that person knew or could reasonably be expected to have known of the relevant facts, or at the time of avoidance did not act in reliance on the contract. [Am. 120]

Article 51
Unfair exploitation
A party may avoid a contract if, at the time of the conclusion of the contract:






(a)


that party was dependent on, or had a relationship of trust with, the other party, was in economic distress or had urgent needs, was improvident, ignorant, or inexperienced; and










(b)


the other party knew or could be expected to have known this and, in the light of the circumstances and purpose of the contract, exploited the first party’s situation by taking an excessive benefit or unfair advantage.




Article 52
Notice of avoidance
1.   Avoidance is effected by notice to the other party.
2.   A notice of avoidance is effective only if it is given within the following period after the avoiding party becomes aware of the relevant circumstances or becomes capable of acting freely:






(a)


six months in case of mistake; and










(b)


one year in case of fraud, threats and unfair exploitation.




Article 53
Confirmation
Where the party who has the right to avoid a contract under this Chapter confirms it, expressly or impliedly, after becoming aware of the relevant circumstances, or becoming capable of acting freely, that party may no longer avoid the contract.
Article 54
Effects of avoidance
1.   A contract which may be avoided is valid until avoided but, once avoided, is retrospectively invalid from the beginning.
2.   Where a ground of avoidance affects only certain contract terms, the effect of avoidance is limited to those terms unless it is unreasonable to uphold the remainder of the contract.
3.   The question whether either party has a right to the return of whatever has been transferred or supplied under a contract which has been avoided, or to a monetary equivalent, is regulated by the rules on restitution in Chapter 17.
Article 55
Damages for loss
A party who has the right to avoid a contract under this Chapter or who had such a right before it was lost by the effect of time limits or confirmation is entitled, whether or not the contract is avoided, to damages 
under Chapter 16
 from the other party for loss suffered as a result of the mistake, fraud, threats or unfair exploitation, provided that the other party knew or could be expected to have known of the relevant circumstances. [Am. 121]

Article 56
Exclusion or restriction of remedies
1.   Remedies for fraud, threats and unfair exploitation cannot be directly or indirectly excluded or restricted.
2.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, directly or indirectly exclude or restrict remedies for mistake.
Article 57
Choice of remedy
A party who is entitled to a remedy under this Chapter in circumstances which afford that party a remedy for non-performance may pursue either of those remedies.
Part III
Assessing what is in the contract
Chapter 6
Interpretation
Article 58
General rules on interpretation of contracts
1.   A contract is to be interpreted according to the common intention of the parties even if this differs from the normal meaning of the expressions used in it.
2.   Where one party intended an expression used in the contract 
or equivalent conduct
 to have a particular meaning, and at the time of the conclusion of the contract the other party was aware, or could be expected to have been aware, of that intention, the expression 
or equivalent conduct
 is to be interpreted in the way intended by the first party. [Am. 122]

3.   Unless otherwise provided in paragraphs 1 and 2, the contract is to be interpreted according to the meaning which a reasonable person would give to it.


3a.
   
Expressions used in a contract shall be interpreted in the light of the contract as a whole. [Am. 123]



3b.
   
The rules in this Chapter shall apply to the interpretation of an offer, acceptance or other unilateral statement indicating intention, or equivalent conduct, with appropriate adaptations. [Am. 124]

Article 59
Relevant matters
In interpreting a contract, regard may be had, in particular, to:






(a)


the circumstances in which it was concluded, including the preliminary negotiations; [Am. 125]











(b)


the conduct of the parties, even

prior, during and
 subsequent to the conclusion of the contract; [Am. 126]











(c)


the interpretation which has already been given by the parties

the parties have previously given
 to expressions which are identical to or similar to those used in the contract; [Am. 127]











(d)


usages which would be considered generally applicable by parties in the same situation;










(e)


practices which the parties have established between themselves;










(f)


the meaning commonly given to expressions in the branch of activity concerned;










(g)


the nature and purpose of the contract; and










(h)


good faith and fair dealing.





Article 60


Reference to contract as a whole


Expressions used in a contract are to be interpreted in the light of the contract as a whole.
[Am. 128]

Article 61
Language discrepancies
Where a contract document is in two or more language versions none of which is stated to be authoritative and where there is a discrepancy between the versions, the version in which the contract was originally drawn up is to be treated as the authoritative one.


Where a contract document in the consumer's national language has been used, that version shall be considered as the authoritative one. The parties may not, to the detriment of the consumer, exclude the application of this paragraph or derogate from or vary its effects. [Am. 129]



Article 61a




Preference for interpretation which gives effect to contract terms




An interpretation which gives effect to contract terms shall prevail over one which does not. [Am. 130]



Article 61b




Interpretation in favour of consumers




1.
   
Where there exists any doubt about the meaning of a contract term in a contract between a trader and a consumer, the interpretation most favourable to the consumer shall prevail unless the term in question was supplied by the consumer.




2.
   
The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from, or vary, its effects. [Am. 131]

Article 62

Preference for

Contract terms which are not
 individually negotiated contract terms
[Am. 132]



1.
   To the extent that there is an inconsistency, contract terms which have been individually negotiated prevail over those which have not been individually negotiated within the meaning of Article 7.


1a.
   
Where, despite Article 61b, there exists doubt about the meaning of a contract term which has not been individually negotiated within the meaning of Article 7, an interpretation of the term against the party who supplied it shall prevail. [Am. 133]


Article 63


Preference for interpretation which gives contract terms effect


An interpretation which renders the contract terms effective prevails over one which does not.
[Am. 134]


Article 64


Interpretation in favour of consumers


1.   Where there is doubt about the meaning of a contract term in a contract between a trader and a consumer, the interpretation most favourable to the consumer shall prevail unless the term was supplied by the consumer.


2.   The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
[Am. 135]


Article 65


Interpretation against supplier of a contract term


Where, in a contract which does not fall under Article 64, there is doubt about the meaning of a contract term which has not been individually negotiated within the meaning of Article 7, an interpretation of the term against the party who supplied it shall prevail.
[Am. 136]

Chapter 7
Contents and effects


Section 1




General provisions [Am. 137]

Article 66
Contract terms
The terms of the contract are derived from:






(a)


the agreement of the parties, subject to any mandatory rules of the Common European Sales Law;










(b)


any usage or practice by which parties are bound by virtue of Article 67;










(c)


any rule of the Common European Sales Law which applies in the absence of an agreement of the parties to the contrary; and










(d)


any contract term implied by virtue of Article 68.




Article 67
Usages and practices in contracts between traders
1.   In a contract between traders, the parties are bound by any usage which they have agreed should be applicable and by any practice they have established between themselves.
2.   The parties are bound by a usage which would be considered generally applicable by traders in the same situation as the parties.
3.   Usages and practices do not bind the parties to the extent to which they conflict with contract terms which have been individually negotiated

the agreement of the parties
 or any mandatory rules of the Common European Sales Law. [Am. 138]

Article 68
Contract terms which may be implied
1.   Where it is necessary to provide for a matter which is not explicitly regulated by the agreement of the parties, any usage or practice or any rule of the Common European Sales Law, an additional contract term may be implied, having regard in particular to:






(a)


the nature and purpose of the contract;










(b)


the circumstances in which the contract was concluded; and










(c)


good faith and fair dealing.




2.   Any contract term implied under paragraph 1 is, as far as possible, to be such as to give effect to what the parties would probably have agreed, had they provided for the matter. [Am. 139]

3.   Paragraph 1 does not apply if the parties have deliberately left a matter unregulated, accepting that one or other party would bear the risk.
Article 69
Contract terms derived from certain pre-contractual statements
1.   Where the trader
, or a person engaged in advertising or marketing for the trader,
 makes a statement before the contract is concluded, either to the other party or publicly, about the characteristics of what is to be supplied by that trader under the contract, the statement is incorporated as a term of the contract unless 
the trader shows that
:






(a)


the other party was aware, or could be expected to have been aware when the contract was concluded that the statement was incorrect or could not otherwise be relied on as such a term; or













(aa)






the statement had been corrected by the time of conclusion of the contract; or












(b)


the other party’s decision to conclude the contract could not have been influenced by the statement. [Am. 140]






2.   For the purposes of paragraph 1, a statement made by a person engaged in advertising or marketing for the trader is regarded as being made by the trader.
[Am. 141]

3.   Where the other party is a consumer then, for the purposes of paragraph 1, a public statement made by or on behalf of a producer or other person in earlier links of the chain of transactions leading to the contract is regarded as being made by the trader unless the trader 
shows that
, at the time of conclusion of the contract, 
the trader
 did not know and could not be expected to have known of it. [Am. 142]

4.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.

Article 70


Duty to raise awareness of not individually negotiated contract terms


1.   Contract terms supplied by one party and not individually negotiated within the meaning of Article 7 may be invoked against the other party only if the other party was aware of them, or if the party supplying them took reasonable steps to draw the other party's attention to them, before or when the contract was concluded.


2.   For the purposes of this Article, in relations between a trader and a consumer contract terms are not sufficiently brought to the consumer's attention by a mere reference to them in a contract document, even if the consumer signs the document.


3.   The parties may not exclude the application of this Article or derogate from or vary its effects.
[Am. 143]


Article 71


Additional payments in contracts between a trader and a consumer


1.   In a contract between a trader and a consumer, a contract term which obliges the consumer to make any payment in addition to the remuneration stated for the trader’s main contractual obligation, in particular where it has been incorporated by the use of default options which the consumer is required to reject in order to avoid the additional payment, is not binding on the consumer unless, before the consumer is bound by the contract, the consumer has expressly consented to the additional payment. If the consumer has made the additional payment, the consumer may recover it.


2.   The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
[Am. 144]

Article 72
Merger clauses
1.   Where a contract in writing includes a term stating that the document contains all contract terms (a merger clause), any prior statements, undertakings or agreements which are not contained in the document do not form part of the contract.
2.   Unless the contract otherwise provides, a merger clause does not prevent the parties’ prior statements from being used to interpret the contract.
3.   In a contract between a trader and a consumer, the consumer is not bound by a merger clause.
4.   The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Article 73
Determination of price
Where the amount of the price payable under a contract cannot be otherwise determined, the price payable is, in the absence of any indication to the contrary, the price normally charged in comparable circumstances at the time of the conclusion of the contract or, if no such price is available, a reasonable price.
Article 74
Unilateral determination by a party
1.   Where the price or any other contract term is to be determined by one party and that party’s determination is grossly unreasonable then the price normally charged or term normally used in comparable circumstances at the time of the conclusion of the contract or, if no such price or term is available, a reasonable price or a reasonable term is substituted.
2.   
In relations between a trader and a consumer,

The

the
 parties may not
, to the detriment of the consumer,
 exclude the application of this Article or derogate from or vary its effects. [Am. 145]



Section 2




Specific provisions governing contracts between traders and consumers [Am. 146]

Article 75
Determination by a third party
1.   Where a third party is to determine the price or any other contract term and cannot or will not do so, a court may, unless this is inconsistent with the contract terms, appoint another person to determine it.
2.   Where a price or other contract term determined by a third party is grossly unreasonable, the price normally charged or term normally used in comparable circumstances at the time of the conclusion of the contract or, if no such price is available, a reasonable price, or a reasonable term is substituted.
3.   For the purpose of paragraph 1 a ‘court’ includes an arbitral tribunal.
4.   In relations between a trader and a consumer the parties may not to the detriment of the consumer exclude the application of paragraph 2 or derogate from or vary its effects.
Article 76
Language
Where the language to be used for communications relating to the contract or the rights or obligations arising from it cannot be otherwise determined, the language to be used is that used for the conclusion of the contract.


Article 76a




Duty to raise awareness of contract terms which have not been individually negotiated [Am. 147]



1.
   
