Principles of European Law on Service Contracts PEL SC€¦ · · 2018-03-15the Drafting Commitee...

Principles of European Law onService Contracts

(PEL SC)

Principles of European LawStudy Group on a European Civil Code

Service Contracts (PEL SC)

prepared by Professor Maurits BarendrechtProfessor Chris JansenProfessor Marco LoosDr. Dr. Andrea PinnaDr. Rui CascãoStéphanie van Gulijk

in collaboration with the Dutch Working Teamwith advice from the Advisory Council andthe Drafting Commitee and Professor Hugh Beale, London/Warwickapproved by the Co-ordinating Group.

Particular advice on the Drafting of the Articles fromProfessor Eric Clive, Edinburgh.

StæmpfliPublishers Ltd. BerneEuropean Law Publishers

Sellier.

The Dutch Working TeamAmsterdam: Professor Martijn Hesselink; Dr. Jacobien Rutgers, Odavia Bueno Diaz (SpanishLaw), Manola Scotton (Italian Law), Muriel Veldman;Tilburg: Professor Maurits Barendrecht, Professor Chris Jansen, Professor Marco Loos

(Dutch Law), Dr. Dr. Andrea Pinna (French Law), Dr. Rui Cascao (Portuguese Law),Roland Lohnert (German Law, until June 2002), Stephanie van Gulijk (as of December2003);Utrecht: Professor Ewoud Hondius, Dr. John Dickie (English Law, until October 2002), Dr.Viola Heutger, Georgios Arnokouros (Greek Law, until the end of 2002), Dr. Christoph

Jeloschek (Austrian Law), Dr. Hanna Sivesand (Swedish Law), Aneta Wiewiorowska

(Polish Law)

The Advisory Council on Services ContractsProfessor Johnny Herre (Stockholm), Professor Jerome Huet (Paris), Professor Hector

MacQueen (Edinburgh) Professor Ewan McKendrick (Oxford), Professor Peter

Schlechtriem (Freiburg i. Br.)

The Co-ordinating GroupProfessor Guido Alpa (Genua/Rome, until May 2005), Professor Kaspars Balodis (Riga,since December 2004), Professor Christian v. Bar (Osnabr�ck), Professor Maurits

Barendrecht (Tilburg, until May 2005), Professor Hugh Beale (London), Professor Michael

Joachim Bonell (Rome), Professor Mifsud G. Bonnici (Valetta, since December 2004),Professor Carlo Castronovo (Milan), Professor Eric Clive (Edinburgh), Professor Ulrich

Drobnig (Hamburg), Professor Benedicte Fauvarque-Cosson (Paris), Professor Marcel

Fontaine (Leuven, until December 2003), Professor Andreas Furrer (Luzern, sinceDecember 2003), Professor Jacques Ghestin (Paris), Professor Sir Roy Goode (Oxford,until December 2002), Professor Viggo Hagstrøm (Oslo, since June 2002), ProfessorArthur Hartkamp (The Hague, until December 2002), Justitier�det Professor Torgny

Hastad (Stockholm), Professor Johnny Herre (Stockholm), Professor Martijn Hesselink

(Amsterdam), Professor Ewoud Hondius (Utrecht, until May 2005), Professor Jerome

Huet (Paris), Professor Giovanni Iudica (Milan, since June 2004), Dr. Monika Jurcova

(Trnava, since June 2006), Professor Konstantinos Kerameus (Athens), Professor Ole

Lando (Copenhagen), Professor Kare Lilleholt (Bergen, since June 2003), ProfessorBrigitta Lurger (Graz), Professor Hector MacQueen (Edinburgh), Professor Denis Mazeaud

(Paris, since June 2005), Professor Ewan McKendrick (Oxford), Professor Valentinas

Mikelenas (Vilnius, since December 2004), Professor Eoin O’Dell (Dublin, until June2006), Professor Edgar du Perron (Amsterdam), Professor Denis Philippe (Leuven, sinceJune 2004), Professor Jerzy Rajski (Warsaw), Professor Christina Ramberg (Gothenburg),Professor Philippe Remy (Poitiers), Judge Professor Encarna Roca y Trias (Madrid/Barcelona), Professor Peter Schlechtriem (Freiburg i. Br.), Professor Martin Schmidt-Kessel

