Hugh Beale symposium

A symposium to launch a book of essays in honour of Hugh Beale took place at Brasenose College, Oxford on 7 November. It was organised by Louise Gullifer and Stefan Vogenauer and was attended by most of the contributors to the book as well as by members of Hugh’s family. It was a warm-hearted occasion with many well-deserved tributes being paid to Hugh as a person, as a legal scholar and writer, as a law teacher, as a law reformer and as a leading contributor to some great European private law projects, including the Principles of European Contract Law and the Draft Common Frame of Reference. Hugh modestly mentioned that he had not been the initiator of any of these projects but everybody with any interest in European private law knows what a massive role he played in driving them along.

The book is called English and European Perspectives on Contract and Commercial Law: Essays in Honour of Hugh Beale. It has 25 chapters on a wide range of topics. Having read a number of them on the train back from Oxford and earlier today I can testify to their high quality and great interest. I look forward to reading the rest.

Several of the contributors gave short presentations at the symposium. Here I will just mention two, because they gave rise to a typically honest reaction from Hugh Beale.

Mindy Chen-Wishart provided an interesting and persuasive rationale for unfair contract terms legislation. Her starting point was that standard form contracting is now all-pervasive. People are not expected to read the standard terms governing a lot of the contracts they conclude, do not in fact do so and could not do so if they want to lead a normal life. Research backs this up.

One study found that even in an environment conducive to reading (the comfort of one’s own home or office) only one in every thousand retail software shoppers chooses to access the licence agreement for more than one second. And those few spend too little time to have read more than a tiny portion of the text (the average time spent was 47.7 seconds and median time was 29 seconds).

Providing more transparency or more information is not the whole answer. It is necessary to control substantive unfairness and not just try to control procedural unfairness. The most persuasive justification for doing this is, in her view, that it protects the institution of contract itself. Standard form contracting is probably necessary in the modern world but abuses have to be controlled if it is not to subvert the core ideas of contract. “Using contract to destroy contract is a worthless choice that the law should not follow.”

Jacobien Rutgers also spoke on unfair contract terms in consumer contracts, focussing more on the developments in the EU and the extent to which the Unfair Contract Terms Directive of 1993 had affected contract law and, indeed, other areas of law such as the law on civil procedure. In the course of her talk she also noted that consumers do not read standard terms – this would be boring, alienating, time-consuming and, above all, pointless because the consumer wants the goods anyway. So

the question is raised whether the duty to provide the information before the conclusion of the contract should not be abandoned, because it does not reflect empirical evidence and should be replaced by other means…

In the discussion after these talks Hugh Beale referred to the work of the English and Scottish Law Commissions in this area and admitted that they had probably placed too much emphasis on consent rather than substance: they had perhaps taken an out of date approach. This frank admission was typical of Hugh. He is an honest, decent and kindly man. I saw these qualities time and time again at the European meetings we attended together. If there was a newcomer to a group who needed to be reassured that he or she was not among ogres Hugh was the one to engage in friendly chat: if flowers had to be bought for a hostess Hugh was the one to arrange it: if appropriate words of a social nature had to be said at short notice Hugh was the one to say them. He was politely ruthless in debate but kind and considerate in conduct.

Hugh’s many friends throughout Europe will be glad to know that he has not fully retired. I suspect that in practice he will hardly be retired at all.

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The European Court of Justice on child custody, child abduction and the concept of habitual residence

The European Court of Justice has given an important judgment in a case (C v M, case C-376/14 of 9 October 2014) on whether a 6 year old girl should live with her mother in Ireland or her father in France. The case discusses questions of some interest in relation to international child custody disputes. These questions include the concepts of wrongful removal or wrongful retention of a child and the concept of habitual residence.

The facts can be stated simply. The father and mother were married in France in May 2008. Within six months the child was born, the marriage had broken down and the mother had raised divorce proceedings in France.

