Interpretation in the Principles of European Contract Law, the Draft Common Frame of Reference and the Common European Sales Law

Summary

INTRODUCTION

No law or other normative ordering at the European level exists for the interpretation of contracts. The closest the European Union (EU) Institutions came to producing a legal instrument containing rules on contract interpretation, was the Proposal for a Common European Sales Law (CESL). The CESL was not adopted. The two succeeding legislative proposals do not deal with interpretation of contracts. Nonetheless, it seems likely that any future European instrument would not stray too far from the interpretation principles and rules set out in the CESL, given that the provisions of the CESL build upon the work carried out in creating the Principles of European Contract Law (PECL) and the Draft Common Frame of Reference (DCFR). To obtain a deeper appreciation of what a pan-European regime for contract interpretation might look like, this chapter considers the rules and principles of interpretation found in the PECL, the DCFR and the CESL.

The aim of the PECL and the DCFR was to create a set of non-binding model rules, following a significant comparative survey of the legal rules of each Member State. The rules of both instruments aim to set out optimum rules on the law of contract, including rules on interpretation, and not simply a compromise among the national rules. That said, many of the rules of the PECL and DCFR and thus the CESL are a compromise or a combination of the rules found in the laws of the Member States. The aim of the CESL was to provide an optional instrument that parties could use to govern their cross-border distance contracts for the sale of goods or supply of digital content. The CESL was not to be a twenty-ninth legal regime within the EU, but rather to provide a second contract law regime within each Member State, that could be utilised by contracting parties to govern their contract.

The rules on interpretation in all three instruments are similar. This is not surprising, given the DCFR progressed and further developed the work that was carried out to produce the PECL. In turn, the work that was carried out in producing the DCFR was used in formulating the CESL.