Contract terms supplied by a trader and not individually negotiated within the meaning of Article 7 may be invoked against a consumer only if the consumer was aware of them, or if the trader took reasonable steps to draw the consumer's attention to them, before or when the contract was concluded. [Am. 148]



2.
   
For the purposes of this Article, contract terms are not sufficiently brought to the consumer's attention unless they are:










(a)






presented in a way which is suitable to attract the attention of a consumer to their existence; and














(b)






given or made available to a consumer by a trader in a manner which provides the consumer with an opportunity to comprehend them before the contract is concluded. [Am. 149]







3.
   
Contract terms shall not be considered as having been sufficiently brought to the consumer's attention by a mere reference to them in a contract document, even if the consumer signs that document. [Am. 150]



4.
   
The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from, or vary, its effects. [Am. 151]



Article 76b




Additional payments in contracts between a trader and a consumer




1.
   
In a contract between a trader and a consumer, a contract term which obliges the consumer to make any payment in addition to the remuneration stated for the trader's main contractual obligation, in particular where it has been incorporated by the use of default options which the consumer is required to reject in order to avoid the additional payment, shall not be binding on the consumer unless, before the consumer is bound by the contract, the consumer has expressly consented to the additional payment. If the consumer makes the additional payment without having expressly consented to it, the consumer may recover it.




2.
   
The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from, or vary, its effects. [Am. 152]

Article 77
Contracts of indeterminate duration
1.   Where, in a case involving continuous or repeated performance of a contractual obligation, the contract terms do not stipulate when the contractual relationship is to end or provide for it to be terminated upon giving notice to that effect, it may be terminated by either party by giving a reasonable period of notice not exceeding two months.
2.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Article 78
Contract terms in favour of third parties
1.   The contracting parties may, by the contract, confer a right on a third party. The third party need not be in existence or identified at the time the contract is concluded but needs to be identifiable.
2.   The nature and content of the third party’s right are determined by the contract. The right may take the form of an exclusion or limitation of the third party’s liability to one of the contracting parties.
3.   When one of the contracting parties is bound to render a performance to the third party under the contract, then:






(a)


the third party has the same rights to performance and remedies for non-performance as if the contracting party was bound to render the performance under a contract with the third party; and










(b)


the contracting party who is bound may assert against the third party all defences which the contracting party could assert against the other party to the contract.




4.   The third party may reject a right conferred upon them by notice to either of the contracting parties, if that is done before it has been expressly or impliedly accepted. On such rejection, the right is treated as never having accrued to the third party.
5.   The contracting parties may remove or modify the contract term conferring the right if this is done before either of them has given the third party notice that the right has been conferred.
Chapter 8
Unfair contract terms
Section 1
General provisions
Article 79
Effects of unfair contract terms
1.   A contract term which is supplied by one party and which is unfair under Sections 2 and 3 of this Chapter is not binding on the other party.
2.   Where the contract can be maintained without the unfair contract term, the other contract terms remain binding.
Article 80
Exclusions from unfairness test
1.   Sections 2 and 3 do not apply to contract terms which reflect rules of the Common European Sales Law which would apply if the terms did not regulate the matter.

2.   Section 2 does not apply to the definition of the main subject matter of the contract, or to the appropriateness of the price to be paid in so far as the trader has complied with the duty of transparency set out in Article 82.
[Am. 153]

3.   Section 3 does not apply to the definition of the main subject matter of the contract or to the appropriateness of the price to be paid.
Article 81
Mandatory nature
The parties may not exclude the application of this Chapter or derogate from or vary its effects.
Section 2
Unfair contract terms in contracts between a trader and a consumer
Article 82
Duty of transparency in contract terms not individually negotiated
Where a trader supplies contract terms which have not been individually negotiated with the consumer within the meaning of Article 7, it has a duty to ensure that they are drafted and communicated in plain, 
clear and
 intelligible language. [Am. 154]

Article 83
Meaning of ‘unfair’ in contracts between a trader and a consumer
1.   In a contract between a trader and a consumer, a contract term supplied by the trader which has not been individually negotiated within the meaning of Article 7 is unfair for the purposes of this Section if it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer, contrary to good faith and fair dealing. [Am. 155]

2.   When assessing the unfairness of a contract term for the purposes of this Section, regard is to be had to:






(a)


whether the trader complied with the duty of transparency set out in Article 82;










(b)


the nature of what is to be provided under the contract;










(c)


the circumstances prevailing during the conclusion of the contract;












(ca)






whether it is of such a surprising nature that the consumer could not have expected the proposed term; [Am. 156]











(d)


to the other contract terms; and










(e)


to the terms of any other contract on which the contract depends.




Article 84
Contract terms which are always unfair
A contract term is always unfair for the purposes of this Section if its object or effect is to:






(a)


exclude or limit the liability of the trader for death or personal injury caused to the consumer through an act or omission of the trader or of someone acting on behalf of the trader;










(b)


exclude or limit the liability of the trader for any loss or damage to the consumer caused deliberately or as a result of gross negligence;












(ba)






inappropriately exclude or limit the remedies available to the consumer against the trader or a third party for non-performance by the trader of obligations under the contract; [Am. 157]











(c)


limit the trader's obligation to be bound by commitments undertaken by its authorised agents or make its commitments subject to compliance with a particular condition the fulfilment of which depends exclusively on the trader;












(ca)






restrict the evidence available to the consumer or impose on the consumer a burden of proof which legally lies with the trader; [Am. 158]











(d)


exclude or hinder the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to an arbitration system not foreseen generally in legal provisions that apply to contracts between a trader and a consumer;










(e)


confer exclusive jurisdiction for all disputes arising under the contract to a court for the place where the trader is domiciled unless the chosen court is also the court for the place where the consumer is domiciled;










(f)


give the trader the exclusive right to determine whether the goods, digital content or related services supplied are in conformity with the contract or gives the trader the exclusive right to interpret any contract term;












(fa)






enable a trader to alter contract terms unilaterally without a valid reason which is specified in the contract; this does not affect contract terms under which a trader reserves the right to alter unilaterally the terms of a contract of indeterminate duration, provided that the trader is required to inform the consumer of the alteration with reasonable notice, and that the consumer is free to terminate the contract at no cost to the consumer; [Am. 159]













(fb)






enable a trader to alter unilaterally, without a valid reason, any characteristics of the goods, digital content or related services to be provided or any other features of performance; [Am. 160]













(fc)






allow a trader to demand a higher price for his services than that which was fixed when the contract was concluded, unless the contract also allows for a price reduction if price change requirements have been agreed upon, the circumstances required for a price change are set out in the contract and are objectively justified and a price change cannot be brought about arbitrarily by the trader; [Am. 161]











(g)


provide that the consumer is bound by the contract when the trader is not;












(ga)






oblige a consumer to perform all his obligations under the contract where the trader fails to perform its own; [Am. 162]













(gb)






entitle a trader to withdraw from or terminate the contract within the meaning of Article 8 on a discretionary basis without giving the same right to the consumer, or entitle a trader to keep money paid for related services not yet supplied in the event that the trader withdraws from or terminates the contract; [Am. 163]











(h)


require the consumer to use a more formal method for terminating the contract within the meaning of Article 8 than was used for conclusion of the contract;












(ha)






impose an excessive burden on the consumer in order to terminate a contract of indeterminate duration; [Am. 164]











(i)


grant the trader a shorter notice period to terminate the contract than the one required of the consumer;










(j)


oblige the consumer to pay for goods, digital content or related services not actually delivered, supplied or rendered;










(k)


determine that non-individually negotiated contract terms within the meaning of Article 7 prevail or have preference over contract terms which have been individually negotiated.




Article 85
Contract terms which are presumed to be unfair
A contract term is presumed to be unfair for the purposes of this Section if its object or effect is to:







(a)




restrict the evidence available to the consumer or impose on the consumer a burden of proof which should legally lie with the trader;
[Am. 165]












(b)




inappropriately exclude or limit the remedies available to the consumer against the trader or a third party for non-performance by the trader of obligations under the contract;
[Am. 166]











(c)


inappropriately exclude or limit the right to set-off claims that the consumer may have against the trader against what the consumer may owe to the trader;










(d)


permit a trader to keep money paid by the consumer if the latter decides not to conclude the contract, or perform obligations under it, without providing for the consumer to receive compensation of an equivalent amount from the trader in the reverse situation;










(e)


require a consumer who fails to perform obligations under the contract to pay a disproportionately high amount by way of damages or a stipulated payment for non-performance;












(ea)






consider specific consumer behaviour equivalent to the issue or non-issue of a statement, unless the significance of the consumer's behaviour is specifically pointed out to him at the beginning of the period intended for this purpose and the consumer has an appropriate length of time in which to make an explicit statement; [Am. 167]












(f)




entitle a trader to withdraw from or terminate the contract within the meaning of Article 8 on a discretionary basis without giving the same right to the consumer, or entitle a trader to keep money paid for related services not yet supplied in the case where the trader withdraws from or terminates the contract;
[Am. 168]











(g)


enable a trader to terminate a contract of indeterminate duration without reasonable notice, except where there are serious grounds for doing so;










(h)


automatically extend a contract of fixed duration unless the consumer indicates otherwise, in cases where contract terms provide for an unreasonably early deadline for giving notice;











(i)




enable a trader to alter contract terms unilaterally without a valid reason which is specified in the contract; this does not affect contract terms under which a trader reserves the right to alter unilaterally the terms of a contract of indeterminate duration, provided that the trader is required to inform the consumer with reasonable notice, and that the consumer is free to terminate the contract at no cost to the consumer;
[Am. 169]












(j)




enable a trader to alter unilaterally without a valid reason any characteristics of the goods, digital content or related services to be provided or any other features of performance;
[Am. 170]











(k)


provide that the price of goods, digital content or related services is to be determined at the time of delivery or supply, or allow a trader to increase the price without giving the consumer the right to withdraw if the increased price is too high in relation to the price agreed at the conclusion of the contract; this does not affect price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described;[Am. 171]












(l)




oblige a consumer to perform all their obligations under the contract where the trader fails to perform its own;
[Am. 172]











(m)


allow a trader to transfer its rights and obligations under the contract without the consumer’s consent, unless it is to a subsidiary controlled by the trader, or as a result of a merger or a similar lawful company transaction, and such transfer is not likely to negatively affect any right of the consumer;










(n)


allow a trader, where what has been ordered is unavailable, to supply an equivalent without having expressly informed the consumer of this possibility and of the fact that the trader must bear the cost of returning what the consumer has received under the contract if the consumer exercises a right to reject performance
, and without the consumer having expressly required the supply of an equivalent
; [Am. 173]











(o)


allow a trader to reserve an unreasonably long or inadequately specified period to accept or refuse an offer;










(p)


allow a trader to reserve an unreasonably long or inadequately specified period to perform the obligations under the contract;










(q)


inappropriately exclude or limit the remedies available to the consumer against the trader or the defences available to the consumer against claims by the trader;










(r)


subject performance of obligations under the contract by the trader, or subject other beneficial effects of the contract for the consumer, to particular formalities that are not legally required and are unreasonable;










(s)


require from the consumer excessive advance payments or excessive guarantees of performance of obligations;










(t)


unjustifiably prevent the consumer from obtaining supplies or repairs from third party sources;










(u)


unjustifiably bundle the contract with another one with the trader, a subsidiary of the trader, or a third party, in a way that cannot be expected by the consumer;











(v)




impose an excessive burden on the consumer in order to terminate a contract of indeterminate duration;
[Am. 174]











(w)


make the initial contract period, or any renewal period, of a contract for the protracted provision of goods, digital content or related services longer than one year, unless the consumer may terminate the contract at any time with a termination period of no more than 30 days.