The divorce was granted in April 2012. The court said that the child’s habitual residence was to be with the mother and expressly permitted her to set up residence in Ireland. The decisions on the child were declared to be enforceable on a provisional basis. The father appealed to the appeal court of Bordeaux against that ruling on 23 April 2012.

The mother moved to Ireland with the child in July 2012. On 5 May 2013 the appeal court of Bordeaux ordered that the child should reside with the father.

The father then raised different proceedings to try to get the child returned to France, the one of relevance here being an action before the High Court of Ireland seeking an order (under Article 12 of the 1980 Hague Convention on Child Abduction; Articles 10 and 11 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility; and the corresponding Irish laws) for the return of the child to France and a declaration that the mother had wrongfully retained the child in Ireland. The Irish High Court dismissed this action on the ground that the child was already habitually resident in Ireland by the time of the Bordeaux court’s decision, so that there was no question of wrongful retention in a country other than that of the habitual residence. The father appealed to the Irish Supreme Court. That court decided to stay the proceedings and to refer three questions to the European Court of Justice for a preliminary ruling.

‘(1)    Does the existence of the French proceedings relating to the custody of the child preclude, in the circumstances of this case, the establishment of habitual residence of the child in Ireland?

(2)      Does either the father or the French courts continue to maintain custody rights in relation to the child so as to render wrongful the retention of the child in Ireland?

(3)     Are the Irish courts entitled to consider the question of habitual residence of the child in the circumstances where she has resided in Ireland since July 2012, at which time her removal to Ireland was not in breach of French law?’

On questions 1 and 3 the European Court of Justice held that the Irish courts were entitled, and indeed bound, to consider where the child was habitually resident immediately before the alleged wrongful retention. It observed that:

according to the definition of removal or retention given in Article 2(11) of the Regulation, in wording very similar to that of Article 3 of the 1980 Hague Convention, a removal or retention, before being considered wrongful within the meaning of the Regulation, must have taken place in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect, under the law of the Member State where the child was habitually resident immediately before the removal or retention.

The Court said that it followed from that definition that the identification of a wrongful removal or retention within the meaning of Article 2(11) of the Regulation presupposed that the child was habitually resident in the Member State of origin immediately before the removal or retention.

However, that was not the end of the matter. The Irish courts still had to determine whether or not the child had acquired a habitual residence in France by the time of the Bordeaux court’s ruling. Here the ECJ had some valuable observations on the concept of habitual residence. This is what it said in paragraphs 50 to 57 of its judgment.

 50    As regards the concept of ‘habitual residence’, the Court has previously stated, in interpreting Article 8 of the Regulation in the judgment in A (EU:C:2009:225) and Articles 8 and 10 of the Regulation in the judgment in Mercredi (EU:C:2010:829), that the Regulation contains no definition of that concept and has held that the meaning and scope of that concept must be determined in the light of, in particular, the objective stated in recital 12 in the preamble to the Regulation, which states that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity (judgments in A, EU:C:2009:225, paragraphs 31 and 35, and Mercredi, EU:C:2010:829, paragraphs 44 and 46).

51      In those judgments the Court also held that a child’s habitual residence must be established by the national court, taking account of all the circumstances of fact specific to each individual case (judgments in A, EU:C:2009:225, paragraphs 37 and 44, and Mercredi, EU:C:2010:829, paragraphs 47 and 56). The Court held in that regard that, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent and that the child’s residence corresponds to the place which reflects some degree of integration in a social and family environment (judgments in A, EU:C:2009:225, paragraphs 38 and 44, and Mercredi, EU:C:2010:829, paragraphs 47, 49 and 56).

52      The Court explained that, to that end, account must be taken of, inter alia, the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State (judgments in A, EU:C:2009:225, paragraphs 39 and 44, and Mercredi, EU:C:2010:829, paragraphs 48, 49 and 56). The Court also held that the intention of the parents or one of them to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in that Member State, may constitute an indicator of the transfer of the child’s habitual residence (see the judgments in A, EU:C:2009:225, paragraphs 40 and 44, and Mercredi, EU:C:2010:829, paragraph 50).

