Unweaving the CESL: Legal-economic reason and institutional imagination in European contract law

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

Publishers Abstract:
This paper will examine the argument of overregulation, focusing on the relationship of the Common European Sales Law (CESL) to existing national regimes of sales law in the EU. Whereas the introduction of a dual standard for local and cross-border contracts might entail higher transaction costs, it is submitted that CESL's optional nature mitigates possible negative consequences of adding a new instrument of contract law in the EU. Subsequently, the argument that CESL's costs may be higher than its benefits will be addressed.

A response is given to some of the main concerns about CESL's costs and benefits. While recognizing the need for serious contemplation of the cost/benefit picture, it will be suggested that the economic analysis of CESL puts into question the objective underlying the instrument and, more in general, the motivation behind the European Commission's agenda for European contract law. Finally, therefore, the analysis will be broadened to the debate on the social justice dimension of this field of law.

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