Consumer sales remedies in US and EU comparative perspective / Sanne Jansen.

Format:

Book

Author/Creator:

Jansen, S. (Sanne), author.

Language:

English

Subjects (All):

Sales--United States.

Sales.

United States.

Sales--European Union countries.

Remedies (Law)--United States.

Remedies (Law).

Remedies (Law)--European Union countries.

European Union countries.

Physical Description:

1 online resource (xvii, 191 pages) : digital, PDF file(s)

Place of Publication:

Cambridge : Intersentia, 2018.

System Details:

text file

PDF

Summary:

This book is an in-depth study of the US and EU approaches towards consumer sales remedies. It does not limit itself to a mere comparison of the hierarchy of consumer sales remedies but covers the topic comprehensively, also examining (extra)judicial application of remedies and notification duties. Whereas EU rules prescribe a very strict hierarchy of remedies that are often misunderstood by consumers, and are very favourable towards the remedy of specific performance (or performance in kind), in the US a strong preference for damages can be found. This means that consumers often do not know which remedy they are exactly entitled to or how to invoke it in a correct manner. Learning from both systems, Consumer Sales Remedies in US and EU Comparative Perspective provides a valuable and insightful contribution to the discussion of what the organisation of remedies should look like to best protect consumers. It is written at a time when the EU is considering a 'new' consumer sales Directive, and US scholars are working on the restatement of consumer contract law. It proposes to give consumers a free choice, limited by good faith and proportionality only. Dr Sanne Jansen is a judicial trainee in Antwerp, Belgium and research fellow at the Institute for the Law of Obligations at KU Leuven, Belgium. She is a member of the editorial board of the DCCR and TBH.

Contents:

Chapter 2 Hierarchy of Remedies - So Different and Yet So Alike p. 13

1 EU Consumer Sales Acquis p. 14

1.1 Priority of Repair and Replacement under the Consumer Sales Directive p. 14

1.2 Priority of Repair and Replacement under the Proposal for a Consumer Rights Directive p. 30

1.3 Priority of Specific Performance under the Consumer Rights Directive p. 33

1.4 Withdrawn Proposal on a Common European Sales Law Which Would have Provided a Flat Hierarchy of Remedies in B2C Contracts p. 34

1.5 Priority of Repair and Replacement under the Commission Proposals p. 40

1.6 Conclusion on the Priority of Repair and Replacement p. 45

2 Common Law Approach p. 46

2.2 Common Contract Law p. 47

2.2.1 Priority of Damages p. 47

2.2.1.1 Irreparable Injury Rule, Adequacy, Discretion, and Equitable Defenses p. 47

2.2.1.2 Critique on the Irreparable Injury Rule p. 56

2.2.1.3 Arguments Pro and Contra the Irreparable Injury Rule p. 58

2.2.1.4 Latest Developments of the Irreparable Injury Rule p. 67

2.2.2 Other Factors Influencing the Hierarchy of Remedies p. 69

2.2.3 Conclusion on the Priority of Damages and Restriction of Termination p. 73

2.3 UCC Article 2 p. 73

2.3.1 Priority of Damages p. 76

2.3.2 Other Factors Influencing the Hierarchy of Remedies p. 81

2.3.3 Conclusion on the Priority of Damages and Restriction of Termination p. 88

2.4 Influence of the Magnuson-Moss Warranty Act p. 89

2.5 Conclusion on the Priority of Damages p. 91

3 Comparative Analysis: In Favor of a Free Consumer Choice p. 92

3.1 Contrasting Systems? p. 92

3.2 Proposal for a Free Consumer Choice while Respecting Good Faith p. 96

3.2.1 A Free Choice p. 96

3.2.2 Limited by Good Faith p. 100

3.3 Influence of the Seller's Right to Cure? p. 102

Chapter 3 Self-Help p. 105

1 EU Consumer Sales Acquis p. 105

1.1 Consumer Sales Directive Provides No Clear Guidelines p. 105

1.2 CESL Provides Several Extrajudicial Remedies p. 107

1.3 ODSD/2017 Proposal Provides Several Extrajudicial Remedies p. 108

2 Common Law Approach p. 109

2.1 Suspension and Termination under Common Contract Law p. 111

2.2 Rejection, Revocation, and Cure under UCC Article 2 p. 113

3 Comparative Analysis: Moving Towards More Self-Help p. 115

Chapter 4 Notification Duties p. 117

1 EU Consumer Sales Acquis p. 117

1.1 Consumer Sales Directive p. 117

1.1.1 Optional Duty to Notify of Shortcomings p. 117

1.1.2 No Regulation Governing the Duty to Notify of Remedies p. 118

1.2 CESL p. 120

1.2.1 No Duty to Notify of Shortcomings p. 120

1.2.2 Duty to Notify in Case of Termination p. 121

1.3 ODSD/2017 Proposal p. 123

1.3.1 No Duty to Notify of Shortcomings p. 123

1.3.2 Duty to Notify Only in the Case of Termination p. 123

2 Common Law Approach p. 125

2.1 Common Contract Law p. 125

2.1.1 No General Duty to Notify of Shortcomings p. 125

2.1.2 No General Duty to Notify of Remedies p. 126

2.2 UCC Article 2 p. 128

2.2.1 General Duty to Notify of a Breach (Shortcomings) after Acceptance p. 128

2.2.2 Notifying the Remedies of Rejection, Revocation, and Notifying Cure p. 135

3 Comparative Analysis p. 142

3.1 'Notification Light' for Shortcomings? p. 142

3.1.1 EU Consumer Sales Approach Moving Towards an (Unjustified) Abolishment p. 142

3.1.2 Common Law Approach and the UCC Standard p. 143

3.1.3 Relation with 'Mise en Demeure' p. 143

3.1.4 Arguments in Favor of and Against a Notification Duty of Shortcomings p. 145

3.1.4.1 Opponents of a Notification Duty p. 146

3.1.4.2 In Defense of a Notification Duty p. 149

3.1.5 Fair Balance under a 'Notification Light' p. 155

3.2 Notification Required for Extrajudicial/Self-Help Remedies p. 160

3.2.1 EU Consumer Sales Approach in the Case of Termination p. 160

3.2.2 Required for Self-Help Remedies under a Common Law Approach p. 161

3.2.3 Notifying Extrajudicial Remedies for Fair Balance p. 163.

Notes:

Title from publisher's bibliographic system (viewed on 18 Feb 2019).

Other Format:

Print version:

ISBN:

9781780687629

Access Restriction:

Restricted for use by site license.