53      Further, in paragraphs 51 to 56 of the judgment in Mercredi (EU:C:2010:829), the Court held that the duration of a stay can serve only as an indicator, as part of the assessment of all the circumstances of fact specific to each individual case, and set out the factors which are particularly to be taken into account when the child is young.

54      The concept of the child’s ‘habitual residence’ in Article 2(11) and in Article 11 of the Regulation cannot differ in content from that elucidated in the abovementioned judgments with regard to Articles 8 and 10 of the Regulation. Accordingly, it follows from the considerations set out in paragraphs 46 to 53 of this judgment that it is the task of the court of the Member State to which the child has been removed, when seised of an application for return on the basis of the 1980 Hague Convention and Article 11 of the Regulation, to determine whether the child was habitually resident in the Member State of origin immediately before the alleged wrongful removal or retention, taking into account all the circumstances of fact specific to the individual case, using the assessment criteria provided in those judgments.

55      When examining in particular the reasons for the child’s stay in the Member State to which the child was removed and the intention of the parent who took the child there, it is important, in circumstances such as those of the main proceedings, to take into account the fact that the court judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it. Those factors are not conducive to a finding that the child’s habitual residence was transferred, since that judgment was provisional and the parent concerned could not be certain, at the time of the removal, that the stay in that Member State would not be temporary.

56      Having regard to the necessity of ensuring the protection of the best interests of the child, those factors are, as part of the assessment of all the circumstances of fact specific to the individual case, to be weighed against other matters of fact which might demonstrate a degree of integration of the child in a social and family environment since her removal, such as those mentioned in paragraph 52 of this judgment and, in particular, the time which elapsed between that removal and the judgment which set aside the judgment of first instance and fixed the residence of the child at the home of the parent living in the Member State of origin. However, the time which has passed since that judgment should not in any circumstances be taken into consideration.

57      In the light of all the foregoing, the answer to the first and third questions is that Articles 2(11) and 11 of the Regulation must be interpreted as meaning that where the removal of a child has taken place in accordance with a judgment which was provisionally enforceable and which was thereafter overturned by a judgment which fixed the residence of the child at the home of the parent living in the Member State of origin, the court of the Member State to which the child was removed, seised of an application for the return of the child, must determine, by undertaking an assessment of all the circumstances of fact specific to the individual case, whether the child was still habitually resident in the Member State of origin immediately before the alleged wrongful retention. As part of that assessment, it is important that account be taken of the fact that the judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it.

On the second question referred for a preliminary ruling the ECJ pointed out that even if the Irish court concluded that the child had acquired a habitual residence in Ireland by 5 May 2013 so that the father did not obtain the return of the child under the strict child abduction rules he would still be able to seek enforcement of the Bordeaux court’s ruling under the normal rules on the recognition and enforcement of judgments relating to parental responsibility within the EU.

This case is both impressive and disturbing. It is impressive because the court was able to deal with the case relatively quickly under the special “urgent procedure”. The request for a preliminary ruling was received on 7 August 2014 and the ruling was given on 9 October 2014. The case is also impressive because of the way in which the court cut through the legal difficulties and came to clear and convincing conclusions. It is disturbing because of the sheer number and weight of the legal proceedings brought to bear on the simple issue of where a six year old child should live. One is left with the impression that there must be a better way of dealing with such matters.



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The Draft Common Frame of Reference in the Swedish Supreme Court

The Study Group on a European Civil Code which prepared the Principles, Definitions and Model Rules of European Private Law (more commonly known as the Draft Common Frame of Reference or DCFR) was fortunate to have among its members both a Swedish Supreme Court Judge (Torgny Håstad) and a professor who has since become a Swedish Supreme Court Judge (Johnny Herre). It is perhaps therefore not surprising that the Swedish Supreme Court has shown an awareness of the usefulness of the DCFR.

