1 - Foreword [Seite 6]
2 - Contributors [Seite 8]
3 - Table of Contents [Seite 12]
4 - Part I. Introduction [Seite 16]
4.1 - Towards a European Contract Law ? An Introduction [Seite 18]
4.2 - The Next Steps Towards a European Contract Law for Businesses and Consumers [Seite 24]
5 - Part II. Scope and Function [Seite 36]
5.1 - Towards a European Contract Law [Seite 38]
5.2 - Scope and Function of the Optional Instrument on European Contract Law [Seite 50]
6 - Part III. Pre-contractual Duties [Seite 62]
6.1 - Pre-contractual Information. Duties in the Optional Instrument [Seite 64]
7 - Part IV. Formation [Seite 78]
7.1 - Contract Formation ? An Illustration of the Difficult Interface with National Law and Enforcement [Seite 80]
7.2 - Conclusion of the Contract [Seite 96]
7.3 - ?Invalidity? of Contracts and Contract Terms in the Feasibility Study on a Future Instrument for European Contract Law [Seite 112]
8 - Part V. Unfairness and Non-negotiated Terms [Seite 136]
8.1 - Unfairness and Non-negotiated Terms [Seite 138]
8.2 - Unfair Terms in Contracts Between Businesses [Seite 146]
9 - Part VI. Performance and Remedies [Seite 164]
9.1 - The Influence of the Chosen Structure of the Draft for the Optional Instrument on the Functioning of the System of Remedies [Seite 166]
9.2 - Performance and Remedies [Seite 176]
10 - Part VII. Panel Discussion. Overarching Issues and Perspectives [Seite 182]
10.1 - European Contract Law ? The Case for a Growing Optional Instrument [Seite 184]
10.2 - A Step Further in a Long and Incremental Process: the Feasibility Study of the Expert Group on European Contract Law [Seite 188]
10.3 - The European Contract Law ? Seen by a Judge [Seite 194]
10.4 - A ?Certain? Future for the Optional Instrument [Seite 196]
10.5 - Second and First Step Towards a European Contract Law [Seite 210]
10.6 - Towards a European Contract Law that Truly Serves European Citizens and Businesses [Seite 212]
11 - Part VIII. Future Perspectives [Seite 216]
11.1 - On a European Contract Law for Consumers and Businesses ? Future Perspectives [Seite 218]
12 - Annex. Feasibility Study for a Future Instrument in European Contract Law [Seite 230]
Contract Formation – An Illustration of the Diffi cult Interface with National Law and Enforcement (p. 65-66)
Evelyne Terryn
I. Introduction
Contract formation was the subject I was asked to cover for the 3 June 2011 Leuven conference. In this paper I will briefl y discuss the main changes in contract formation in the Feasibility Study of the Expert Group (ECL (EG)) compared to the Draft Common Frame of Reference (DCFR)1 (part II). Th is paper will not deal with the provisions on contract formation in great detail, but the discussion will rather be used to point out that an Optional Instrument – as it is currently envisaged – will not be a self-standing instrument. It will therefore be crucial that the relationship with national law is spelled out explicitly (part III) and fi nally, it will be argued that more attention should be paid to enforcement and sanctions (part IV). Th e focus of this paper is therefore more on what is not said in the Feasibility Study than on what it says.
II. Changes compared to the Draft Common Frame of Reference
1. No revolution
Contract formation is broader than the issues that will be covered in this paper. I will focus on part II, chapters 3 (conclusion of contract) and 5 (defects in consent) of the Feasibility Study in comparison with Book II, chapters 4 (formation) and 7 (grounds of invalidity) of the DCFR. Pre-contractual duties, rights of withdrawal and interpretation are covered by other authors in this volume. Th e changes compared to the DCFR for contract formation are not revolutionary. Some provisions have been reorganized, some were shortened, and sometimes the draft ing was improved.
The more fundamental choices that had to be made are most oft en in line with the DCFR. For example, the choice was made for an objective standard (intention determined on the basis of statements and conduct) rather than a subjective standard for the valid conclusion of a contract.2 More fundamental reorganization in the sense that defects in consent would be dealt with together with pre-contractual information duties was considered as there are indeed important links, but in the end the more traditional approach was followed and both doctrines were separated.
2. Omissions
Some provisions of the DCFR were omitted. As the Experts were given the task to develop an instrument that was limited in scope and in number of articles, the choice to omit certain issues completely (such as e.g. agency) is defendable. With regard to other provisions, the rationale behind the choices is, however, less clear as it was not so much the whole topic that was left out, but rather specifi c provisions of a topic that is otherwise covered.4 Th us, e.g. chapter 2 section 6 deals with breach of confi dentiality (article 28 ECL (EG)). A defi nition of what is confi dential information is, however, omitted.5 More regrettably, no rule on formal confi rmation of contract between businesses was adopted like in article II.–4:210 DCFR.
