European Contract Law at the University of Chicago

Last week I participated in a conference on European contract law organised by the University of Chicago Law School. It took place under auspices of the new Institute for Law and Economics directed by Omri Ben-Shahar. Naturally, the perspective adopted was to look at contract law in Europe (and in particular at the proposed Common European Sales Law) from an economic perspective. Eight European academics and eight colleagues from Chicago discussed in particular the European Commission’s proposal for a common European sales law. It is wonderful that American colleagues have an interest in the European debate and the Chicago meeting proved to be highly interesting. If I were to summarise the general stance of the American colleagues towards this European initiative, it would be that the CESL is not to be continued. The main reason for this is that the economic case in favour of an optional instrument is weak. In addition, also existing consumer protection by way of directives was heavily attacked. This was in particular clear in the papers of Eric Posner and Richard Epstein. In the title of Epstein’s paper, the prominent statement is ‘Why the Common European Sales Law Should Be Scrapped.’ His arguments are threefold. His first point is that harmonisation downward is at least as desirable as harmonisation upward, given that overregulation is a serious risk. Second, the argument of the European Commission in favour of promoting cross-border sales does not hold: coherence      in         individual       transactions   does not require EU-action. In Epstein’s words: ‘For mandatory terms, one possible system is to allow each Member state to articulate the rules that it wishes to impose, so that firms could then pick from that roster the terms that they want, knowing that if these are too one‐sided, they will lose customers to rival firms who select packages that are more favorable to customers. For transactions between SMEs and larger firms, there is no need for intervention at all, as the two parties should (…) let whoever wants specify the background terms of their choice. Third, the Commission’s emphasis on freedom of contract means that it should do what all sound regulators do to achieve this goal: ‘step out of the limelight as quickly as possible.’ There is much to say about these arguments and this is exactly what was done at the conference. All presented papers can be found here. They will be published in the Common Market Law Review in 2013.


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