A recent article on the website of the International Law Office  mentions that the Swedish Supreme Court has referred to the DCFR in support of its rulings in eight cases since it was first published in 2009. There are probably other cases where it has been influential, although not cited in the final decision.

This extensive use of the DCFR has apparently led to a vigorous debate in Sweden as to the status of the DCFR in Swedish law. The article concludes, as might be expected, that the DCFR cannot be regarded as a source of law. It is soft law. However, it is clear from the way the Court is using it that practitioners cannot afford to disregard it. In the words of the author of the article (Bo Thomaeus)

it is not naive to argue that the DCFR should rank if not on the same level, then at least just below the level of accepted sources. The Supreme Court rulings of the past five years indicate that law practitioners should familiarise themselves with the DCFR and a comprehensive knowledge of it might prove valuable in any commercial litigation or arbitration under Swedish law.

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New Polish private law blog

I’m grateful to Ross MacDonald for passing on information about a new Polish private law blog.

The blog, which is written in English, can be accessed at Its introduction says that:-

The website is addressed to lawyers dealing both with doctrine and practice, as well as to the others interested in current events in private law. Its aim, however, is not to replace traditional analysis, which remains essential for professional lawyers. It also does not aim merely to provide news on legal acts and publications – which is a task for e-information of another type.  The goal we are pursuing is rather to report changes in the legal discourse, on new issues and trends coming up within the civil law domain and its particular areas – especially triggered by new legislation, books and articles, but also by new events on the market situation.

One recent article on “Law and e-society: the new paradigm of discourse” examines the impact of legal websites and blogs.

The websites on legal issues are requiring lawyers to go beyond the frames of their discourse existing up to now, considered as the traditional Begriffjurisprudenz. The focus on analysing texts and finding hidden meanings still remains the domain of “thick books”. However, what is new, fresh and still being sketched out, what is going on in law and jurisprudence as a result of changes within social mechanisms and social communication and, finally, what was previously not considered mature enough to be introduced into legal discourse – is now finding its way onto websites.

I liked the bit about “what was not previously considered mature enough to be introduced into legal discourse”. It reminded me of the excellent “Work not yet in progress” series of talks organised by the Edinburgh Centre for Private Law.

The article doesn’t mention the two greatest delights of blog posts – their brevity and their immediacy. The real contrast is not between the “thick book” and the blog post but the article in a legal journal, which must be reasonably weighty and which can take over a year to be published, and the quick note which can be light and which can be published with a click of the mouse.

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Scottish law on prescription found wanting

In a recent case in the UK Supreme Court the Scottish law on the prescription of an obligation to make reparation for property damage caused by another’s fault was found to be defective and legislative reform was recommended. The problem would not have arisen if the law had been in line with European private law models.

I’ll call the case Morrison v ICL Plastics although its full name at [2014] UKSC 48 is a bit longer. It arose out of a serious explosion at ICL’s factory in Glasgow on 11 May 2004 which killed nine people, injured many others and caused extensive damage to neighbouring properties, including a shop owned by Morrison. Morrison raised the action for reparation more than 5 years after the damage occurred but within 5 years of the date when it first knew, or could reasonably be expected to have known, what caused the explosion. The prescriptive period in Scotland for such obligations of reparation is 5 years. The question was whether the obligation of reparation had prescribed.

The case turned on the wording of the Prescription and Limitation (Scotland) Act 1973. That Act makes the normal start of the running of the prescriptive period the date when loss, injury or damage caused by an act, neglect or default occurs. Section 11(3) then provides that if

the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware.

To keep things simple we can focus on actual awareness and ignore the reasonable diligence bit.