(Osnabr�ck, since December 2004), Professor Jorge Sinde Monteiro (Coimbra, untilDecember 2004), Professor Lena Sisula-Tulokas (Helsinki), Professor Sophie Stijns

(Leuven), Professor Matthias Storme (Leuven), Professor Jan Svidron (Trnava, June 2005until June 2006), Dr. Stephen Swann (Osnabr�ck), Professor Lubos Tichy (Prague, sinceJune 2005), Professor Verica Trstenjak (Maribor), Professor Vibe Ulfbeck (Copenhagen,since June 2006), Professor Paul Varul (Tartu, since June 2003), Professor Lajos Vekas

(Budapest), Professor Anna Veneziano (Rome)

Further Members of the Study Group’s Advisory CouncilsProfessor John W. Blackie (Strathclyde, Tort Law, Trust Law), Professor Michael G. Bridge

(London, Property Law and Security), Professor Angel Carrasco (Toledo, Security),Professor Pierre Crocq (Paris, Security), Dr. Eugenie Dacoronia (Athens, Tort Law,Leases), Professor Julio Manuel Vieira Gomes (Oporto, Unjustified enrichment law andbenevolent intervention in another’s affairs), Professor Helmut Grothe (Berlin, Lease ofMovables), Professor Jan Kleineman (Stockholm, Tort Law until June 2003), ProfessorIrene Kull (Tartu, Lease of Movables; Gratuitous Contracts, Trust Law), Professor Marco

Loos (Amsterdam, Service Contracts; Mandate), Professor Graham Moffat (Warwick,Trust Law), Professor Maria A.L. Puelinckx-van Coene (Antwerp, Gratuitous Contracts),Professor Palao Moreno (Valencia, Tort Law) Dr. Kristina Siig (Arhus, Unjustifiedenrichment law and benevolent intervention in another’s affairs), Professor Stefano

Troiano (Verona, Gratuitous Contracts), Professor Antoni Vaquer Aloy (Lleida, Lease ofMovables, Gratuitous Contracts), Professor Alain Verbeke (Leuven, Lease of Movables),Professor Anders Victorin (Stockholm, deceased 2006, Lease of Movables), ProfessorSarah Worthington (London, Lease of Movables).

Volume 3

To be cited as: PEL/Barendrecht/Jansen/Loos/Pinna/Cascao/van Gulijk, SC,Gen. Introd. IPEL/Barendrecht/Jansen/Loos/Pinna/Cascao/van Gulijk, SC,Chapter I, Gen. Comments, APEL/Barendrecht/Jansen/Loos/Pinna/Cascao/van Gulijk, SC,Chapter I, Article 1: 101, Comments, APEL/Barendrecht/Jansen/Loos/Pinna/Cascao/van Gulijk, SC,Chapter I, Article 1: 101, Nat. Notes, 1PEL/Barendrecht/Jansen/Loos/Pinna/Cascao/van Gulijk, SC,Chapter I, Article 1: 101, Comp. Notes, 1

ISSN 1860-0905

ISBN-10 3-7272-1801-0 (Staempfli)

ISBN-13 978-3-7272-1801-9 (Staempfli)

ISBN-10 2-8027-2141-0 (Bruylant)

ISBN-13 978-2-8027-2141-3 (Bruylant)

ISBN-10 3-935808-41-0 (Sellier. European Law Publishers)

ISBN-13 978-3-935808-41-5 (Sellier. European Law Publishers)

Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie;

detaillierte bibliografische Daten sind im Internet �ber http:/ /dnb.d-nb.de abrufbar.

� 2007 by Sellier. European Law Publishers, Munich together with

Study Group on a European Civil Code.

Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich gesch�tzt. Jede Verwertung außerhalb der

engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzul�ssig und strafbar. Das

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Foreword

The Study Group on a European Civil Code has taken upon itself the task of draftingcommon European principles for the most important aspects of the law of obligationsand for certain parts of the law of property in moveables which are especially relevantfor the functioning of the common market. It was founded in 1999 as a successor bodyto the Commission on European Contract Law, on whose work the Study Group isbuilding.