Section 3
Unfair contract terms in contracts between traders
Article 86
Meaning of ‘unfair’ in contracts between traders
1.   In a contract between traders, a contract term is unfair for the purposes of this Section only if:






(a)


it forms part of not individually negotiated terms within the meaning of Article 7; and










(b)


it is of such a nature that its use grossly deviates from good

customary
 commercial practice, contrary to good faith and fair dealing. [Am. 175]





2.   When assessing the unfairness of a contract term for the purposes of this Section, regard is to be had to:






(a)


the nature of what is to be provided under the contract;










(b)


the circumstances prevailing during the conclusion of the contract;










(c)


the other contract terms; and










(d)


the terms of any other contract on which the contract depends.




Part IV
Obligations and remedies of the parties to a sales contract or a contract for the supply of digital content
Chapter 9
General provisions
Article 87
Non-performance and fundamental non-performance
1.   Non-performance of an obligation is any failure to perform that obligation, whether or not the failure is excused, and includes:






(a)


non-delivery or delayed delivery of the goods;










(b)


non-supply or delayed supply of the digital content;










(c)


delivery of goods which are not in conformity with the contract;










(d)


supply of digital content which is not in conformity with the contract;










(e)


non-payment or late payment of the price; and










(f)


any other purported performance which is not in conformity with the contract.




2.   Non-performance of an obligation by one party is fundamental if:






(a)


it substantially deprives the other party of what that party was entitled to expect under the contract, unless at the time of conclusion of the contract the non-performing party did not foresee and could not be expected to have foreseen that result; or










(b)


it is of such a nature as to make it clear that the non-performing party’s future performance cannot be relied on.




Article 88
Excused non-performance
1.   A party’s non-performance of an obligation is excused if it is due to an impediment beyond that party’s control and if that party could not be expected to have taken the impediment into account at the time of the conclusion of the contract, or to have avoided or overcome the impediment or its consequences.
2.   Where the impediment is only temporary the non-performance is excused for the period during which the impediment exists. However, if the delay amounts to a fundamental non-performance, the other party may treat it as such.
3.   The party who is unable to perform has a duty to ensure that notice of the impediment and of its effect on the ability to perform reaches the other party without undue delay after the first party becomes, or could be expected to have become, aware of these circumstances. The other party is entitled to damages 
under Chapter 16
 for any loss resulting from the breach of this duty. [Am. 176]

Article 89
Change of circumstances
1.   A party must perform its obligations even if performance has become more onerous, whether because the cost of performance has increased or because the value of what is to be received in return has diminished.
Where performance becomes excessively onerous because of an exceptional change of circumstances, the parties have a duty to enter into negotiations with a view to adapting or terminating the contract.
2.   If the parties fail to reach an agreement within a reasonable time, then, upon request by either party a court may:






(a)


adapt the contract in order to bring it into accordance with what the parties would reasonably have agreed at the time of contracting if they had taken the change of circumstances into account; or










(b)


terminate the contract within the meaning of Article 8 at a date and on terms to be determined by the court.




3.   Paragraphs 1 and 2 apply only if:






(a)


the change of circumstances occurred after the time when the contract was concluded;










(b)


the party relying on the change of circumstances did not at that time take into account, and could not be expected to have taken into account, the possibility or scale of that change of circumstances; and










(c)


the aggrieved party
, relying on the change of circumstances,
 did not assume, and cannot reasonably be regarded as having assumed, the risk of that change of circumstances.[Am. 177]





4.   For the purpose of paragraphs 2 and 3 a ‘court’ includes an arbitral tribunal.
Article 90
Extended application of rules on payment and on goods or digital content not accepted
1.   Unless otherwise provided, the rules on payment of the price by the buyer in Chapter 12 apply with appropriate adaptations to other payments.
2.   Article 97 applies with appropriate adaptations to other cases where a person is left in possession of goods or digital content because of a failure by another person to take them when bound to do so.
Chapter 10
The seller's obligations
Section 1
General provisions
Article 91
Main obligations of the seller
The seller of goods or the supplier of digital content (in this part referred to as ‘the seller’) must:






(a)


deliver the goods or supply the digital content;










(b)




transfer or undertake to
 transfer the ownership of the goods, including the tangible medium on which the digital content is supplied; [Am. 178]











(c)


ensure that the goods or the digital content are in conformity with the contract;










(d)


ensure that the buyer has the right to use the digital content in accordance with the contract; and










(e)


deliver such documents representing or relating to the goods or documents relating to the digital content as may be required by the contract.






Article 91a




Retention of title




If a retention of title clause has been agreed, the seller shall not be obliged to transfer ownership of the goods until the buyer has fulfilled the obligation to pay the price as agreed. [Am. 179]

Article 92
Performance by a third party
1.   A seller may entrust performance to another person, unless personal performance by the seller is required by the contract terms.
2.   A seller who entrusts performance to another person remains responsible for performance.
3.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of paragraph (2) or derogate from or vary its effects.
Section 2
Delivery
Article 93
Place of delivery
1.   Where the place of delivery cannot be otherwise determined, it is:






(a)


in the case of a consumer sales contract or a contract 
between a trader and a consumer
 for the supply of digital content which is a distance or off-premises contract, or in which the seller has undertaken to arrange carriage to the buyer, the consumer’s place of residence at the time of the conclusion of the contract; [Am. 180]











(b)


in any other case,






(i)


where the contract of sale involves carriage of the goods by a carrier or series of carriers, the nearest collection point of the first carrier;










(ii)


where the contract does not involve carriage, the seller’s place of business at the time of conclusion of the contract.








2.   If the seller has more than one place of business, the place of business for the purposes of point (b) of paragraph 1 is that which has the closest relationship to the obligation to deliver.
Article 94
Method of delivery
1.   Unless agreed otherwise, the seller fulfils the obligation to deliver:






(a)


in the case of a consumer sales contract or a contract 
between a trader and a consumer
 for the supply of digital content which is a distance or off-premises contract or in which the seller has undertaken to arrange carriage to the buyer, by transferring the physical possession or control of the goods or the digital content to the consumer; [Am. 181]











(b)


in other cases in which the contract involves carriage of the goods by a carrier, by handing over the goods to the first carrier for transmission to the buyer and by handing over to the buyer any document necessary to enable the buyer to take over the goods from the carrier holding the goods; or










(c)


in cases that do not fall within points (a) or (b), by making the goods or the digital content, or where it is agreed that the seller need only deliver documents representing the goods, the documents, available to the buyer.




2.   In points (a) and (c) of paragraph 1, any reference to the consumer or the buyer includes a third party, not being the carrier, indicated by the consumer or the buyer in accordance with the contract.
Article 95
Time of delivery
1.   Where the time of delivery cannot be otherwise determined, the goods or the digital content must be delivered without undue delay

within a reasonable time
 after the conclusion of the contract

contract was concluded
. [Am. 182]

2.   In contracts between a trader and a consumer, unless agreed otherwise by the parties, the trader must deliver the goods or the digital content not later than 30 days from the conclusion of the contract.
Article 96
Seller’s obligations regarding carriage of the goods
1.   Where the contract requires the seller to arrange for carriage of the goods, the seller must conclude such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.
2.   Where the seller, in accordance with the contract, hands over the goods to a carrier and if the goods are not clearly identified as the goods to be supplied under the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods.
3.   Where the contract does not require the seller to effect insurance in respect of the carriage of the goods, the seller must, at the buyer’s request, provide the buyer with all available information necessary to enable the buyer to effect such insurance.
Article 97
Goods or digital content not accepted by the buyer
1.   A seller who is left in possession of the goods or the digital content because the buyer, when bound to do so, has failed to take delivery must take reasonable steps to protect and preserve them.
2.   The seller is discharged from the obligation to deliver if the seller:






(a)


deposits the goods or the digital content on reasonable terms with a third party to be held to the order of the buyer, and notifies the buyer of this; or










(b)


sells the goods or the digital content on reasonable terms after notice to the buyer, and pays the net proceeds to the buyer.




3.   The seller is entitled to be reimbursed or to retain out of the proceeds of sale any costs reasonably incurred.

Article 98


Effect on passing of risk


The effect of delivery on the passing of risk is regulated by Chapter 14.
[Am. 183]

Section 3
Conformity of the goods and digital content
Article 99
Conformity with the contract
1.   In order to conform with the contract, the goods or digital content must:






(a)


be of the quantity, quality and description required by the contract;










(b)


be contained or packaged in the manner required by the contract; and










(c)


be supplied along with any accessories, installation instructions or other instructions required by the contract.




2.   In order to conform with the contract the goods or digital content must also meet the requirements of Articles 100, 101 and 102, save to the extent that the parties have agreed otherwise.
3.   In a consumer sales contract 
between a trader and a consumer
, any agreement derogating from the requirements of Articles 100, 
101 and
 102 and 103 to the detriment of the consumer is valid only if, at the time of the conclusion of the contract, the consumer knew of the specific condition of the goods or the digital content and accepted the goods or the digital content as being in conformity with the contract when concluding it. [Am. 184]

4.   In a consumer sales contract, the parties may not, to the detriment of the consumer, exclude the application of paragraph 3 or derogate from or vary its effects.
Article 100
Criteria for conformity of the goods and digital content
The goods or digital content must:






(a)


be fit for any particular purpose made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for the buyer to rely, on the seller’s skill and judgement;










(b)


be fit for the purposes for which goods or digital content of the same description would ordinarily be used;










(c)


possess the qualities of goods or digital content which the seller held out to the buyer as a sample or model;










(d)


be contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods;










(e)


be supplied along with such accessories, installation instructions or other instructions as the buyer may expect to receive;










(f)


possess the qualities and performance capabilities indicated in any pre-contractual statement which forms part of the contract terms by virtue of Article 69; and










(g)


possess such qualities and performance capabilities as the buyer may expect
, including appearance and the absence of defects
. When determining what the consumer

buyer
 may expect of the digital content regard is to be had to whether or not the digital content was supplied in exchange for the payment of a price 
or any counter-performance
. [Am. 185]





Article 101
Incorrect installation under a consumer sales contract
1.   Where goods or digital content supplied under a consumer sales contract are incorrectly installed, any lack of conformity resulting from the incorrect installation is regarded as lack of conformity of the goods or the digital content if:






(a)


the goods or the digital content were installed by the seller or under the seller’s responsibility; or










(b)


the goods or the digital content were intended to be installed by the consumer and the incorrect installation was due to a shortcoming in the installation instructions.




2.   The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Article 102
Third party rights or claims
1.   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.
2.   As regards rights or claims based on intellectual property, subject to paragraphs 3 and 4, 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:






(a)


under the law of the state where the goods or digital content will be used according to the contract or, in the absence of such an agreement, under the law of the state of the buyer's place of business or in contracts between a trader and a consumer the consumer's place of residence indicated by the consumer at the time of the conclusion of the contract; and










(b)


which the seller knew of or could be expected to have known of at the time of the conclusion of the contract.