The question in the case was whether the words “caused as aforesaid” in s.11(3) meant that the creditor had to be aware of something more than the mere fact of the damage and, if so, what. Three of the judges held that the words “caused as aforesaid” added nothing of substance and that the prescriptive period ran from the date when the creditor first became aware of the fact of the damage. So the obligation had expired. Two of the judges held that the words “caused as aforesaid” meant that the creditor had to be aware of the cause of the damage before the prescriptive period would start to run. So the obligation had not expired when the action was raised. The judges were all agreed that the creditor did not have to know that there was a legal cause of action before the period began to run.

The minority view seems more reasonable but the important point is that the law on either view is defective. On the majority view the creditor could lose the right to reparation before knowing, or being able to know, that the damage was caused by anything other than an unfortunate accident or “act of god”. Even on the minority view the right could be lost before the identity of the person responsible for the damage was known.

It is not surprising that Lord Hodge, who was in the dissenting minority, called for legislative reform on lines already recommended by the Scottish Law Commission. As long ago as 1989 the Commission had recommended in its Report on Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (Scot Law Com No 122) that the law be clarified by amending the legislation to state expressly that the discoverability formula included knowledge (a) that the loss, injury and damage was attributable in whole or in part to an act or omission and (b) of the identity of the defender.

This is essentially the solution in model European private laws such as the Principles of European Contract Law (PECL) or the Draft Common Frame of Reference (DCFR). The latter provides in article III. – 7:301 that “The running of the period of prescription is suspended as long as the creditor does not know of, and could not reasonably be expected to know of:

  • the identity of the debtor; or
  • the facts giving rise to the right …”


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After the referendum

The last weeks and months have been dominated by the debate on the referendum question “Should Scotland be an independent country?” 55% of those who voted said No and 45% said Yes. So now we move on.

One curious feature of the debate was that there was little focus on the question of what issues are best dealt with at what level. In a sense that was what the debate was all about but it was rarely presented in that way. The point is relevant to this blog because there is, in my view, a strong argument that some big private law issues are best dealt with at EU level and not at either Scottish or UK level.

To put it simply, we do not need 28 or more different systems of private law within one internal market with free movement of goods and people. A dispassionate observer might say that a European civil code would be a good idea.

However, the debate showed that nationalism (even if it is called civic nationalism and even if ethnicity, language and religion were not issues) is still capable of arousing strong passions especially if it gets mixed up with policy questions more suitable for a general election. A European civil code might be a sensible solution if the matter is viewed dispassionately, but politics is not dispassionate.

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Scottish Law Commission makes good use of European private law instruments

In its Discussion Paper on Third Party Rights under Contracts (DP No 157, 2014) the Scottish Law Commission makes use of the Draft Common Frame of Reference (DCFR) and the proposed Common European Sales Law (CESL) along with two other “comparator texts” – the Unidroit Principles of International Commercial Contracts (PICC) and the (English) Contracts (Rights of Third Parties) Act 1999.

Throughout the paper relevant excerpts from these texts are set out very helpfully in tabular form. The most immediately striking feature of this process is the long-winded nature of the 1999 Act.

The paper takes full account of the areas where the law on third party rights under contracts is important in practice. It notes that, although Scottish law has recognised the possibility of third party rights under contracts since the 16th century, its rules are perceived as archaic and, in some respects, confused, uncertain and inflexible. Some practitioners in Scotland therefore prefer to use the modern English law.

The key question in this area is “When is the normal freedom of the contracting parties to modify their contract by agreement limited by the right which they are conferring on the third party?” Once that is decided, many other issues are resolved by the general background law on obligations. There are at least three candidate answers.

It could be provided by the law that the parties’ normal freedom to modify their contract is limited by the third party’s right as soon as  the contract is concluded (assuming the third party is identifiable) even if the third party knows nothing of the term providing the right. This is not an attractive solution. It pays too little respect to the principle of party autonomy. The only reason to limit the parties’ normal freedom of contract in this situation is the legitimate expectation interest of the third party. The third party has no expectation interest at all at this stage.