The two groups pursue identical aims. However, the Study Group has a more far-reaching focus in terms of subject-matter and as an ultimate goal it aspires to a con-solidated composite text of the material worked out by itself and the Commission onEuropean Contract Law. Both groups have undertaken to ascertain and formulateEuropean standards of ‘patrimonial’ law for the Member States of the European Union.The Commission on European Contract has already achieved this for the field ofgeneral contract law (Lando and Beale [eds.], Principles of European Contract Law, PartsI and II combined and revised, The Hague, 2000; Lando/Clive/Prum/Zimmermann [eds.],Principles of European Contract Law Part III, The Hague, 2003). These Principles ofEuropean Contract Law (PECL) are being adopted with adjustments by the Study Groupon a European Civil Code to take account of new developments and input from itsresearch partners. The Study Group is itself dovetailing its principles with those of thePECL, extending their encapsulation of standards of patrimonial law in three directions:(i) by developing rules for specific types of contracts; (ii) by developing rules for extra-contractual obligations, i.e. the law of tort /delict, the law of unjustified enrichment,and the law of benevolent intervention in another’s affairs (negotiorum gestio); and (iii)by developing rules for fundamental questions in the law on mobile assets – in particulartransfer of ownership and security for credit.

Like the Commission on European Contract Law’s Principles of European ContractLaw, the results of the research conducted by the Study Group on a European CivilCode seek to advance the process of Europeanisation of private law. We have under-taken this endeavour on our own personal initiative and merely present the results of apan-European research project. It is a study in comparative law in so far as we havealways taken care to identify the legal position in the Member States of the EuropeanUnion and to set out the results of this research in the introductions and notes. That ofcourse does not mean that we have only been concerned with documenting the pool ofshared legal values or that we simply adopted the majority position among the legalsystems where common ground was missing. Rather we have consistently striven todraw up “sound and fitting” principles, that is to say, we have also recurrently developedproposals and concepts for the further development of private law in Europe.

The working methods of the Commission on European Contract Law and the StudyGroup on a European Civil Code are or were likewise quite similar. The Study Group,however, has had the benefit of Working (or Research) Teams – groups of younger legalscholars under the supervision of a senior member of the Group (a Team Leader) whichundertook the basic comparative legal research, developed the drafts for discussion and

VII

Foreword

assembled the extensive material required for the notes. Furthermore, to each WorkingTeam was allocated a consultative body – an Advisory Council. These bodies – delib-erately kept small in the interests of efficiency – were formed from leading experts inthe relevant field of law who are representative of the major European legal systems.The proposals drafted by the Working Teams and critically scrutinised and improved ina series of meetings by the respective Advisory Council were submitted for discussion ona revolving basis to the actual decision-making body of the Study Group on a EuropeanCivil Code, the Co-ordinating Group. Until June 2004 the Co-ordinating Group con-sisted of representatives from all the jurisdictions belonging to the EU immediately priorto its enlargement in Spring 2004 and in addition legal scholars from Estonia, Hungary,Norway, Poland, Slovenia and Switzerland. Representatives from the Czech Republic,Malta, Latvia, Lithuania and Slovakia joined us after the June meeting 2004 in Warsaw.However, due to reasons of time and capacity, it was only occasionally possible tosummarise in the notes the current legal position in the new Member States of theEU. We are keen to fill the outstanding gaps (of which we are only too painfully aware)at a later point in time.

Besides its permanent members, other participants in the Co-ordinating Group withvoting rights included all the Team Leaders and – when the relevant material was up fordiscussion – the members of the Advisory Council concerned. The results of thedeliberations during the week-long sitting of the Co-ordinating Group were incorpo-rated into the text of the Articles and the commentaries which returned to the agendafor the next meeting of the Co-ordinating Group (or the next but one depending on thework load of the Group and the Team affected). Each part of the project was the subjectof debate on manifold occasions, some stretching over many years. Where a unanimousopinion could not be achieved, majority votes were taken. As far as possible the Articlesdrafted in English were translated into the other languages either by members of theTeam or third parties commissioned for the purpose. The number of languages intowhich the Articles could be translated admittedly varies considerably from volume tovolume. That is in part a consequence of the fact that not all Working Teams wereequipped with the same measure of financial support. We also had to resign ourselves tothe absence of a perfectly uniform editorial style. Our editing guidelines provided acommon basis for scholarly publication, but at the margin had to accommodate pre-ferences of individual teams. However, this should not cause the reader any problems incomprehension.

