Jens Kleinschmidt

Policy Options for Progress Towards a European Contract Law. Comments on the issues raised in the Green Paper from the Commission of 1 July 2010, COM(2010) 348 final

In its position paper on the Commission’s Green Paper on policy options for a European contract law (COM (2010) 348 final, 1 July 2010), the Max Planck Working Group welcomes initiatives to overcome the fragmentary and inconsistent state of contract law in Europe. However, the Working Group criticizes that the Commission did not sufficiently consider the issue of the legislative competence of the EU. At present, an optional instrument (opt-in) drafted as a Regulation (option 4) and based on Art. 352 TFEU seems to be the preferable option. Such an instrument raises a number of questions regarding its choice and its area of application which have been addressed by the Working Group. An optional instrument should be granted a broad scope of application, including both B2B and B2C contracts, domestic contracts, intra-Union cross-border contracts as well as contracts with parties resident in third states. Its scope should neither be limited to cross-border contracts nor to contracts concluded online. However, the recommendation of the Institute is subject to an evaluation of the substantive quality of the instrument which is not yet available. In this regard, an important preparatory work for any future European contract law, i.e. the Draft Common Frame of Reference (DCFR), has already been criticized by some members of the Working Group. Also, any legislative initiative should be preceded by a proper review of the existing acquis and should be coordinated with the current work on a Consumer Rights Directive.This article is published in this Research Paper Series with the permission of the rights owner, Mohr Siebeck. Full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.

Die Bestimmung durch einen Dritten im Europäischen Vertragsrecht. Textstufen transnationaler Modellregelungen

The European Commission proposal for a Common European Sales Law constitutes the topmost of a number of layers of (model) rules on European Contract Law that have built up over recent decades. In Art. 75, the proposal contains certain rules on the determination of contract terms by a third party, mostly an expert. This provision is analysed against the backdrop of its predecessors in earlier layers and the general historical and comparative background of its subject. Although rarely discussed, it has important repercussions for the attitude of a set of rules towards freedom of contract and the role of the court in contract law. In light of this context, several modifications are suggested. Concerning scope, the reference to price determination may easily be deleted, while the wording should be broadened so as to encompass expressly the determination of facts by the third party. Court control of the determination against the standard of gross unreasonableness is justified, but must not be mandatory. The concept of gross unreasonableness requires further elucidation. The possibility of replacing a grossly unreasonable determination by the court is appropriate. The provision should be generalized to address all reasons for failure of the mechanism; in case of failure, a determination by the court seems preferable over the appointment of a new third party as a default rule. Finally, practical problems concerning expert determination, i.e.questions of procedure and the relationship to arbitration, still need to be taken into account.This article is published in this Research Paper Series as part of the special issue of the Rabel Journal in honour of Reinhard Zimmermann’s 60th birthday with the generous and exceptional permission of the rights owner, Mohr Siebeck. Full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.

Stellvertretung, IPR und ein optionales Instrument für ein europäisches Vertragsrecht

Whether a possible draft optional instrument for European contract law (OI) will contain rules on agency seems as of yet unclear. A lack of rules on agency would constitute an external gap to be filled with the substantive national rules designated by the choice of law rules of the forum (subject to the actual rules on gap-filling in an OI). This would run counter to the purpose of an OI. If, however, an OI were to contain rules on agency, making them applicable would raise two issues: (i) Since the interests of three persons are affected, the ordinary rules on bilateral party choice may not be sufficient, and (ii) while parties may have an interest to ascertain the extent of the agent’s authority before the conclusion of the contract, optional agency rules can by definition only be applied upon party choice.This paper first examines existing choice of law rules regarding the external aspects of agency, a matter excluded from Rome I. It then analyses their effect on the choice of an optional instrument and discusses various reactions. The following approach appears preferable for implementation: Rules on agency in an OI (that cannot extend to authority bestowed by law) always apply when the contract concluded with the help of an agent is governed by the OI. Therefore, choice of the OI requires that the agent could reasonably be aware of such choice. The requirement that the agent be authorized to effect such choice and the protection of the agent in case of a subsequent choice of an OI should be taken care of by general rules in the OI subjecting the validity of the choice to be determined by the provisions of the OI and protecting the rights of third parties in general, similar to Art. 3(2), (5) Rome I.This article is published in this Research Paper Series with the permission of the rights owner, Mohr Siebeck. Full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.

Prescription: General Framework and Special Problems Concerning Damages Claims

In spite of its enormous practical significance, the law of extinctive prescription (or: limitation periods) has for a long time led a backyard existence. That has changed dramatically in the course of the last three decades. The present article, at first, provides an overview of national reform legislation and pertinent international instruments, and it analyses characteristic trends of the legal development as well as the relevant policy considerations. The attention is then turned to specific problems relating to damages claims. First, it has to be determined when prescription begins to run. The damage for which compensation is sought can occur some time after the act giving rise to liability has been committed. Which of these two events, as a general rule, is relevant as far as commencement of prescription is concerned? Second, there is the problem that the damage may only materialize successively: the defendant’s act first gives rise to damage A and, at some later stage, also to another unexpected consequence B. Does that matter, as far as the period of prescription for the victim’s damages claim is concerned? These two questions mainly concern the regular (three-year) period of prescription. In the third place, certain types of cases will have to be examined, where there is a very long latency period between the act giving rise to liability and the damage and where, therefore, the existence of the maximum period (long-stop) has been at the centre of attention. And, finally, it has to be asked whether the general prescription regime can adequately deal with cases where certain psychological processes prevent a person from pursuing his or her claim; the sexual abuse of minors provides the most prominent example. Please note that this is an article published in German.