Secondly, it could be provided that the parties’ freedom to modify their contract is limited by the third party’s right as soon as either of them has given the third party notice that the right has been conferred. This is the solution of the DCFR and the CESL and it seems a good one. It reflects the notion that the legitimate expectation interest of the third party is deserving of protection and it generally protects that interest as soon as it arises. The only question is whether there might be other ways in which the contracting parties might be regarded as responsible for creating an expectation interest, or a potential one, in the third party – e.g. by registering a document containing the contract in a public register or otherwise putting it into the public domain.  Might there be equivalents of intimation which should be recognised? This question is addressed in the Discussion Paper.

Thirdly, it could be provided that the parties’ freedom to modify their contract is limited by the third party’s right only when the third party accepts the right. In its pure form this solution would be likely to give rise to arguments about implied or deemed acceptance. Third parties might not know of the requirement of express acceptance and might just proceed to rely on the right. To get over this difficulty a requirement of acceptance can be supplemented by rules giving such reliance the same effect as acceptance. Different versions of this solution can be found in the PICC and the 1999 Act. A basic objection to this sort of approach is that it disregards the source of the third party’s information about the right. An expectation interest based on something which the contracting parties have done deliberately to make the third party aware or potentially aware of the right (e.g. intimation or registration) can be regarded as a legitimate expectation interest. An interest based on industrial espionage, or an office leak, or office gossip should not be regarded as a legitimate expectation interest. The PICC may be thought to cover this to some extent because it says “has reasonably acted in reliance” (art. 5.2.2) but the question is not so much the reasonableness of the actings as the source of the knowledge. The 1999 Act does not even have this possible escape route.

One of the questions asked in the paper is “Do consultees agree that a third party right should not become irrevocable simply because the third party has informally acquired knowledge of the existence of the right?” and it is plain that the Commission is expecting a positive answer to that question.

All in all this is an excellent Discussion Paper, much more practical in its orientation and much more comprehensive in its coverage than the above would suggest. May it lead rapidly to a report with recommendations for reform.

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European Parliament adopts proposal for a Common European Sales Law

By 416 votes to 159, with about 65 abstentions, the European Parliament today adopted a legislative resolution on an optional Common European Sales Law (CESL). This is good news for European businesses and consumers who want to sell or buy online across borders. It is to be hoped that the Council will eventually give a similarly positive reaction.

The debate was not particularly informative. There were assertions that the proposal would diminish consumer protection and assertions that it would increase consumer protection and also benefit consumers in other ways. The latter outnumbered the former. My own view is that you only have to read the rules to see that they provide a totally adequate, and very high, level of consumer protection. As a consumer I would not ask for anything more.

Three speakers pointed out that the proposal would be particularly good for people in small countries who may have to buy from sellers in another country if they wish to buy certain things online at all. It will not be quite so useful for people in big countries like Germany and the UK who can generally get what they want from sellers in their own country.

The British speakers did not distinguish themselves. Two of the more right wing ones indulged in personal insult and blustering vituperation respectively, the only speakers in the whole debate to do so. It was embarrassing to listen to. One of them lauded the UK Sale of Goods Act which had “stood the test of time”, without mentioning that it has stood that test so well that it is about to be replaced for consumer sales by the new Consumer Rights Bill.

I was disappointed in the intervention by Catherine Stihler. I expected better because she did a good job on the recent Consumer Rights Directive. She made the surprising statement that the proposal would undermine Scottish consumer rights. How? Few Scottish consumers buy online across EU borders (although this could change dramatically if Scotland left the UK but became a Member State of the EU). So most Scottish consumers will not be affected at all by the proposal. Those who do buy from another EU country would be better off under the CESL, with its accessible and highly protective rules in their own language, than under a mix of a foreign law and UK law, which is what they are generally exposed to at present.

The forthcoming elections for the European Parliament will mean a delay in the hard legislative work. In a recent article (ZEuP 2014 at p. 6.) Hans Peter Mayer and Julia Lindemann estimate that it will only be in the second half of 2015 that we can expect to see real progress. But today’s decision is a solid step forward and a major achievement for the Parliament and its committees.


