An (un)common frame of reference: An American perspective on the jurisprudence of the CESL

This article forms part of a special edition of the Common Market Law Review.

Publishers Abstract:
The European Commission's Proposal for a Common European Sales Law ("CESL") adopts an approach toward the interpretation of contracts between businesses that is strikingly similar to the approach taken by Article 2 of the American Uniform Commercial Code ("Code"). Like the Code, the CESL is deeply legal-realist and subjectivist in its approach to contract negotiation, formation, performance, interpretation, and breach. It relies heavily on usage of trade, good commercial practices, the practices of the parties and other elements of the contracting context to give meaning to contracts and content to its many standard-like default rules.

This essay begins by reviewing evidence from American merchant communities that casts doubt on the idea that trade usages that are geographically coincident with the scope of exchange are as common as the drafters of the Code and the CESL assumed. It then explores the extent to which the CESL will be able to achieve its goals of reducing transaction costs, promoting cross-border trade, and encouraging the emergence and maintenance of cooperative contracting relationships.