3.   In contracts between businesses, paragraph

Paragraph
 2 does not apply








(a)






in contracts between traders,
 where the buyer knew or could be expected to have known of the rights or claims based on intellectual property at the time of the conclusion of the contract.;





4.   
(b)

In

in
 contracts between a trader and a consumer, paragraph 2 does not apply where the consumer knew of the rights or claims based on intellectual property at the time of the conclusion of the contract. [Am. 186]

5.   In contracts between a trader and a consumer, the parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.

Article 103


Limitation on conformity of digital content


Digital content is not considered as not conforming to the contract for the sole reason that updated digital content has become available after the conclusion of the contract.
[Am. 187]

Article 104
Buyer’s knowledge of lack of conformity in a contract between traders

In a contract between traders, the

The
 seller is not liable for any lack of conformity of the goods if, at the time of the conclusion of the contract, the buyer knew or

of that lack of conformity. In a contract between traders, that also applies if the buyer
 could not have been unaware of the lack of conformity. [Am. 188]

Article 105
Relevant time for establishing conformity
1.   The seller is liable for any lack of conformity which exists at the time when the risk passes to the buyer under Chapter 14.
2.   In a consumer sales contract 
between a trader and a consumer
, any lack of conformity which becomes apparent within six months of the time when risk passes to the buyer is presumed to have existed at that time unless this is incompatible with the nature of the goods or digital content or with the nature of the lack of conformity. [Am. 189]

3.   In a case governed by point (a) of Article 101(1) any reference in paragraphs 1 or 2 of this Article to the time when risk passes to the buyer is to be read as a reference to the time when the installation is complete. In a case governed by point (b) of Article 101(1) it is to be read as a reference to the time when the consumer had reasonable time for the installation.
4.   Where the digital content must be subsequently updated by the trader, 
or where the trader supplies its components separately,
 the trader must ensure that the digital content remains in conformity with the contract throughout the duration of the contract. [Am. 190]

5.   In a contract between a trader and a consumer, the parties may not, to the detriment of a consumer, exclude the application of this Article or derogate from or vary its effect.
Chapter 11
The buyer’s remedies
Section 1
General provisions
Article 106
Overview of buyer’s remedies
1.   In the case of non-performance of an obligation by the seller, the buyer may
, where the specific requirements for the respective remedies are met,
 do any of the following: [Am. 191]







(a)


require performance, which includes specific performance, repair or replacement of the goods or digital content, under Section 3 of this Chapter;










(b)


withhold the buyer’s own performance under Section 4 of this Chapter;










(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.




2.   If the buyer is a trader:






(a)


the buyer’s rights to exercise any remedy except withholding of performance are subject to cure by the seller as set out in Section 2 of this Chapter; and










(b)


the buyer’s rights to rely on lack of conformity are subject to the requirements of examination and notification set out in Section 7 of this Chapter.




3.   If the buyer is a consumer:






(a)


the buyer’s rights are not subject to cure by the seller; and

, except where they relate to goods or digital content which are manufactured, produced or modified in accordance with the consumer's specifications or which are clearly personalised; or [Am. 192]











(b)


the requirements of examination and notification set out in Section 7 of this Chapter do not apply.




4.   If the seller’s non-performance is excused, the buyer may resort to any of the remedies referred to in paragraph 1 except requiring performance and damages.
5.   The buyer may not resort to any of the remedies referred to in paragraph 1 to the extent that the buyer caused the seller’s non-performance.
6.   Remedies which are not incompatible may be cumulated.
Article 107
Limitation of remedies for digital content not supplied in exchange for 
payment of
 a price 
or any other counter-performance




-
   
1. Where digital content is supplied in exchange for a counter-performance other than the payment of a price, the buyer may resort to any of the remedies referred to in Article 106(1) except for price reduction under point (d) thereof.




1.
   Where digital content is not supplied in exchange for the payment of a price

any counter-performance
, the buyer may not resort to the remedies referred to in points (a) to (d) of Article 106(1) . The buyer may only claim damages under point (e) of Article 106 (1) for loss or damage caused to the buyer's property, including hardware, software and data, by the lack of conformity of the supplied digital content, except for any gain of which the buyer has been deprived by that damage. [Am. 193]

Article 108
Mandatory nature
In a contract between a trader and a consumer, the parties may not, to the detriment of the consumer, exclude the application of this Chapter, or derogate from or vary its effect before the lack of conformity is brought to the trader's attention by the consumer.
Section 2
Cure by the seller
Article 109
Cure by the seller
1.   A seller who has tendered performance early and who has been notified that the performance is not in conformity with the contract may make a new and conforming tender if that can be done within the time allowed for performance.
2.   In cases not covered by paragraph 1 a seller who has tendered a performance which is not in conformity with the contract may, without undue delay on being notified of the lack of conformity, offer to cure it at its own expense.
3.   An offer to cure is not precluded by notice of termination.
4.   The buyer may refuse an offer to cure only if:








(-a)






where the buyer is a consumer, the buyer's remedies are not subject to cure by the seller under point (a) of Article 106(3); [Am. 194]











(a)


cure cannot be effected promptly and without significant inconvenience to the buyer;










(b)


the buyer has reason to believe that the seller’s future performance cannot be relied on; or










(c)


delay in performance would amount to a fundamental non-performance.




5.   The seller has a reasonable period of time to effect cure. 
In contracts between a trader and a consumer, that reasonable period shall not exceed 30 days. [Am. 195]

6.   The buyer may withhold performance pending cure, but the rights of the buyer which are inconsistent with allowing the seller a period of time to effect cure are suspended until that period has expired.
7.   Notwithstanding cure, the buyer retains the right to claim damages 
under Chapter 16
 for delay as well as for any harm caused or not prevented by the cure. [Am. 196]

Section 3
Requiring performance
Article 110
Requiring performance of seller’s obligations
1.   The buyer is entitled to require performance of the seller’s obligations
, which includes the remedying, free of charge, of a performance which is not in conformity with the contract
. [Am. 197]


2.   The performance which may be required includes the remedying free of charge of a performance which is not in conformity with the contract.

3.   Performance cannot be required where:






(a)


performance would be impossible or has become unlawful; or










(b)


the burden or expense of performance would be disproportionate to the benefit that the buyer would obtain.




Article 111
Consumer’s choice between repair and replacement
1.   Where, in a consumer sales contract, the trader is required to remedy a lack of conformity pursuant to Article 110(2)

110,
 the consumer may choose between repair and replacement unless the option chosen would be unlawful or impossible or, compared to the other option available, would impose costs on the seller that would be disproportionate taking into account: [Am. 198]







(a)


the value the goods would have if there were no lack of conformity;










(b)


the significance of the lack of conformity; and










(c)


whether the alternative remedy could be completed without significant inconvenience to the consumer.




2.   If the consumer has required the remedying of the lack of conformity by repair or replacement pursuant to paragraph 1, the consumer may resort to other remedies only if








(a)




the trader has not completed repair or replacement within a reasonable time, not exceeding 30 days;. However, the consumer may withhold performance during that time.













b)






the trader has implicitly or explicitly refused to remedy the lack of conformity;














(c)






the same fault has occurred again following repair or replacement. [Am. 199]





Article 112
Return of replaced item
1.   Where the seller has remedied the lack of conformity by replacement, the seller has a right and an obligation to take back the replaced item at the seller’s expense.
2.   The buyer is not liable to pay for any use made of the replaced item in the period prior to the replacement.
Section 4
Withholding performance of buyer’s obligations
Article 113
Right to withhold performance
1.   A buyer who is to perform at the same time as, or after, the seller performs has a right to withhold performance until the seller has tendered performance or has performed.
2.   A buyer who is to perform before the seller performs and who reasonably believes that there will be non-performance by the seller when the seller’s performance becomes due may withhold performance for as long as the reasonable belief continues.
3.   The performance which may be withheld under this Article is the whole or part of the performance to the extent justified by the non-performance. Where the seller's obligations are to be performed in separate parts or are otherwise divisible, the buyer may withhold performance only in relation to that part which has not been performed, unless the seller's non-performance is such as to justify withholding the buyer's performance as a whole.


3a.
   
In a contract between a trader and a consumer, the entire performance may be withheld, unless such withholding is disproportionate to the significance of the lack of conformity. [Am. 200]

Section 5
Termination
Article 114
Termination for non-performance
1.   A buyer may terminate the contract within the meaning of Article 8 if the seller’s non-performance under the contract is fundamental within the meaning of Article 87 (2).
2.   In a consumer sales contract and a contract for the supply of digital content between a trader and a consumer, where there is a non-performance because the goods do not conform to the contract, the consumer may terminate the contract unless the lack of conformity is insignificant.
Article 115
Termination for delay in delivery after notice fixing additional time for performance
1.   A buyer may terminate the contract in a case of delay in delivery which is not in itself fundamental if the buyer gives notice fixing an additional period of time of reasonable length for performance and the seller does not perform within that period.
2.   The additional period referred to in paragraph 1 is taken to be of reasonable length if the seller does not object to it without undue delay.
3.   Where the notice provides for automatic termination if the seller does not perform within the period fixed by the notice, termination takes effect after that period without further notice.
Article 116
Termination for anticipated non-performance
A buyer may terminate the contract before performance is due if the seller has declared, or it is otherwise clear, that there will be a non-performance, and if the non-performance would be such as to justify termination.
Article 117
Scope of right to terminate
1.   Where the seller’s obligations under the contract are to be performed in separate parts or are otherwise divisible, then if there is a ground for termination under this Section of a part to which a part of the price can be apportioned, the buyer may terminate only in relation to that part.
2.   Paragraph 1 does not apply if the buyer cannot be expected to accept performance of the other parts or the non-performance is such as to justify termination of the contract as a whole.
3.   Where the seller’s obligations under the contract are not divisible or a part of the price cannot be apportioned, the buyer may terminate only if the non-performance is such as to justify termination of the contract as a whole.
Article 118
Notice of termination
A right to terminate under this Section is exercised by notice to the seller.
Article 119
Loss of right to terminate
1.   The buyer loses the right to terminate under this Section if notice of termination is not given within a reasonable time

two months
 from when the right arose or the buyer became, or
, if the buyer is a trader that buyer
 could be expected to have become, aware of the non-performance, whichever is later.
2.   Paragraph 1 does not apply:







(a)




where the buyer is a consumer; or












(b)



where no performance at all has been tendered. [Am. 201]





Section 6
Price reduction
Article 120
Right to reduce price
1.   A buyer who accepts a performance not conforming to the contract may reduce the price. The reduction is to be proportionate to the decrease in the value of what was received in performance at the time performance was made compared to the value of what would have been received by a conforming performance.
2.   A buyer who is entitled to reduce the price under paragraph 1 and who has already paid a sum exceeding the reduced price may recover the excess from the seller.
3.   A buyer who reduces the price cannot also recover damages 
under Chapter 16
 for the loss thereby compensated but remains entitled to damages for any further loss suffered. [Am. 202]

Section 7
Requirements of examination and notification in a contract between traders
Article 121
Examination of the goods in contracts between traders
1.   In a contract between traders the buyer is expected to examine the goods 
or digital content
, or cause them to be examined, within as short a period as is reasonable not exceeding 14 days from the date of delivery of the goods, supply of digital content or provision of related services. [Am. 203]

2.   If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.
3.   If the goods are redirected in transit, or redispatched by the buyer before the buyer has had a reasonable opportunity to examine them, and at the time of the conclusion of the contract the seller knew or could be expected to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.
Article 122
Requirement of notification of lack of conformity in sales contracts between traders
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. 
However, the buyer may still reduce the price or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice. [Am. 204]

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 lack of conformity if the buyer does not give the seller notice of the lack of conformity within two years from the time at which the goods were actually handed over to the buyer in accordance with the contract.
3.   Where the parties have agreed that the goods must remain fit for a particular purpose or for their ordinary purpose during a fixed period of time, the period for giving notice under paragraph 2 does not expire before the end of the agreed period.
4.   Paragraph 2 does not apply in respect of the third party claims or rights referred to in Article 102.
5.   The buyer does not have to notify the seller that not all the goods have been delivered if the buyer has reason to believe that the remaining goods will be delivered.
6.   The seller is not entitled to rely on this Article if the lack of conformity relates to facts of which the seller knew or could be expected to have known and which the seller did not disclose to the buyer.
Chapter 12
The buyer's obligations
Section 1
General provisions
Article 123
Main obligations of the buyer
1.   The buyer must:






(a)


pay the price;










(b)


take delivery of the goods or the digital content; and










(c)


take over documents representing or relating to the goods or documents relating to digital content as may be required by the contract.