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Common European Sales Law and UK Consumer Rights Bill to be discussed on same day

The Proposed Regulation on a Common European Sales Law (CESL) will be debated by the full European Parliament on the morning of Tuesday 25 February: the vote will take place on the afternoon of the following day.

This will be a key test for the proposal. As noted in earlier posts, the Legal Affairs Committee is strongly in favour of the proposed optional European sales law and has put forward a number of useful and constructive amendments, taking full advantage of the input of experts, consultees and stakeholders including, notably, the European Law Institute. However, the (rather divided) Internal Market and Consumer Protection Committee was not so keen on the idea of an optional instrument and has put forward amendments designed to convert the proposed optional instrument into a compulsory instrument, something which has little or no chance of proceeding further. It will be interesting to see what happens.

25 February is also the day when the new UK Consumer Rights Bill next comes before the Public Bills Committee of the House of Commons.

It is interesting to compare the CESL with the sales provisions of the UK Bill. Both are trying to do the same sort of thing but in some key respects the CESL comes out better. For example, the buyer’s remedies when goods are not conform to contract are set out much more clearly and simply in the CESL. There is a simple non-hierarchical list: the buyer has a free choice: nothing turns on the type of term which has been breached. In the Consumer Rights Bill the remedies vary depending on the type of term which is breached. There is one set of remedies for breach of certain statutorily included terms (the old implied terms under a new name) and there are different sets of remedies for breach of other terms, including express terms. Distinguishing between express terms and legally implied terms in this way seems a highly dubious way of proceeding – even worse than the discredited technique of distinguishing between conditions and warranties.

The Consumer Rights Bill also ties itself in knots in order to confer a new composite ‘right to reject ‘. This is not the right to reject the goods of the Sale of Goods Act 1979. It has nothing to do with returning the goods to the seller (or making them available for collection): that is now seen, correctly, not as a right of the buyer but as an obligation of the buyer which follows on termination of the contract and which corresponds to the seller’s obligation to refund the price if it has already been paid. The new ‘right to reject’ is instead a combination of a rather pallid right to reject the goods (which, according to the Bill, is exercised by just indicating to the seller that they are rejected) and a right to terminate the contract (described in the Bill as ‘treating the contract as at an end’). There is no need to legislate for a right (technically, a freedom) to decide that non-conforming goods are not acceptable and to tell the seller this. It would infringe basic human rights to deny such a freedom. So this element in the composite ‘right to reject’ is superfluous. The key element is the right (technically, a power) to terminate the contract. In reality the composite ‘right to reject’ seems to be nothing more than a right to terminate the contract. The Bill would have been much simpler if it had just said this. Of course, it will be said that the Law Commissions’ consultations revealed that the ‘right to reject’ was immensely popular in the UK but it is not the right to reject the goods which is popular. Consumers generally couldn’t care less if the seller said ‘You can keep the goods and get your money back’. It is the right to end the buyer-seller relationship and obtain a refund which is popular. The ‘right to reject’ of popular imagination is just a misleading and confusing way of describing the right to terminate the contract.

In many respects the Consumer Rights Bill is admirable. There are many fine drafting features, for example, and it should bring increased clarity in a number of areas. But its approach to remedies in general and the composite ‘right to reject’ in particular seems unnecessarily complicated and idiosyncratic.

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The demise of the bon père de famille

There is a nice blog post by Jan Smits on the demise of the bon père de famille in French legislation. In a long-overdue spirit of gender equality the French Assemblée Nationale decided on 21 January 2014 that this venerable expression – the successor to the bonus paterfamilias of Roman law – is to be replaced by references to the reasonable person.

Does this go far enough? Does any legislation in any country need this sort of anthropomorphic standard? References to what the hypothetical reasonable person would do are just references to what is reasonable.

Jan’s post is in the excellent Maastricht European Private Law Blog at

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