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The sale of goods

The sale of goods. General on sales law in the EU. The CISG European member states and reservations Coverage: Business contracts The directive on sale of consumer goods (1999/44) Coverage: consumer contracts. CISG Overview. Non-mandatory set of rules Structure

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The sale of goods

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  1. The sale of goods

  2. General on sales law in the EU • The CISG • European member states and reservations • Coverage: Business contracts • The directive on sale of consumer goods (1999/44) • Coverage: consumer contracts

  3. CISGOverview • Non-mandatory set of rules • Structure • Sphere of application and general provisons (part I) • Formation of the contract (part II) • Sale og goods (part III) • Obligations of the seller and buyer’s remedies • Obligations of the buyer and seller’s remedies - Final provisions (part IV)

  4. Obligations of the seller • The concept of conformity: art 35: • GR: The contract • Default rule: • Ordinary purpose • Particular purpose • Sample • How the goods are packaged • Fitness for purpose: art. 35, ”Ordinary purpose” • German decision BGH, 8 March 1995 (UNILEX) - the impact of public law rules • US decision Medical Marketing International , Inc v. Internazionale Medico Scientifica S.t.l. 1999 WL 31945 (E.D. L.a) (and UNILEX) - followed the German decision • Free of third party rights, including intellectual proterty rights, art. 41, art, 42

  5. Buyer’s remedies (art. 45 et seq.) • Specific performance (art. 46, para. 1) • Re-delivery (art. 46, para. 2) • Provided fundamental breach • Repair (art. 46, para. 3) • Avoidance (art. 49) and art. 84 (effects of avoidance) • Provided fundamental breach • Damages (art.79) • almost strict liability

  6. Obligations of the buyer • Notice (art. 39) • Reasonable time (art. 39, para 1) • French decision, supreme court of France, May 26, 1999, - flexible stance • Also US courts take a flexible stance (?) • cp. • German decision, BGH 3, november 3, 1999 (unilex) – 1 month as a general notification period • Absolute (2-year) cut off rule (art. 39, para 2)

  7. Directive 1999/44 on the sale of consumer goods and associated guarantees • Mandatory set of rules • Minimum harmonization (art. 8 (2)) • Structure • Scope and definitions (art 1) • The conformity concept (art. 2) • Remedies (art. 3) • Time limits (art. 5)

  8. Definitions • Art. 1: • Art. 1, para 2 (a): ”Consumer”

  9. Obligations of the seller • The conformity concept (art. 2) • GR: The contract (para.1) • Comply with description (para 2 (a)) • Fitness for particular purpose (b) • Fitness for ordinary purpose ( c ) • ”Reasonable expectations” of the buyer (d)

  10. Remedies (art. 3) • Repair or replacement (optional) art 3, para 2 and 3 • NB: ”Disproportionate” art 3, para 3 • ECJ ruling C-404/06 Quelle AG • ECJ ruling of June 16, 2011 • Reduction of the price (art. 3, para 5) • Recission (avoidance) (art. 3, para 6) • Damages?

  11. Obligations of the buyer • Notice (art. 5) • Reasonable time = two months? Art. 5, para 2 • Absolute (2 year) cut off rule art. 5, para 1) • Presumption rule art 5, para 3

  12. The Future (?) Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law (Brussels 11.10.2011 (COM (2011) 635 final)

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