| |
Pris: 574 SEK exkl. moms  |  This book fills an important gap in European sales law literature, where sales law is a much-studied object for legal comparatists, while at the same time comprehensive analysis of sales guarantees is largely missing. The volume constitutes one of the key results of a large-scale research project conducted under the auspices of the Study Group on a European Civil Code and, thus, can be seen as the work underlying the Chapter 6 provisions’ on guarantees of the Principles of European Law on Sales (PELS) and the Draft Common Frame of Reference (DCFR).
The book provides an exhaustive analysis of the legal phenomenon of the consumer guarantee, disclosing the competition law roots of the legislation on it, the effects of the Unfair Contract Terms Directive and the Consumer Sales Directive. Furthermore, it studies the solutions adopted in the Consumer Sales Directive and questions their effectiveness.
Hence, the book is absolutely recommendable for any academic or practitioner working in the field of consumer guarantee legislation.
Contents
Preface vii
Chapter I: Introduction
1. General introduction 1
2. The guarantee paradox – the main problem fi elds
2.1 Lack of legislation 4
2.2 Lack of knowledge and lack of distinction 5
2.3 Lack of a legal construction of a guarantee 6
2.4 If it is so problematic why use it? –
the positive aspects of guarantee 6
3. Origins of guarantee – introduction
3.1 Etymology of the word 7
3.2 Origins of the guarantee 7
3.3 Evolution of the guarantee 8
4. Guarantee on the modern market
4.1 General 8
4.2 Fields of guarantee application 9
5. Functions of the guarantee 9
6. Scope of the dissertation and the research question
6.1 Introduction 11
6.2 Why only sales? 12
6.3 Why only consumer sales? 12
6.4 Sales means services these days 13
6.5 Guarantees by producers and guarantees by other parties 13
6.6 Other functions of the guarantee 14
7. The research question and the plan of the thesis 20
8. Methodology 21
Chapter II: The consumer sales guarantee in EU policies
1. From competition law to private law –
consumer sales guarantees in European policies 23
2. Guarantees in competition law
2.1 Introduction 25
2.2 Article 101 (formerly Article 81) 25
2.3 European competition law on consumer sales guarantees –
decisions, cases and resolutions 26
3. Guarantees in consumer programmes
3.1 Opening the discussion 38
3.2 Th e Unfair Contract Terms Directive 40
3.3 Th e Green Paper of 1993 41
3.4 Th e following developments 45
3.5 Th e Consumer Sales Directive 46
3.6 Aft er the Consumer Sales Directive 49
3.7 Further review of the consumer acquis 51
4. Conclusions
4.1 Th e aim of this chapter 54
4.2 What conclusions may be drawn from analysing
the policy steps regarding the guarantee? 54
Chapter III: Consumer sales guarantees – European regulatory
framework
1. Introduction
1.1 General 59
1.2 Regulatory assumptions of the Directive 59
1.3 Analysing the Directive 62
2. Analysis of the Directive’s rules
2.1 Th e scope of the rules on the guarantee in the Directive 63
2.2 General: name, source, legal nature, creation 74
2.3 Contents of the guarantee 79
2.4 Transparency requirements 101
2.5 Infringements 113
2.6 Omitted issues 114
3. Conclusions
3.1 General evaluation 121
3.2 Assumptions of the Directive concerning the guarantee:
are they correct? 122
3.3 Assumptions of the Directive concerning the guarantee:
are they fulfi lled? 122
Chapter IV: Analysis of the consumer sales guarantee – general part
1. Introduction
1.1 General introduction 123
1.2 Th e scope of the analysis 124
2. The name
2.1 Introduction 125
2.2 Order of the analysis 125
2.3 A guarantee: what does it mean? 126
2.4 Th e problems 126
2.5 Variety of names 126
2.6 Reasons for the diff erentiation in terms 128
2.7 Legal and commercial guarantees 128
2.8 Th e proposed solutions 129
2.9 Conclusions: how to avoid confusion? 130
3. The dual nature of the guarantee
3.1 General introduction 131