2.   
For contracts for the supply of digital content:










(a)





Point

point
 (a) of paragraph 1 does not apply to contracts for the supply of digital content where the digital content is not supplied in exchange for the payment of a price;












(b)






point (b) of paragraph 1 does not apply where the digital content is not supplied on a tangible medium
. [Am. 205]





Section 2
Payment of the price
Article 124
Means of payment
1.   Payment shall be made by the means of payment indicated by the contract terms or, if there is no such indication, by any means used in the ordinary course of business at the place of payment taking into account the nature of the transaction.
2.   A seller who accepts a cheque or other order to pay or a promise to pay is presumed to do so only on condition that it will be honoured. The seller may enforce the original obligation to pay if the order or promise is not honoured.
3.   The buyer’s original obligation is extinguished if the seller accepts a promise to pay from a third party with whom the seller has a pre-existing arrangement to accept the third party’s promise as a means of payment.
4.   In a contract between a trader and a consumer, the consumer is not liable, in respect of the use of a given means of payment, for fees that exceed the cost borne by the trader for the use of such means.
Article 125
Place of payment
1.   Where the place of payment cannot otherwise be determined it is the seller’s place of business at the time of conclusion of the contract.
2.   If the seller has more than one place of business, the place of payment is the place of business of the seller which has the closest relationship to the obligation to pay.
Article 126
Time of payment
1.   Payment of the price is due at the moment of delivery.
2.   The seller may reject an offer to pay before payment is due if it has a legitimate interest in so doing.
Article 127
Payment by a third party
1.   A buyer may entrust payment to another person. A buyer who entrusts payment to another person remains responsible for payment.
2.   The seller cannot refuse payment by a third party if:






(a)


the third party acts with the assent of the buyer; or










(b)


the third party has a legitimate interest in paying and the buyer has failed to pay or it is clear that the buyer will not pay at the time that payment is due.




3.   Payment by a third party in accordance with paragraphs 1 or 2 discharges the buyer from liability to the seller.
4.   Where the seller accepts payment by a third party in circumstances not covered by paragraphs 1 or 2 the buyer is discharged from liability to the seller but the seller is liable to the buyer 
under Chapter 16
 for any loss caused by that acceptance. [Am. 206]

Article 128
Imputation of payment
1.   Where a buyer has to make several payments to the seller and the payment made does not suffice to cover all of them, the buyer may at the time of payment notify the seller of the obligation to which the payment is to be imputed.
2.   If the buyer does not make a notification under paragraph 1 the seller may, by notifying the buyer within a reasonable time, impute the performance to one of the obligations.
3.   An imputation under paragraph 2 is not effective if it is to an obligation which is not yet due or is disputed.
4.   In the absence of an effective imputation by either party, the payment is imputed to that obligation which satisfies one of the following criteria in the sequence indicated:






(a)


the obligation which is due or is the first to fall due;










(b)


the obligation for which the seller has no or the least security;










(c)


the obligation which is the most burdensome for the buyer;










(d)


the obligation which arose first.




If none of those criteria applies, the payment is imputed proportionately to all the obligations.
5.   The payment may be imputed under paragraph 2, 3 or 4 to an obligation which is unenforceable as a result of prescription only if there is no other obligation to which the payment could be imputed in accordance with those paragraphs.
6.   In relation to any one obligation a payment by the buyer is to be imputed, first, to expenses, secondly, to interest, and thirdly, to principal, unless the seller makes a different imputation.
Section 3
Taking delivery
Article 129
Taking delivery
The buyer fulfils the obligation to take delivery by:






(a)


doing all the acts which could be expected in order to enable the seller to perform the obligation to deliver; and










(b)


taking over the goods, or the documents representing the goods or digital content, as required by the contract.




Article 130
Early delivery and delivery of wrong quantity
1.   If the seller delivers the goods or supplies the digital content before the time fixed, the buyer must take delivery unless the buyer has a legitimate interest in refusing to do so.
2.   If the seller delivers a quantity of goods or digital content less than that provided for in the contract the buyer must take delivery unless the buyer has a legitimate interest in refusing to do so.
3.   If the seller delivers a quantity of goods or digital content greater than that provided for by the contract, the buyer may retain or refuse the excess quantity.
4.   If the buyer retains the excess quantity it is treated as having been supplied under the contract and must be paid for at the contractual rate.
5.   In a consumer sales contract paragraph 4 does not apply if the buyer reasonably believes that the seller has delivered the excess quantity intentionally and without error, knowing that it had not been ordered.
6.   This Article does not apply to contracts for the supply of digital content where the digital content is not supplied in exchange for the payment of a price.
Chapter 13
The seller’s remedies
Section 1
General provisions
Article 131
Overview of seller's remedies
1.   In the case of a non-performance of an obligation by the buyer, the seller may
, where the specific criteria for the respective remedies are met,
 do any of the following: [Am. 207]







(a)


require performance under Section 2 of this Chapter;










(b)


withhold the seller’s own performance under Section 3 of this Chapter;










(c)


terminate the contract under Section 4 of this Chapter; and










(d)


claim interest on the price or damages under Chapter 16.




2.   If the buyer’s non-performance is excused, the seller may resort to any of the remedies referred to in paragraph 1 except requiring performance and damages. [Am. 208]

3.   The seller may not resort to any of the remedies referred to in paragraph 1 to the extent that the seller caused the buyer’s non-performance.
4.   Remedies which are not incompatible may be cumulated.
Section 2
Requiring performance
Article 132
Requiring performance of buyer’s obligations
1.   The seller is entitled to recover payment of the price when it is due, and to require performance of any other obligation undertaken by the buyer.
2.   Where the buyer has not yet taken over the goods or the digital content and it is clear that the buyer will be unwilling to receive performance, the seller may nonetheless require the buyer to take delivery, and may recover the price, unless the seller could have made a reasonable substitute transaction without significant effort or expense.
Section 3
Withholding performance of seller’s obligations
Article 133
Right to withhold performance
1.   A seller who is to perform at the same time as, or after, the buyer performs has a right to withhold performance until the buyer has tendered performance or has performed.
2.   A seller who is to perform before the buyer performs and who reasonably believes that there will be non-performance by the buyer when the buyer’s performance becomes due may withhold performance for as long as the reasonable belief continues. However, the right to withhold performance is lost if the buyer gives an adequate assurance of due performance or provides adequate security.
3.   The performance which may be withheld under this Article is the whole or part of the performance to the extent justified by the non-performance. Where the buyer's obligations are to be performed in separate parts or are otherwise divisible, the seller may withhold performance only in relation to that part which has not been performed, unless the buyer's non-performance is such as to justify withholding the seller's performance as a whole.
Section 4
Termination
Article 134
Termination for fundamental non-performance
A seller may terminate the contract within the meaning of Article 8 if the buyer’s non-performance under the contract is fundamental within the meaning of Article 87(2).
Article 135
Termination for delay after notice fixing additional time for performance
1.   A seller may terminate in a case of delay in performance which is not in itself fundamental if the seller gives a notice fixing an additional period of time of reasonable length for performance and the buyer does not perform within that period.
2.   The period is taken to be of reasonable length if the buyer does not object to it without undue delay. In relations between a trader and a consumer, the additional time for performance must not end before the 30 day period referred to Article 167(2).
3.   Where the notice provides for automatic termination if the buyer does not perform within the period fixed by the notice, termination takes effect after that period without further notice.
4.   In a consumer sales contract, the parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Article 136
Termination for anticipated non-performance
A seller may terminate the contract before performance is due if the buyer has declared, or it is otherwise clear, that there will be a non-performance, and if the non-performance would be fundamental.
Article 137
Scope of right to terminate
1.   Where the buyer’s obligations under the contract are to be performed in separate parts or are otherwise divisible, then if there is a ground for termination under this Section of a part which corresponds to a divisible part of the seller’s obligations, the seller may terminate only in relation to that part.
2.   Paragraph 1 does not apply if the non-performance is fundamental in relation to the contract as a whole.
3.   Where the buyer’s obligations under the contract are not to be performed in separate parts, the seller may terminate only if the non-performance is fundamental in relation to the contract as a whole.
Article 138
Notice of termination
A right to terminate the contract under this Section is exercised by notice to the buyer.
Article 139
Loss of right to terminate
1.   Where performance has been tendered late or a tendered performance otherwise does not conform to the contract the seller loses the right to terminate under this Section unless notice of termination is given within a reasonable time from when the seller has become, or could be expected to have become, aware of the tender or the lack of conformity.
2.   A seller loses a right to terminate by notice under Articles 136 unless the seller gives notice of termination within a reasonable time after the right has arisen.
3.   Where the buyer has not paid the price or has not performed in some other way which is fundamental, the seller retains the right to terminate.
Chapter 14
Passing of risk
Section 1
General provisions
Article 140
Effect of passing of risk
Loss of, or damage to, the goods or the digital content after the risk has passed to the buyer does not discharge the buyer from the obligation to pay the price, unless the loss or damage is due to an act or omission of the seller.
Article 141
Identification of goods or digital content to contract
The risk does not pass to the buyer until the goods or the digital content are clearly identified as the goods or digital content to be supplied under the contract, whether by the initial agreement, by notice given to the buyer or otherwise.
Section 2
Passing of risk in consumer sales contracts
Article 142
Passing of risk in a consumer sales contract
1.   In a consumer sales contract, the risk passes at the time when the consumer or a third party designated by the consumer, not being the carrier, has acquired the physical possession of the goods or the tangible medium on which the digital content is supplied.
2.   In a contract for the supply of digital content not supplied on a tangible medium, the risk passes at the time when the consumer or a third party designated by the consumer for this purpose has obtained the control of the digital content.

3.   Except where the contract is a distance or off-premises contract, paragraphs 1 and 2 do not apply where the consumer fails to perform the obligation to take over the goods or the digital content and the non-performance is not excused under Article 88. In this case, the risk passes at the time when the consumer, or the third party designated by the consumer, would have acquired the physical possession of the goods or obtained the control of the digital content if the obligation to take them over had been performed.
[Am. 209]

4.   Where the consumer arranges the carriage of the goods or the digital content supplied on a tangible medium and that choice was not offered by the trader, the risk passes when the goods or the digital content supplied on a tangible medium are handed over to the carrier, without prejudice to the rights of the consumer against the carrier.
5.   The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Section 3
Passing of risk in contracts between traders
Article 143

Time when risk passes

Passing of risk in contracts between traders [Am. 210]

1.   In a contract between traders the risk passes when the buyer takes delivery of the goods or digital content or the documents representing the goods.
2.   Paragraph 1 is subject to Articles 144, 145 and 146

If the goods or the digital content are placed at the buyer's disposal and the buyer is aware of this, the risk passes to the buyer at the time when the goods or digital content should have been taken over, unless the buyer was entitled to withhold taking of delivery pursuant to Article 113
.


If the goods or the digital content are placed at the buyer's disposal at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods or digital content are placed at the buyer's disposal at that place. [Am. 211]



2a.
   
In a contract of sale which involves the carriage of goods, regardless of whether the seller is authorised to retain documents controlling the disposition of the goods:










(a)






if the seller is not bound to hand over the goods at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract;














(b)






if the seller is bound to hand over the goods to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. [Am. 212]







2b.
   
