Drafting New Model Rules on Sales : CFR as an Alternative to the CISG?

Abstract

The article compares basic structures of the sales part of the 2009 Draft Common Frame of Reference prepared by the Study Group on a European Civil Code (DCFR) to those of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG). The authors focus first of all on general issues regarding the systematics of sales law and conclude that the interplay of specific sales law and general law of obligations within the DCFR is complicated and in some instances unclear, especially as far as remedies based on mistake and tort are concerned which concur to those based on breach of contract. In the second step the authors address those issues where the DCFR has deviated from the solutions of the CISG and hold that these deviations have been much to the disadvantage of the DCFR. This is in particular stated for the topics of nonconformity as well as remedies for breach of contract. With regard to those legal questions that are not dealt with by the CISG, the authors analyse the ways in which the DCFR has filled these gaps. Three issues are addressed: Pre-contractual duties and liability, non-negotiated terms as well as interest. Again, the authors find the solutions developed in the DCFR to be unconvincing. A final criticism is raised against the codifying style and the techniques employed in the drafting of the DCFR. As a final conclusion in the view of the authors the DCFR in its current state does not provide an alternative to the CISG for sales law, be it as an optional instrument or a toolbox.