Work on these Principles had begun long before the European Commission pub-lished its Communication on European Contract Law (in 2001), its Action Plan for amore coherent European contract law (in 2003), and its follow-up Communication“European Contract Law and the revision of the acquis: the way forward” (in 2004). (Allof these early documents concerning European contract law are still available on theCommission’s website: http:/ /europe.eu.int /comm/consumers /cons_int /safe_shop/fair_bus_pract /cont_law/index_en.htm). These documents for their part were publishedbefore we formed the Network of Excellence, together with other European researchgroups and institutions, which will collaborate in the preparation of an AcademicCommon Frame of Reference with the support of funds from the European Commu-nity’s Sixth Framework Programme. The texts laid before the public by the Study Groupon a European Civil Code are therefore not necessarily identical with those which theNetwork of Excellence will propose to the European Commission. Rather they represent

VIII

Foreword

for the time being texts which the Study Group considers should serve as the startingpoint for the comprehensive process of discussion and consultation envisaged for thecoming years. Whether that process will require any changes to our texts (and, if so,which changes) is something which will have to be weighed up carefully in a spirit ofacademic independence after a review of the arguments. The political domain can thendetermine at a later date which of our proposals, if any, it wishes to take up.

In order to leave no room for misunderstanding, it is important to stress that thesePrinciples have been prepared by impartial and independent-minded scholars whosesole interest has been a devotion to the subject-matter. None of us have been rewardedfor taking part or mandated to do so. None of us would want to give the impression thatwe claim any political legitimation for promoting harmonisation of the law. Our legit-imation is confined to curiosity and an interest in Europe. In other words, the volumesin this series are to be understood exclusively as the results of scholarly legal researchwithin large international teams. Like every other scholarly legal work, they restate thecurrent law and introduce possible models for its further development; no less, but alsono more. We are not a homogenous group whose every member is an advocate of theidea of a European Civil Code. We are, after all, only a Study Group. The questionwhether a European Civil Code is or is not desirable is a political one to which eachmember can only express an individual view.

Osnabr�ck, July 2006 Christian v. Bar

Our Sponsors

The project of the Study Group on a European Civil Code represents a research en-deavour in legal science of extraordinary magnitude. Without the generous financialsupport of many organisations its realisation would not have been possible.

Our thanks go first of all to the Deutsche Forschungsgemeinschaft (DFG), which hassupplied the lion’s share of the financing including the salaries of the Working Teamsbased in Germany and the direct travel costs for the meetings of the Co-ordinatingGroup and the numerous Advisory Councils. The work of the Dutch Working Teamswas financed by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO).

Further personnel costs were met by the Flemish Fonds voor Wetenschappelijk Onderzoek-

Vlaanderen (FWO), the Onassis-Foundation, the Austrian Fonds zur Forderung der wis-

senschaftlichen Forschung and the Fundacao Calouste Gulbenkian.

In addition we have consistently been able to fall back on funds made available tothe respective organisers of the week long sittings of the Co-ordinating Group by therelevant university or other sources within the country concerned. It is therefore withthe deepest gratitude that I must also mention the Consiglio nazionale forense (Rom) andthe Istituto di diritto privato of the Universita di Roma La Sapienza, which co-financed themeeting in Rome (June 2000). The session in Salzburg (December 2000) was supportedby the Austrian Bundesministerium fur Bildung, Wissenschaft und Kultur, the Universitat

Salzburg and the Institut fur Rechtspolitik of the Universitat Salzburg. The discussions inStockholm (June 2001) were assisted by the Department of Law, Stockholm University,

the Supreme Court Justice Edward Cassels Foundation and Stiftelsen Juridisk Fakultetslitter-

atur (SJF). The meeting in Oxford (December 2001) had the support of Shearman &

Sterling, the Hulme Trust, Berwin Leighton Paisner and the Oxford University Press (OUP).The session in Valencia (June 2002) was made possible by the Asociacion Nacional de

Registradores de la Propiedad, Mercantil y Bienes Muebles, the Universitat de Valencia, theMinisterio Espanol de Ciencia y Tecnologıa, the Facultad de Derecho of the Universitat de

Valencia, the Departamento de Derecho Internacional, Departamento de Derecho Civil andthe Departamento de Derecho Mercantil ‘‘Manuel Broseta Pont’’ of the Universitat de