Where goods are sold in transit the risk passes to the buyer as from the time when the goods were handed over to the first carrier or when the contract is concluded, depending on the circumstances. Risk does not pass to the buyer if, at the time of conclusion of the contract, the seller knew, or could be expected to have known, that the goods had been lost or damaged and did not disclose this to the buyer. [Am. 213]


Article 144


Goods placed at buyer’s disposal


1.   If the goods or the digital content are placed at the buyer’s disposal and the buyer is aware of this, the risk passes to the buyer at the time when the goods or digital content should have been taken over, unless the buyer was entitled to withhold taking of delivery pursuant to Article 113.


2.   If the goods or the digital content are placed at the buyer’s disposal at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods or digital content are placed at the buyer’s disposal at that place.
[Am. 214]


Article 145


Carriage of the goods


1.   This Article applies to a contract of sale which involves carriage of goods.


2.   If the seller is not bound to hand over the goods at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract.


3.   If the seller is bound to hand over the goods to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place.


4.   The fact that the seller is authorised to retain documents controlling the disposition of the goods does not affect the passing of the risk.
[Am. 215]


Article 146


Goods sold in transit


1.   This Article applies to a contract of sale which involves goods sold in transit.


2.   The risk passes to the buyer as from the time the goods were handed over to the first carrier. However, if the circumstances so indicate, the risk passes to the buyer when the contract is concluded.


3.   If at the time of the conclusion of the contract the seller knew or could be expected to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.
[Am. 216]

Part V
Obligations and remedies of the parties to a related service contract
Chapter 15
Obligations and remedies of the parties
Section 1
Application of certain general rules on sales contracts
Article 147
Application of certain general rules on sales contracts
1.   The rules in Chapter 9 apply for the purposes of this Part.
2.   Where a sales contract or a contract for the supply of digital content is terminated any related service contract is also terminated.
Section 2
Obligations of the service provider
Article 148
Obligation to achieve result and obligation of care and skill
1.   The service provider must achieve any specific result required by the contract.
2.   In the absence of any express or implied contractual obligation to achieve a specific result, the service provider must perform the related service with the care and skill which a reasonable service provider would exercise and in conformity with any statutory or other binding legal rules which are applicable to the related service.
3.   In determining the reasonable care and skill required of the service provider, regard is to be had, among other things, to:






(a)


the nature, the magnitude, the frequency and the foreseeability of the risks involved in the performance of the related service for the customer;










(b)


if damage has occurred, the costs of any precautions which would have prevented that damage or similar damage from occurring; and










(c)


the time available for the performance of the related service.




4.   Where in a contract between a trader and a consumer the related service includes installation of the goods, the installation must be such that the installed goods conform to the contract as required by Article 101.
5.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of paragraph 2 or derogate from or vary its effects.
Article 149
Obligation to prevent damage
The service provider must take reasonable precautions in order to prevent any damage to the goods or the digital content, or physical injury or any other loss or damage in the course of or as a consequence of the performance of the related service.
Article 150
Performance by a third party
1.   A service provider may entrust performance to another person, unless personal performance by the service provider is required.
2.   A service provider who entrusts performance to another person remains responsible for performance.
3.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of paragraph 2 or derogate from or vary its effects.
Article 151
Obligation to provide invoice
Where a separate price is payable for the related service, and the price is not a lump sum agreed at the time of conclusion of the contract, the service provider must provide the customer with an invoice which explains, in a clear and intelligible way, how the price was calculated.
Article 152
Obligation to warn of unexpected or uneconomic cost
1.   The service provider must warn the customer and seek the consent of the customer to proceed if:






(a)


the cost of the related service would be greater than already indicated by the service provider to the customer; or










(b)


the related service would cost more than the value of the goods or the digital content after the related service has been provided, so far as this is known to the service provider.




2.   A service provider who fails to obtain the consent of the customer in accordance with paragraph 1 is not entitled to a price exceeding the cost already indicated or, as the case may be, the value of the goods or digital content after the related service has been provided.
Section 3
Obligations of the customer
Article 153
Payment of the price
1.   The customer must pay any price that is payable for the related service in accordance with the contract.
2.   The price is payable when the related service is completed and the object of the related service is made available to the customer.
Article 154
Provision of access
Where it is necessary for the service provider to obtain access to the customer’s premises in order to perform the related service the customer must provide such access at reasonable hours.
Section 4
Remedies
Article 155
Remedies of the customer
1.   In the case of non-performance of an obligation by the service provider, the customer has, with the adaptations set out in this Article, the same remedies as are provided for the buyer in Chapter 11, namely:






(a)


to require specific performance;










(b)


to withhold the customer’s own performance;










(c)


to terminate the contract;










(d)


to reduce the price; and










(e)


to claim damages 
under Chapter 16
.[Am. 218]





2.   Without prejudice to paragraph 3, the customer's remedies are subject to a right of the service provider to cure whether or not the customer is a consumer. [Am. 219]

3.   In the case of incorrect installation under a consumer sales contract as referred to in Article 101 the consumer's remedies are not subject to a right of the service provider to cure.
4.   The customer, if a consumer, has the right to terminate the contract for any lack of conformity in the related service provided unless the lack of conformity is insignificant.
5.   Chapter 11 applies with the necessary adaptations, in particular:







(a)




in relation to the right of the service provider to cure, in contracts between a trader and a consumer, the reasonable period under Article 109 (5) must not exceed 30 days;
[Am. 220]












(b)




in relation to the remedying of a non-conforming performance Articles 111 and 112 do not apply; and
[Am. 221]











(c)


Article 156 applies instead of Article 122.




Article 156
Requirement of notification of lack of conformity in related service contracts between traders
1.   In a related service contract between traders, the customer may rely on a lack of conformity only if the customer gives notice to the service provider within a reasonable time specifying the nature of the lack of conformity.
The time starts to run when the related service is completed or when the customer discovers or could be expected to discover the lack of conformity, whichever is later.
2.   The service provider is not entitled to rely on this Article if the lack of conformity relates to facts of which the service provider knew or could be expected to have known and which the service provider did not disclose to the customer.
Article 157
Remedies of the service provider
1.   In the case of a non-performance by the customer, the service provider has, with the adaptations set out in paragraph 2, the same remedies as are provided for the seller in Chapter 13, namely:






(a)


to require performance;










(b)


to withhold the service provider’s own performance;










(c)


to terminate the contract; and










(d)


to claim interest on the price or damages 
under Chapter 16
. [Am. 222]





2.   Chapter 13 applies with the necessary adaptations. In particular Article 158 applies instead of Article 132(2).
Article 158
Customer’s right to decline performance
1.   The customer may at any time give notice to the service provider that performance, or further performance of the related service is no longer required.
2.   Where notice is given under paragraph 1:






(a)


the service provider no longer has the right or obligation to provide the related service; and










(b)


the customer, if there is no ground for termination under any other provision, remains liable to pay the price less the expenses that the service provider has saved or could be expected to have saved by not having to complete performance.




3.   In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Part VI
Damages and interest
Chapter 16
Damages and interest
Section 1
Damages
Article 159
Right to damages
1.   A creditor is entitled to damages for loss caused by the non-performance of an obligation by the debtor, unless the non-performance is excused.
2.   The loss for which damages are recoverable includes future loss which the debtor could expect to occur.
Article 160
General measure of damages
The general measure of damages for loss caused by non-performance of an obligation is such sum as will put the creditor into the position in which the creditor would have been if the obligation had been duly performed, or, where that is not possible, as nearly as possible into that position. Such damages cover loss which the creditor has suffered and gain of which the creditor has been deprived.
Article 161
Foreseeability of loss
The debtor is liable only for loss which the debtor foresaw or could be expected to have foreseen at the time when the contract was concluded as a result of the non-performance.
Article 162
Loss attributable to creditor
The debtor is not liable for loss suffered by the creditor to the extent that the creditor contributed to the non-performance or its effects.
Article 163
Reduction of loss
1.   The debtor is not liable for loss suffered by the creditor to the extent that the creditor could have reduced the loss by taking reasonable steps.
2.   The creditor is entitled to recover any expenses reasonably incurred in attempting to reduce the loss.
Article 164
Substitute transaction
A creditor who has terminated a contract in whole or in part and has made a substitute transaction within a reasonable time and in a reasonable manner may, in so far as it is entitled to damages, recover the difference between the value of what would have been payable under the terminated contract and the value of what is payable under the substitute transaction, as well as damages for any further loss.
Article 165
Current price
Where the creditor has terminated the contract and has not made a substitute transaction but there is a current price for the performance, the creditor may, in so far as entitled to damages, recover the difference between the contract price and the price current at the time of termination as well as damages for any further loss.
Section 2
Interest on late payments: general provisions
Article 166
Interest on late payments
1.   Where payment of a sum of money is delayed, the creditor is entitled, without the need to give notice, to interest on that sum from the time when payment is due to the time of payment at the rate specified in paragraph 2.
2.   The interest rate for delayed payment is:






(a)


where the creditor's habitual residence is in a Member State whose currency is the euro or in a third country, the rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, or the marginal interest rate resulting from variable-rate tender procedures for the most recent main refinancing operations of the European Central Bank, plus two percentage points;










(b)


where the creditor's habitual residence is in a Member State whose currency is not the euro, the equivalent rate set by the national central bank of that Member State, plus two percentage points.




3.   The creditor may recover damages for any further loss.
Article 167
Interest when the debtor is a consumer
1.   When the debtor is a consumer, interest for delay in payment is due at the rate provided in Article 166 only when non-performance is not excused.
2.   Interest does not start to run until 30 days after the creditor has given notice to the debtor specifying the obligation to pay interest and its rate. Notice may be given before the date when payment is due.
3.   A term of the contract which fixes a rate of interest higher than that provided in Article 166, or accrual earlier than the time specified in paragraph 2 of this Article is not binding to the extent that this would be unfair according to Article 83.
4.   Interest for delay in payment cannot be added to capital in order to produce interest.
5.   The parties may not, to the detriment of the consumer, exclude the application of this Article or derogate from or vary its effects.
Section 3
Late payments by traders
Article 168
Rate of interest and accrual
1.   Where a trader delays the payment of a price due under a contract for the delivery of goods, supply of digital content or provision of related services without being excused by virtue of Article 88, interest is due at the rate specified in paragraph 5 of this Article.
2.   Interest at the rate specified in paragraph 5 starts to run on the day which follows the date or the end of the period for payment provided in the contract. If there is no such date or period, interest at that rate starts to run:






(a)


30 days after the date when the debtor receives the invoice or an equivalent request for payment; or










(b)


30 days after the date of receipt of the goods, digital content or related services, if the date provided for in point (a) is earlier or uncertain, or if it is uncertain whether the debtor has received an invoice or equivalent request for payment.




3.   Where conformity of goods, digital content or related services to the contract is to be ascertained by way of acceptance or examination, the 30 day period provided for in point (b) of paragraph 2 begins on the date of the acceptance or the date the examination procedure is finalised. The maximum duration of the examination procedure cannot exceed 30 days from the date of delivery of the goods, supply of digital content or provision of related services, unless the parties expressly agree otherwise and that agreement is not unfair according to Article 170.
4.   The period for payment determined under paragraph 2 cannot exceed 60 days, unless the parties expressly agree otherwise and that agreement is not unfair according to Article 170.
5.   The interest rate for delayed payment is:






(a)


where the creditor's habitual residence is in a Member State whose currecy is the euro or in a third country, the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, or the marginal interest rate resulting from variable-rate tender procedures for the most recent main refinancing operations of the European Central Bank, plus eight percentage points;










(b)


where the creditor's habitual residence is in a Member State whose currency is not the euro, the equivalent rate set by the national central bank of that Member State, plus eight percentage points.




