Faktiske mangler ved varer og købers misligholdelsesbeføjelser i handelskøb i EU: En komparativ analyse af CISG og CESL

Abstract

One of the areas in sales, which causes the greatest deal of trouble, is the non-conformity of goods. This is especially true in international sales, not only because of the geographical distance between the parties, but in particular because of the differences between the parties national legislation. CISG has for many years now been the primary legislation of international sale of goods, but a recent survey of EU Member States has shown that 7 out of 10 companies would prefer a single European contract law. One of the main barriers, which prevent companies from engaging in cross-border trade, is problems in resolving conflicts. This has led to the proposal for a regulation of the European Parliament and Council on ”A Common European Sales Law”. The purpose of this thesis is to analyse whether CESL will improve the companies’ legal position, when conflicts arise due to the nonconforming goods. Furthermore, the thesis analyses whether CESL or CISG will minimize the transaction costs related to cross-border sale of goods. If CESL manages to meet these criteria, it will encourage the companies in the EU Member States to engage in cross-border sales. From the results in the comparative analysis of CESL and CISG, it is clear that CESL bear a remarkable resemblance to CISG. This means, that it is doubtful CESL will have the required effect on cross-border sale of goods. However, a few provisions are different from CISG, in particular the provision on seller’s right to cure, which restricts buyer’s right to terminate the contract. Legally, the changes that follow from this will be an immediate disadvantage for the companies, but on a closer look, it can be derived from the analysis in Chapter 3, that the differences between CESL and CISG regarding the seller’s right to cure will lead the parties to an economically efficient result. In general, the conclusion is that CESL provides the parties with an extensive regulation, which can ultimately improve the legal position of the parties and thereby minimize the transaction costs related to the sale of goods between EU Member States.