Valencia, the law firm Cuatrecasas, the Generalitat Valenciana, the Corts Valencianes, theDiputacion Provincial de Valencia, the Ayuntamiento de Valencia, the Colegio de Abogados

de Valencia and Aranzadi Publishing Company. The subsequent meeting in Oporto (De-cember 2002) was substantially assisted by the Universidade Catolica Portuguesa – Centro

Regional do Porto. For the week long session in Helsinki (June 2003) we were able to relyon funds from Suomen Kultuurirahasto (Finnish Cultural Foundation), the Niilo Helan-

derin Saatio (Niilo Helander Foundation), the Suomalainen Lakimeisyhdistys (FinnishLawyers Association), the Ministry of Justice and the Ministry for Foreign Affairs, theNordea Bank, Roschier Holmberg Attorneys Ltd., Hannes Snellman Attorneys Ltd., theDepartment of Private Law and the Institute of International Commercial Law (KATTI) of

Helsinki University. The session in Leuven (December 2003) was supported by Katholieke

Universiteit Leuven, Faculteit Rechtsgeleerdheid, and the FWO Vlaanderen Fonds voor We-

tenschappelijk Onderzoek (Flanders Scientific Research Fund). The meeting of the Group

XI

Our Sponsors

in Warsaw (June 2004) was substantially assisted by the Fundacja Fundusz Wspolpracy

(The Cooperation Fund) and the Faculty of Law and Administration of Warsaw University.The meeting in Milan (December 2004) was supported by the Universita Bocconi and itsIstituto di diritto comparato, by the Milan Camera di Commercio, by the Associazione

Civilisti Italiani and by the Comune di Milano. The meeting in Berlin (June 2005) wasmade possible by PricewaterhouseCoopers Deutschland AG, Frankfurt/Berlin; Sievert AG

& Co., Osnabr�ck, and by Verband deutscher Hypothekenbanken e.V., Berlin. The meet-ing in Tartu (December 2005) was supported by the University of Tartu, its Faculty of

Law, its Institute of Law and its Institute of Private Law, by the Estonian Supreme Court,the Ministry of Justice, the Tartu City Government, Iuridicum Foundation, the Law OfficesConcordia, Lepik & Luhaaar, Luiga Mody Haal Borenius, Ots & Co, Aivar Pilv, Aare Raig,

Raidla & Partners, Sorainen, Tark & Co, Teder Glikman & Partners, Paul Varul, Alvin

Rodl & Partner and Lextal Law Firm. The meeting in Oslo (June 2006) was madepossible by the kongelige Justis- og Politidepartement (The Royal Ministry of Justice), bySigvald Bergesen d.y., by hustru Nankis Almennyttige stiftelse, Storebrand and the law firmsWiersholm and BA-HR. We thank all of these organisations and institutions for the fundswhich they made available to us and for the extraordinary warmth of hospitality withwhich our hosts received us.

Osnabr�ck, July 2006 Christian v. Bar

Preface to this volume

The following text on the law of service contracts, hereby presented to the interestedpublic, has been deliberated by the Co-ordinating Group of the Study Group on aEuropean Civil Code during its week-long meetings in Rome (June 2000), Salzburg(December 2000), Stockholm (June 2001), Oxford (December 2001), Valencia (June2002), Oporto (December 202), Helsinki (June 2003) and Leuven (December 2003). Inpreparation of the respective meetings, thorough deliberations with the Advisory Coun-cil of the Working Team have taken place. As the preceding pages clearly show, thistext is very much the result of a collective effort. The Tilburg members of the DutchWorking Team are jointly responsible for the text as it stands, but we had an author foreach Chapter who took the lead: Chris Jansen (Chapter 1 General), Maurits Bare-ndrecht (Chapter 2 Construction), Marco Loos (Chapter 3 Processing and Chapter 4Storage), St�phanie van Gulijk (Chapter 5 Design), Andrea Pinna (Chapter 6 Infor-mation) and Rui Casc¼o (Chapter 7 Treatment).

Drafting common principles on the law of service contracts was a novel experiencefor everyone involved. The existing codes only deal with a limited number of services,so to some extent we had to invent a method of “codification” ourselves. Extensivediscussions in the Co-ordinating Group and in the Advisory Council resulted in aprocedure in which we first identified the most common types of services that tend tocause legal conflicts. This was not an easy task, because it entails an abstraction fromthe thousands of different types of services provided on the market, into a manageablenumber of categories. We identified six categories, of which some are close to legaltradition (construction, storage, and to some extent treatment) and others an answer tochallenges that come from the modern practice of contract law (processing, design,information). Yet other types we identified, e.g representation, intermediation andeducation, we had – at least for the time being – to leave outside the scope of theTeam’s work due to time and financial restraints.