6.   The creditor may recover damages for any further loss.
Article 169
Compensation for recovery costs
1.   Where interest is payable in accordance with Article 168, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40 or the equivalent sum in the currency agreed for the contract price as compensation for the creditor's recovery costs.
2.   The creditor is entitled to obtain from the debtor reasonable compensation for any recovery costs exceeding the fixed sum referred to in paragraph 1 and incurred due to the debtor's late payment.
Article 170
Unfair contract terms relating to interest for late payment
1.   A contract term relating to the date or the period for payment, the rate of interest for late payment or the compensation for recovery costs is not binding to the extent that the term is unfair. A term is unfair if it grossly deviates from good commercial practice, contrary to good faith and fair dealing, taking into account all circumstances of the case, including the nature of the goods, digital content or related service.
2.   For the purpose of paragraph 1, a contract term providing for a time or period for payment or a rate of interest less favourable to the creditor than the time, period or rate specified in Articles 167 or 168, or a term providing for an amount of compensation for recovery costs lower than the amount specified in Article 169 is presumed to be unfair.
3.   For the purpose of paragraph 1, a contract term excluding interest for late payment or compensation for recovery costs is always unfair.
Article 171
Mandatory nature
The parties may not exclude the application of this Section or derogate from or vary its effects.
Part VII
Restitution
Chapter 17
Restitution
Article 172
Restitution on

in the event of
 avoidance, or termination 
or invalidity [Am. 223]

1.   Where a contract 
or part of a contract
 is avoided or terminated by either party 
or is invalid or not binding for reasons other than avoidance or termination
, each party is obliged to return what that party (“‘the recipient’”) has received from the other party 
under the contract affected or part thereof
. [Am. 224]

2.   The obligation to return what was received includes any natural and legal fruits derived from what was received.


2a.
   
Restitution shall be made without undue delay and in any event not later than 14 days from receipt of the notice of avoidance or termination. Where the recipient is a consumer, this deadline shall be considered met if the consumer takes the necessary steps before the period of 14 days has expired. [Am. 225]



2b.
   
The recipient bears the cost of returning what was received. [Am. 226]



2c.
   
A party may withhold the performance of an obligation to return, where that party has a legitimate interest in doing so, for instance where this is necessary in order to ascertain the existence of a lack of conformity. [Am. 227]



2d.
   
In the case of non-performance of an obligation to return or to pay under this Chapter by one party, the other party may claim damages under Articles 159 to 163. [Am. 228]

3.   On the termination of a contract for performance in instalments or parts, the return of what was received is not required in relation to any instalment or part where the obligations on both sides have been fully performed, or where the price for what has been done remains payable under Article 8(2), unless the nature of the contract is such that part performance is of no value to one of the parties.


Article 172a




Returning digital content and returning the counter-performance in the case of supply of digital content [Am. 229]



1.
   
Digital content shall only be considered returnable where:










(a)






the digital content was supplied on a tangible medium and the medium is still sealed or the seller did not seal it before delivery; or














(b)






it is otherwise clear that the recipient who sends back a tangible medium cannot have retained a usable copy of the digital content; or














(c)






the seller can, without significant effort or expense, prevent any further use of the digital content on the part of the recipient, for instance by deleting the recipient's user account. [Am. 230]







2.
   
The recipient of digital content supplied on a tangible medium which is returnable in accordance with points (a) and (b) of paragraph 1 shall be considered to have fulfilled the obligation to return by sending back the tangible medium. [Am. 231]



3.
   
Where digital content is supplied in exchange for a counter-performance other than the payment of a price, such as the provision of personal data, and that counter-performance cannot be returned, the recipient of the counter-performance shall refrain from further use of what was received, for instance by deleting received personal data. The consumer shall be informed of the deletion of personal data. [Am. 232]

Article 173
Payment for monetary value
1.   Where what was received, including fruits where relevant, cannot be returned, or, in a case of digital content whether or not it was supplied on a tangible medium, the recipient must pay its monetary value. Where the return is possible but would cause unreasonable effort or expense, the recipient may choose to pay the monetary value, provided that this would not harm the other party’s proprietary interests. [Am. 233]

2.   The monetary value of goods is the value that they would have had at the date when payment of the monetary value is to be made if they had been kept by the recipient without destruction or damage until that date.
3.   Where a related service contract is avoided or terminated by the customer after the related service has been performed or partly performed, the monetary value of what was received is the amount the customer saved by receiving the related service.
4.   In a case of digital content the monetary value of what was received is the amount the consumer saved by making use of the digital content.

5.   Where the recipient has obtained a substitute in money or in kind in exchange for goods or digital content when the recipient knew or could be expected to have known of the ground for avoidance or termination, the other party may choose to claim the substitute or the monetary value of the substitute. A recipient who has obtained a substitute in money or kind in exchange for goods or digital content when the recipient did not know and could not be expected to have known of the ground for avoidance or termination may choose to return the monetary value of the substitute or the substitute.
[Am. 234]

6.   In the case of

Where the
 digital content which is not supplied in exchange for the payment of a price, no restitution will be made

but for a counter-performance other than the payment of a price or without counter-performance, and the digital content cannot be considered as returnable under Article 172a(1), the recipient of the digital content does not have to pay its monetary value
. [Am. 235]



6a.
   
Without prejudice to Article 172a(3), where the digital content is supplied in exchange for a counter-performance other than the payment of a price and that counter-performance cannot be returned, the recipient of the counter-performance does not have to pay its monetary value. [Am. 236]

Article 174
Payment for use and interest on money received 
and diminution in value [Am. 237]

1.   A recipient who has made use of goods 
or digital content
 must pay the other party the monetary value of that use for any period where:






(a)


the recipient caused the ground for avoidance or termination;










(b)


the recipient, prior to the start of that period, was aware of the ground for avoidance or termination; or










(c)


having regard to the nature of the goods 
or digital content
 , the nature and amount of the use and the availability of remedies other than termination, it would be inequitable to allow the recipient the free use of the goods 
or digital content
 for that period. [Am. 238]





2.   A recipient who is obliged to return money must pay interest, at the rate stipulated in Article 166, where:






(a)


the other party is obliged to pay for use; or










(b)


the recipient gave cause for the contract to be avoided because of fraud, threats and unfair exploitation.




3.   For the purposes of this Chapter, a recipient is not obliged to pay for use of goods 
or digital content
 received or interest on money received in any circumstances other than those set out in paragraphs 1
, 1a
 and 2. [Am. 239]



3a.
   
The recipient is liable under Articles 159 to 163 for any diminution in the value of the goods, the digital content or their fruits to the extent that the diminishment in value exceeds depreciation through regular use. [Am. 240]



3b.
   
The payment for use or diminution in value shall not exceed the price agreed for the goods or the digital content. [Am. 241]



3c.
   
Where the digital content is not supplied in exchange for the payment of a price, but for a counter-performance other than the payment of a price or without any counter-performance, the recipient of the digital content does not have to pay for use or diminished value. [Am. 242]



3d.
   
Without prejudice to Article 172a(3), where the digital content is supplied in exchange for a counter-performance other than the payment of a price, the recipient of the counter-performance does not have to pay for use or diminished value of what was received. [Am. 243]

Article 175
Compensation for expenditure
1.   Where a recipient has incurred expenditure on goods or digital content 
or the fruits thereof
, the recipient is entitled to compensation to the extent that the expenditure benefited the other party provided that the expenditure was made when the recipient did not know and could not be expected to know of the ground for avoidance or termination. [Am. 244]

2.   A recipient who knew or could be expected to know of the ground for avoidance or termination is entitled to compensation only for expenditure that was necessary to protect the goods or the digital content
, or the fruits thereof,
 from being lost or diminished in value, provided that the recipient had no opportunity to ask the other party for advice. [Am. 245]

Article 176
Equitable modification
Any obligation to return or to pay under this Chapter may be modified to the extent that its performance would be grossly inequitable, taking into account in particular whether the party did not cause, or lacked knowledge of, the ground for avoidance or termination.
Article 177
Mandatory nature
In relations between a trader and a consumer the parties may not, to the detriment of the consumer, exclude the application of this Chapter or derogate from or vary its effects
, before notice of avoidance or termination is given
. [Am. 246]



Article 177a




Commercial guarantees




1.
   
A commercial guarantee shall be binding on the guarantor under the conditions laid down in the guarantee statement. In the absence of a guarantee statement, or if the guarantee statement is less advantageous than advertised, the commercial guarantee shall be binding under the conditions laid down in the advertising relating to the commercial guarantee.




2.
   
The guarantee statement shall be drafted in plain, intelligible language and shall be legible. It shall be drafted in the language of the contract concluded with the consumer and shall include the following:










(a)






a statement of the rights of the consumer, as provided for in Chapter 11, and a clear statement that those rights are not affected by the commercial guarantee, and














(b)






the terms of the commercial guarantee, in particular those relating to its duration, transferability and territorial scope, the name and address of the guarantor and, if different from the guarantor, the person against whom any claim is to be made and the procedure by which the claim is to be made.








3.
   
If not otherwise provided for in the guarantee document, the guarantee is also binding without acceptance in favour of every owner of the goods within the duration of the guarantee.




4.
   
At the consumer's request, the trader shall make the guarantee statement available in a durable medium.




5.
   
Non compliance with paragraph 2, 3 or 4 shall not affect the validity of the guarantee. [Am. 247]

Part VIII
Prescription
Chapter 18
Prescription
Section 1
General provisions
Article 178
Rights subject to prescription
A right to enforce performance of an obligation, and any right ancillary to such a right, 
including the right to any remedy for non-performance except withholding performance,
 is subject to prescription by the expiry of a period of time in accordance with this Chapter. [Am. 248]

Section 2
Periods of prescription and their commencement
Article 179
Periods of prescription
1.   The short period of prescription is two years.
2.   The long period of prescription is ten

six
 years or, in the case of a right to damages for personal injuries, thirty years. [Am. 249]



2a.
   
Prescription takes effect when either of the two periods has expired, whichever is the earlier. [Am. 250]

Article 180
Commencement
1.   The short period of prescription begins to run from the time when the creditor has become, or could be expected to have become, aware of the facts as a result of which the right can be exercised.
2.   The long period of prescription begins to run from the time when the debtor has to perform or, in the case of a right to damages, from the time of the act which gives rise to the right.
3.   Where the debtor is under a continuing obligation to do or refrain from doing something, the creditor is regarded as having a separate right in relation to each non-performance of the obligation.
Section 3
Extension of periods of prescription


Article - 181




Suspension in the case of repair or replacement




1.
   
Where a lack of conformity is remedied by repair or replacement, the running of the short period of prescription is suspended from the time when the creditor has informed the debtor of the lack of conformity.




2.
   
Suspension lasts until the time when the non-conforming performance has been remedied. [Am. 251]

Article 181
Suspension in case of judicial and other proceedings
1.   The running of both periods of prescription is suspended from the time when judicial proceedings to assert the right are begun.
2.   Suspension lasts until a final decision has been made, or until the case has been otherwise disposed of. Where the proceedings end within the last six months of the prescription period without a decision on the merits, the period of prescription does not expire before six months have passed after the time when the proceedings ended.
3.   Paragraphs 1 and 2 apply, with appropriate adaptations, to arbitration proceedings, to mediation proceedings, to proceedings whereby an issue between two parties is referred to a third party for a binding decision and to all other proceedings initiated with the aim of obtaining a decision relating to the right or to avoid insolvency.
4.   Mediation means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the national law. Mediation ends by an agreement of the parties or by declaration of the mediator or one of the parties.
Article 182
Postponement of expiry in the case of negotiations
If the parties negotiate about the right, or about circumstances from which a claim relating to the right might arise, neither period of prescription expires before one year has passed since the last communication made in the negotiations or since one of the parties communicated to the other that it does not wish to pursue the negotiations.
Article 183
Postponement of expiry in case of incapacity
If a person subject to an incapacity is without a representative, neither period of prescription of a right held by that person expires before one year has passed since either the incapacity has ended or a representative has been appointed.


