Matthias E. Storme
Goods, supply of digital
content and provision of
related services under
(Draft) CESL
CESL can be used for (Art. 5 Reg.) 3 types of contract or a
combination of them:
a) sales contracts
b) contracts for the supply of digital content
c) related service contracts
Not for contracts including other elements than those 3
Excluded in case of consumer credit incl. in the form of
deferred payment
SALES CONTRACT
= contract for the transfer of ownership of goods for a
price (art. 2 k Reg.)
GOODS
= tangible movable items (2 h Reg.)
Sale includes provision of (movable) goods to be
manufactured !
Also if according to the buyer’s specifications ? Probably
(under CISG and CRD 2011/83 covered)
DIGITAL CONTENT (defined in art. 2 j Reg.)
= Data produced and supplied in digital form
- whether or not according to buyer’s specifications
- 6 exclusions (financial, legal, healthcare, ecommunication, gambling, interacting with creation by
users)
CONTRACTS FOR THE SUPPLY OF DIGITAL CONTENT
- Whether or not supplied on a tangible medium
- Whether or not in exchange for a price
- But 2 requirements:
1° can be stored processed or accessed by the user
2° can be re-used by the user
(Art. 5 b Reg.)
Does not cover “streaming” (different from CRD 2011/83)
RELATED SERVICES CONTRACTS (2 n + 5 c Reg.)
- Service related to goods or digital content
- To be provided by the seller or supplier itself
- Under the sales contract or a separate contract concluded at
the same time
- No separate price required
 Not really an autonomous contract of services
WHICH SERVICES ? (art. 2 n Reg.)
- Related such as installation, maintenance, repair, processing
- Not: Transport*, training, telecommunication support,
financial.
- Quid Hire-purchase, leasing ?
* Excluded in case of related service, included in sale insofar as necessary for
delivery ...
Structure of CESL in relation to the rights and obligations:
Separate chapters and provisions for:
• Obligations seller or supplier of DC
• Obligations buyer of goods or DC
• Obligations Provider of related services (to goods or
DC) (but incomplete)
• Obligations customer of related services (but
incomplete)
Mixed contracts ?
- “Distribution theory” in Art. 9 (1): separate rules apply to
different parts of the contractual relationship (except
that services contract is accessory in case of
termination of sale, art. 147 II)
- Service contracts under CESL are always mixed
contracts (never autonomous)
- Information requirements in MS law transposing
Services Directive 2006/123 remain applicable
(depends on classification as service or not in MS law
...)
Main specificities for DC in exchange for a price (1)
- Art. 91 (obligations seller) : transfer ownership of goods
> transfer tangible medium + ensure that buyer has
right to use in accordance with the contract
(CESL does not categorise the type of right the user has:
treated as a sale even if rather a provision of service, but
ownership only of tangible medium, rights to DC not
specified)
- No minimum rights of buyer of DC; no protection against
disproportionate restrictions of right to use ? (see further)
Main specificities for DC in exchange for a price (1)(cont.)
- Amsterdam study proposed (but not CESL):
* explicit right to back-up copy
* explicit right to private copies
- No protection of right to transfer the DC / right to use
Main specificities for DC in exchange for a price (2)
- Rules on conformity: in principle the same as goods, with a
reservation in 103 (DC not considered as not conforming for the
sole reason that updated DC has become available after the
conclusion of the contract°) + specific rule in art. 105 (4) when duty
to update.
- Application of these rules in B2C contracts:
• default rule in art. 100 (“qualities and performance capabilities the
buyer may expect”) (but 13 (1) abd (20 (1) use “functionality”)
• Agreements derogating are only possible where consumer knew of
the specific condition of the DC and accepted it as being in
conformity with the contract when concluding it (99(3))
• How does this apply to restrictions on use, restrictions on transfer ?
° after delivery would be more correct.
Main specificities for DC in exchange for a price (3):
- Return of DC is not valid as restitution, monetary value
must be paid (173 I) (to be calculated according to 173
(4): amount saved) (it follows that art. 174 on payment
for use does only apply to goods)
- Compare also restrictions to right to withdraw in art. 40
(3) (c) and (d)
Rules mentioning only “goods”:
- Art. 10:4 Buyer’s knowledge of lack of conformity (in
B2B)
- Art. 121: duty to examine
- Art. 122: notification requirement
- Art. 148 (4) service to install goods (installation such
that goods conform to the contract)
Main specificities for DC not in exchange for a price:
- Art. 107: limitation of remedies of DC not in exchange
for a price: only damages for loss or damage caused to
the buyer’s property.
- Art. 130 (early delivery and wrong quantity) does not
apply
- “ no restitution will be made” (174 (6)). (Will ??)
Main specificities for services (1):
- Obligations spelled out separately
- No separate rules on payment, sles rules apply w.a.a.
- No rules on place and time of performance by service
provider
Main specificities for services (2) – remedies
- Basically the same remedies as in sales, but “with
appropriate adaptations”. Not a good technique in an
Optional Instrument with a limited coverage !!
- Right to cure more widely granted (159 (2)) (excluded
largely in consumer sales). But how does this right
relate to termination by consumers ?
- Consumer’s right to decline future performance (Art.
158)
- Broken structure problematic, also because no
definition of non-performance by service provider – Art.
147 does not solve this.
Scope of termination
(not the clearest part !!)
- Regulated in part in art. 9 (2-4), 117, 137, and by
reference with “appropriate adaptations” in 155 and
157, , and also in art. 172 (3) ....
- > problematic .....