VI. Outlook on unifications of law and specifically European law
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The approach of not explicitly defining a sales contract should be maintained in future projects of unification of law. Attempts should be undertaken to describe a sales contract without referring to fields of the law that are not yet unified, specifically property law. Projects to harmonize European law have not taken this route. Article 2(k) of the CESL-draft reads:
“‘sales contract’ means any contract under which the trader (‘the seller’) transfers or undertakes to transfer the ownership of the goods to another person (‘the buyer’), and the buyer pays or undertakes to pay the price thereof”.
340
In a similar manner, Article 2(1) of the Directive (EU) 2019/771 states:
“‘sales contract’ means any contract under which the seller transfers or undertakes to transfer ownership of goods to a consumer, and the consumer pays or undertakes to pay the price thereof”.
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Both wordings may stem from Article IV.A.-1:202 of the DCFR,691 but their incorporation into the CESL-draft and the Directive (EU) 2019/771 respectively overlooks that, in contrast to them, the DCFR does in fact concurrently provide unified rules on property law and the transfer of property. Without a uniform understanding what property is and how it is transferred, including property in the definition of a sales contract can lead to misunderstandings and divergent results with regard to contract characterization as this chapter has attempted to show.
| 691 | “A contract for the ‘sale’ of goods is a contract under which one party, the seller, undertakes to another party, the buyer, to transfer the ownership of the goods to the buyer, or to a third person, either immediately on conclusion of the contract or at some future time, and the buyer undertakes to pay the price.” |
Property in Goods and the CISG (2024), S. 149