Article 183a




Suspension in cases of force majeure




1.
   
The running of the short period of prescription shall be suspended for the period during which the creditor is prevented from pursuing proceedings to assert the right by an impediment which is beyond the creditor's control and which the creditor could not reasonably have been expected to avoid or overcome.




2.
   
Paragraph 1 shall apply only if the impediment arises, or subsists, within the last six months of the prescription period.




3.
   
Where the duration or nature of the impediment is such that it would be unreasonable to expect the creditor to take proceedings to assert the right within the part of the period of prescription which has still to run after the suspension comes to an end, the period of prescription shall not expire before six months have passed after the impediment was removed. [Am. 252]

Section 4
Renewal of periods of prescription
Article 184
Renewal by acknowledgement
If the debtor acknowledges the right vis-à-vis the creditor, by part payment, payment of interest, giving of security, set-off or in any other manner, a new short period of prescription begins to run.
Section 5
Effects of prescription
Article 185
Effects of prescription
1.   After expiry of the relevant period of prescription the debtor is entitled to refuse performance of the obligation in question and the creditor loses all remedies for non-performance except withholding performance.
2.   Whatever has been paid or transferred by the debtor in performance of the obligation in question may not be reclaimed merely because the period of prescription had expired at the moment that the performance was carried out.
3.   The period of prescription for a right to payment of interest, and other rights of an ancillary nature, expires not later than the period for the principal right.
Section 6
Modification by agreement
Article 186
Agreements concerning prescription
1.   The rules of this Chapter may be modified by agreement between the parties, in particular by either shortening or lengthening the periods of prescription.
2.   The short period of prescription may not be reduced to less than one year or extended to more than ten years.
3.   The long period of prescription may not be reduced to less than one year or extended to more than thirty years.
4.   The parties may not exclude the application of this Article or derogate from or vary its effects.
5.   In a contract between a trader and a consumer this Article may not be applied to the detriment of the consumer.


Title III




Flanking measures [Am. 253]



Article 186a




Communication of judgments applying this Regulation




1.
   
Member States shall ensure that final judgments of their courts applying the rules of this Regulation are communicated without undue delay to the Commission. [Am. 254]



2.
   
The Commission shall set up a system which allows the information concerning the judgments referred to in paragraph 1 and relevant judgements of the Court of Justice of the European Union to be consulted. That system shall be accessible to the public. It shall be fully systematised and easily searchable. [Am. 255]



3.
   
Judgments which are communicated under paragraph 1 shall be accompanied by a standard judgment summary comprising the following sections:










(a)






the issue and the relevant article(s) of the Common European Sales Law;














(b)






a brief summary of the facts;














(c)






a brief summary of the main arguments;














(d)






the decision; and














(e)






the reasons for the decision, clearly stating the principle decided. [Am. 256]







Article 186b




Alternative dispute resolution




1.
   
In contracts between a consumer and a trader, parties are encouraged to consider submitting disputes arising from a contract for which they have agreed to use the Common European Sales Law to an ADR entity within the meaning of point (h) of Article 4(1) of Directive 2013/11/EU.




2.
   
This Article shall not exclude or restrict the parties' right to refer their case at any moment to a court or tribunal instead of submitting their dispute to an ADR entity. [Am. 257]



Article 186c




Development of ‘European model contract terms’




1.
   
As soon as possible and at the latest within three months of the entry into force of this Regulation, the Commission shall set up an expert group to assist it in developing ‘European model contract terms’ based on, and complementary to, the Common European Sales Law, and to foster its practical application.




2.
   
The Commission shall endeavour, with the assistance of the expert group, to present first European model contract terms within [xxx] of the entry into force of this Regulation.




3.
   
The expert group shall comprise members representing, in particular, the interests of users of the Common Sales Law within the Union. It may decide to set up specialist sub-groups to consider separate areas of commercial activity. [Am. 258]



Title IV




Final provisions [Am. 259]



Article 186d




Review




1.
   
By …

 (*3)

, Member States shall provide the Commission with information relating to the application of this Regulation, covering in particular the level of acceptance of the Common European Sales Law, the extent to which its provisions have given rise to litigation and the state of play concerning differences in the level of consumer protection between the Common European Sales Law and national law. That information shall include a comprehensive overview of the case-law of the national courts interpreting the provisions of the Common European Sales Law.




2.
   
By …

 (*4)

, the Commission shall present to the European Parliament, the Council and the Economic and Social Committee a detailed report reviewing the operation of this Regulation, and taking account of, inter alia, the need to extend the scope of the Common European Sales Law in relation to business-to-business contracts, market and technological developments in respect of digital content and future developments of the Union acquis. Particular consideration shall further be given to whether the limitation in respect of distance, and in particular online contracts, remains appropriate or whether it may be feasible to widen its scope to cover, inter alia, on-premises contracts. [Am. 260]



Article 186e




Amendment to Regulation (EC) No 2006/2004




In the Annex to Regulation (EC) No 2006/2004 of the European Parliament and of the Council

 (9)

, the following point shall be added:











‘22.





Regulation (EU) No … of the European Parliament and of the Council of … on a Common European Sales Law (OJ L …).’ [Am. 261]







Article 186f




Entry into force and application




1.
   
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.




2.
   
It shall apply from …

 (*5).


This Regulation shall be binding in its entirety and directly applicable in the Member States. [Am. 262]


Done at …


For the European Parliament


The President




For the Council


The President





(1)  OJ C 181, 21.6.2012, p. 75.

(2)  Position of the European Parliament of 26 February 2014.

(3)  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (OJ L 177, 4.7.2008, p. 6).

(4)  Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (OJ L 199, 31.7.2007, p. 40).

(5)  Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

(6)  
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22).



(7)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

(8)  
Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ L 165, 18.6.2013, p. 63).



(*1)  The table of contents will be established at a later stage.

(*2)  One year after the date of application of this Regulation.

(*3)  
Four years after the date of application of this Regulation.



(*4)  
Five years after the date of application of this Regulation.



(9)  
Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).



(*5)  
OJ: Please insert the date: 6 months after the entry into force of this Regulation.



Appendix 1
Model instructions on withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period expires after 14 days from the day 1.To exercise the right of withdrawal, you must inform us (2) of your decision to withdraw from this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. 3
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawalIf you withdraw from this contract, we will reimburse all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. 4
5
6
Instructions for completion:






1


Insert one of the following texts between inverted commas here:






a)


in the case of a related service contract or a contract for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium: ‘of the conclusion of the contract.’;










b)


in the case of a sales contract: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.’;










c)


in the case of a contract relating to multiple goods ordered by the consumer in one order and delivered separately: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good.’;










d)


in the case of a contract relating to delivery of a good consisting of multiple lots or pieces: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last lot or piece.’;










e)


in the case of a contract for regular delivery of goods during a defined period of time: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the first good.’.














2


Insert your name, geographical address and, where available, your telephone number, fax number and e-mail address.










3


If you give the option to the consumer to electronically fill in and submit information about his or her withdrawal from the contract on your website, insert the following: ‘You can also electronically fill in and submit the model withdrawal form or any other clear statement on our website [insert internet address]. If you use this option, we will communicate to you an acknowledgement of receipt of such a withdrawal on a durable medium (e.g. by e-mail) without delay.’










4


In the case of sales contracts in which you have not offered to collect the goods in the event of withdrawal insert the following: ‘We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest’.










5


If the consumer has received goods in connection with the contract, insert the following:






a


insert:
‘We will collect the goods.’; or
‘You shall send back the goods or hand them over to us or ____[insert the name and geographical address, where applicable, of the person authorised by you to receive the goods], without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.’










b


insert either:
‘We will bear the cost of returning the goods.’; or
‘You will have to bear the direct cost of returning the goods.’; or
If, in a distance contract, you do not offer to bear the cost of returning the goods and the goods, by their nature, cannot normally be returned by post: ‘You will have to bear the direct cost of returning the goods, ___ EUR [insert the amount].’; or if the cost of returning the goods cannot reasonably be calculated in advance: ‘You will have to bear the direct cost of returning the goods. The cost is estimated to a maximum of approximately ___ EUR[insert the amount]’; or
If, in an off-premises contract, the goods, by their nature, cannot normally be returned by post and have been delivered to the consumer’s home at the time of the conclusion of the contract: ‘We will collect the goods at our own expense.’
[Am. 263]










c


‘You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.’














6


In the case of a contract for the provision of related services insert the following: ‘If you requested to begin the performance of related services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.’.






Appendix 2
Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
To [here the trader’s name, geographical address and, where available, his fax number and e-mail address are to be inserted by the trader]:
I/We (*1) hereby give notice that I/We (*1) withdraw from my/our (*1) contract of sale of the following goods (*1)/for the supply of the following digital content/for the provision of the following related service (*1)

Ordered on (*1)/received on (*1)

Name of consumer(s)
Address of consumer(s) (*1)

Signature of consumer(s) (only if this form is notified on paper)
Date


(*1)  Delete as appropriate.




ANNEX




STANDARD INFORMATION NOTICE


The contract you are about to conclude will be governed by the Common European Sales Law, which is an alternative system of national contract law available to consumers in cross-border situations. These common rules are identical throughout the European Union, and have been designed to provide consumers with a high level of protection.
These rules only apply if you mark your agreement that the contract is governed by the Common European Sales Law.
You may also have agreed to a contract on the telephone or in any other way (such as by SMS) that did not allow you to get this notice beforehand. In this case the contract will only become valid after you have received this notice and confirmed your consent.
Your core rights are described below.

THE COMMON EUROPEAN SALES LAW: SUMMARY OF KEY CONSUMER RIGHTS



Your rights before signing the contract


The trader has to give you the important information on the contract, for instance on the product and its price including all taxes and charges and his contact details. The information has to be more detailed when you buy something outside the trader's shop or if you do not meet the trader personally at all, for instance if you buy online or by telephone. You are entitled to damages if this information is incomplete or wrong. [Am. 264]



Your rights after signing the contract


In most cases you have 14 days to withdraw from the purchase if you bought the goods outside the trader's shop or if you have not met the trader up to the time of the purchase (for instance if you bought online or by telephone). The trader must provide you with information and a Model withdrawal 
form

 (1). If the trader has not done so, you can cancel the contract within one year.

What can you do when products are faulty or not delivered as agreed? You are entitled to choose between: 1) having the product delivered 2) replaced or 3) repaired. 4) Ask for a price reduction. 5) You can cancel the contract, return the product and get a refund, except if the defect is very small. 6) You can claim damages for your loss. You do not have to pay the price until you get the product without defects.
If the trader has not performed a related service as promised in the contract, you have similar rights. However, after you have complained to the trader, he normally has the right to first try to do the job correctly. Only if the trader fails again you have a choice between 1) asking the trader again to provide the related service, 2) not paying the price until you get the related service supplied correctly, 3) requesting a price reduction or 4) claiming damages. 5) You can also cancel the contract and get a refund, except if the failure in providing the related service is very small. Period to claim your rights when products are faulty or not delivered as agreed: You have 2 years to claim your rights after you realise or should have realised that the trader has not done something as agreed in the contract. Where such problems become apparent very late, the last possible moment for you to make such a claim is 10 years from the moment the trader had to deliver the goods, supply the digital content or provide the related service.

Unfair terms protection: Trader's standard contract terms which are unfair are not legally binding for you.
This list of rights is only a summary and therefore not exhaustive, nor does it contain all details. You can consult the full text of the Common European Sales Law here. Please read your contract carefully.
In case of dispute you may wish to ask for legal advice.


(1)  Insert a link here.