Projects / Programmes
The Reform of the Sales Contract and modern trends in European Contract Law
| Code |
Science |
Field |
Subfield |
| 5.05.00 |
Social sciences |
Law |
|
| Code |
Science |
Field |
| S110 |
Social sciences |
Juridical sciences |
Law of obligations, contract law, contract of sales, breach of contract, warranty for material defects, legal defects, non-performance, remedies, consumer sale, guarantees, European contract law
Researchers (1)
| no. |
Code |
Name and surname |
Research area |
Role |
Period |
No. of publicationsNo. of publications |
| 1. |
21620 |
PhD Damjan Možina |
Law |
Head |
2008 - 2010 |
0 |
Organisations (1)
Abstract
The contract of sale is not only a key transaction for exchange of goods in market economy and the most frequent contract of all, but also paradigmatic for the entire contract law. Thus it is important that the legal regulation of contract of sale is sound, consistent and integral as well as clear. Because of its importance, sales law was subject to a successful international legal unification (UN Convention on Sale of Goods) and also to a very influential European legal harmonisation (Directive 1999/44/EC on consumer sales).
The project proceed from the assumption, that the regulation of contract of sale in Slovenian law, based on Obligations Code and Consumer Protection Act, is in many ways deficient, incoherent, fragmented and unclear. Also the implementation of the Consumer sales directive is in some points deficient. The deficiencies relate above all to the following problem areas: deficient notion of non-conformity in consumer sales according to Art. 2 par. 2 Directive (so called IKEA-clause); fundamentally different treatment of deficient performance (so called warranty) and non-performance (default, delay) in Slovenian contract law, manifesting itself above all in very different prerequisites and time limits of the creditor’s remedies for breach of contract; short time-limits (cut-off, not prescription) of the seller's liability for latent material defects t (6 months, art. 462 CO) as well as the further time limit for enforcement of rights (1 year after notification, art. 480 CO), which are unusually harsh for the buyer and unique in comparative law; unclear, rigid and unnecesariy complicated regulation of notification of defects to the seller (art. 460-462 CO); disputed regulation of damages for material defects (art. 468 CO); absent regulation of the limits of specific performance (repair, replacement) and it's relation to other remedies as a result of non-implementation of art. 3 par. 3 Directive 99/44; the over-availability of the remedy of termination of the contract (gravity of the breach is not a prerequisite); inadequate regulation of the so called guarantee for proper functioning, above all the existance of mandatory guarantee. The working-hypothesis of the project is that a better, less complicated, clearer and more coherent regulation of contract of sale is possible, based on uniform treatment of all forms of breach of contract.
The project is divided into three phases: the first phase comprises the comparative analysis identifying modern trends and the most appropriate solutions in the field of sales law and connected issues of general contract law in comparative law and unification projects. The second phase is an analysis of domestic law. The third phase is the synthesis of the first two phases, aimed at identifying the need for reform and preparation work for the reform.
Significance for science
The work on the post-doc research project is demonstrated by 22 bibliografic units according to the COBISS-system. Among them the following achievements should be mentioned: The influence of the CISG on the formation of Yugoslav and Slovenian law of obligations has been analyzed; the results were presented on an international conference and in a paper published in a international monographic publication. The influence of projects on European private law on slovenian law has been studied and presented in an international publication. Further, historical background, development and state of the art of European contract law with a focuss on the Common Frame of Reference project, have been presented in a Slovenian scientific article and on several presentations in international conferences. An analysis of Slovenia law of sales has been carried out and included in the Draft Common Frame of Reference Project (2009, national report in Book IV).The chapter of the DCFR on specific performance of contracts has been analysed in a paper, published in a foreign publication. The sales-specific requirements of examination of goods and notification of defects as well as the time limits of the seller's liability for material defects in Yugoslav and Slovenian law have been analysed from a comparative point of view and published in an article abroad. The functions of the subsequent impossibility of performance in law of obligations have been critically analysed in a paper published in Slovenia. The development and the functions of guarantees in Yugoslav and Slovenian law of sales as well as their relation to liability for material defects have been analysed and published in a paper in Slovenia.
Significance for the country
The most important results of the project for the development of Slovenia may be condensed in three points.
1. The project has shown that the Slovenian legislation on contract of sale deviates from the requirements of the EC law in several ways, exposing Slovenia to the claims of the Commission as well as to potentiall liability for damages for breach of EC Law. Possible solutions are being indicated. There are three major critical points: firstly, the Directive 1999/44/ECS has not been fully implemented with regard to the conformity with the contract (art. 2) and remedies of the consumer (art. 3). Secondly, the Directive 1999/44/EC has not been implemented with regard to guarantees (art. 6), furthermore the mandatory guarantee (even) in commercial sales in Slovenia interferes with the free transfer of goods. Thirdly, the Directive 2000/35/EC on payment delays in commercial contracts has not been implemented with regard to start of paying interest when parties have not agreed on due time and with regard to the limitation of contractual freedom concerning payment time and legal consequences of delay. It should be accentuated that civil law measures for ensuring payment discipline are very important especially for Slovenia where this has been a big problem placing a burden mainly on small and medium enterprises.
2. In severaly ways, the law of sales should be improved and simplified regardless of requirements of EC law. In an eventual reform of law of obligations the chapter on breach of contract and remedies should be modernized. The remedies of the buyer in the sales contract (warranty for material defects) should be brought in line with the general contract law and simplified, especially with regard to liability of seller for material defects, notification of defects and time-limits of seller's liability. The notion of subsequent impossibility of performance could be deleted from the notion of breach of contract and represent a mere limitation of a claim for specific performance. A useful model for a modernization is the recently published project on Draft Common Frame of Reference.
3. The background, the development and the state of the art of European projects on harmonisation and unification of law of obligations have been presented to the Slovenian readers.
Most important scientific results
Final report,
complete report on dLib.si
Most important socioeconomically and culturally relevant results
Final report,
complete report on dLib.si
