Limitation of Liability for Damages in European Contract Law

Abstract

The present paper provides a critical assessment, in historical and comparative perspective, of the rules contained in the Chapter on Damages of the proposed Common European Sales Law. It arrives at the following conclusions: (i) The foreseeability rule, entrenched in a number of national legal systems, has been perpetuated on a European level without critical enquiry as to whether it is ideally suited for the purpose for which it was designed. (ii) That Article 161 CESL does not contain a special provision relating to intentional and grossly negligent non-performance is to be welcomed. (iii) The rules on “loss attributable to creditor” and “reduction of loss” are problematic in several respects. The distinction should be abandoned and one uniform rule be drafted under the heading “loss attributable to creditor”. Inspiration can be gained, in particular, from Dutch law, German law, the PICC and the ACQP