3.2 Th e scope of the analysis 132
3.3 Th e dual nature of the guarantee: voluntary and obligatory
guarantees 132
3.4 Voluntary guarantees 133
3.5 Content of the voluntary guarantee 133
3.6 Obligatory guarantees 135
3.7 Th e source of the guarantee – a summary 138
4. The legal form of a guarantee
4.1 What is the legal form? 139
4.2 Th e European approach 140
4.3 Why is it important to make such a classifi cation? 142
4.4 Plan of the analysis 142
4.5 Sellers vs. other participants of the commercial chain 143
5. Legal guarantee and commercial guarantee –
internal and external relationships between two regimes
5.1 Introduction 158
5.2 Th e external relationship between the statutory liability regime
(conformity) and guarantee 159
5.3 Th e internal relationship 164
6. Conclusions
6.1 General 166
6.2 Specifi c areas 167
Chapter V: Analysis of the consumer sales guarantee – specifi c part
1. General introduction 169
2. Parties engaged in the guarantee relation
2.1 Introduction 170
2.2 Th e party who off ers the guarantee and the party
who transmits the guarantee to the buyer 171
2.3 Th e seller’s position in a guarantee off ered by the producer 174
2.4 Seller’s guarantee 179
2.5 Th e party who receives the guarantee and the party
who benefi ts from the guarantee 180
2.6 Who performs under the guarantee and who is liable
under the guarantee? 183
3. Coverage of the guarantee
3.1 Introduction 186
3.2 Methods of indicating the scope of the guarantee coverage 186
3.3 Mandatory coverage 188
3.4 Default coverage 188
3.5 Th e minimum content 192
3.6 Establishing the content by reference 192
4. Analysis of the guarantee coverage in the strict sense
4.1 General introduction 202
4.2 Th e coverage in the strict sense 203
5. Remedies of the guarantee
5.1 Introduction 211
5.2 Th e typical remedies 212
5.3 Practicalities of invoking the remedial system 213
6. Free guarantee and guarantee against payment
6.1 Introduction 217
6.2 Should guarantees be for free or against payment? 217
6.3 Where can the guarantor impose a charge (the 3 types)? 220
6.4 Extended guarantees as a form of a guarantee against payment 222
7. Duration of the guarantee
7.1 Introduction 225
7.2 Measuring the duration 226
7.3 Computation of the guarantee duration 229
8. Limitations on the guarantor’s liability under the guarantee 238
8.1 Limitations regarding content 239
8.2 Limitations based on formal requirements 241
8.3 Burden of proof 242
8.4 Conclusions 243
9. Transparency requirements
9.1 Introduction 244
9.2 Why ensuring transparency is important in the case
of guarantees. 245
9.3 Transparency requirements – general overview 246
9.4 Diff erent perspectives of assuring the guarantee’s transparency 247
9.5 Information allowing an informed choice by the consumer 248
9.6 Putting the guarantee in the proper context 253
9.7 Information that allows the enforcement of the guarantee 257
9.8 Th e requirement to “activate” the guarantee 258
9.9 Availability of the guarantee document – general 259
9.10 Language and formulation 264
9.11 What if the transparency requirements are not met? 265
9.12 Where the content of the guarantee should be presented –
in relation to the advertisement – a mention 266
10. Conclusions 267
Chapter VI: Conclusions
1. Introduction 271
2. Overview of the thesis
2.1 Th e aim of the thesis 271
2.2 Overview of the chapters and conclusions drawn on their basis 272
3. General conclusions 276
3.1 Conclusions regarding the Consumer Sales Directive 277
3.2 Conclusion from the point of view of national legal systems 281
3.3 Conclusions regarding the legislative process at the EU level 282
4. Conclusions reaching beyond the scope of research questions 283
Annex
Consumer Sales Guarantees in the European Union –
a summary 285
Garanties bij de verkoop van consumptiegoederen in de
Europese Unie – samenvatting 295
Gwarancja przy sprzedaży konsumenckiej
w Unii Europejskiej – streszczenie 307
Bibliography 321
Official documents 335
Index 341 | | |
|