Then, we tried to find the answers the legal systems provide in regard to the mostimportant issues that lead to conflicts in the six categories of service contracts. Thecomparative law material used in this volume has been collected by the Amsterdam,Utrecht and Tilburg members of the Dutch Working Team. The reader will note thatthere are some gaps in this material, in particular because the Dutch Working Team didnot succeed in contracting researchers from Denmark, Scotland, Ireland and Luxem-burg. Moreover, in some jurisdictions it was difficult to find general answers to some ofthe questions we had, highly abstract as they sometimes were. Case law tends to be verycase-specific in this area and the number of general treatises we could rely on was small.

This resulted in a number of draft rules, supported by comparative material. Theserules were extensively discussed in meetings of the Co-ordinating Group and in theAdvisory Council and adjusted if they did not sufficiently reflect the usual approach ofthe issue in the European jurisdictions.

XIII

In the next stage, some general principles were derived from the principles found forthe six categories. These found their way in the General Provisions, which were againdiscussed and improved in several stages. Then, the long process of fine-tuning text,comments and notes began.

We are confident that the principles resulting from this very interactive processgenerally reflect the current approach of legal problems in the area of service contracts.However, the relative lack of legal tradition in this area and the dynamic developmentsin the services economy is something the reader should keep in mind when using theseprinciples. There will be flaws, and issues we missed.

Legislation, case law and doctrine have been stated as of January 2003. We are verygrateful to Andrea Pinna, who was in charge of the process of getting the documentsready for publication. We are also grateful to Hildegard Penn who to our regret did notlive to see this publication printed for the English language check; Valerie Verberne forthe material text editing, Jeanine Leytens for the tables, Jeanette Andersson and Prof.Christina Ramberg for the Swedish translation; Prof. J�r�me Huet for the Frenchtranslation, Prof. Marco Loos for the Dutch translation; Prof. Martin Schmidt-Kessel,Wiss.Mit. Friederike Sch�fer and Wiss.Mit. Sandra Rohlfing for the German transla-tion.

Before publication this text was circulated to stakeholders under the CFR net ex-ercise as part of the European Commission’s contract law programme. However, asexplained in the foreword by Prof. von Bar, their comments could not be reflected inthese texts.

Tilburg, August 2006 Maurits Barendrecht

Preface to this volume

Short Table of Contents

Text of Articles 1


General Introduction 127

Chapter 1: General Provisions

General CommentsRelation to Other Parts of the Principles 131Article 1:101: Scope of Application 139Article 1:102: Price 153Article 1:103: Pre-contractual Duties to Warn 162Article 1:104: Duty to Co-operate 182Article 1:105: Circumstances in which the Service Is to Be Performed 196Article 1:106: Duties of the Service Provider regarding Input 201Article 1:107: General Standard of Care for Services 216Article 1:108: Result Stated or Envisaged by the Client 226Article 1:109: Directions of the Client 235Article 1:110: Contractual Duty of the Service Provider to Warn 246Article 1:111: Variation of the Service Contract 260Article 1:112: Remedies for Breach of Duties of the Service Provider 274Article 1:113: Failure to Notify for Non-Conformity 278Article 1:114: Limitation of Liability 288Article 1:115: Cancellation of the Service Contract 300

Chapter 2: Construction

General Comments 309Relation to Other Parts of the Principles 312Article 2:101: Scope of Application 321Article 2:102: Duty to Co-operate of the Client 329Article 2:103: Duty of Care of the Constructor 335Article 2:104: Conformity 341Article 2:105: Inspection, Supervision and Acceptance 352Article 2:106: Handing over of the Structure 366Article 2:107: Payment of the Price 373Article 2:108: Risks 377Article 2:109: Specific Performance and Cure 385

XV


Article 2:110: Resort to Other Remedies 391Article 2:111: Prescription of Remedies based on Non-Conformity 394

Chapter 3: Processing

General Comments 401Relation to Other Parts of the Principles 404Article 3:101: Scope of Application 412Article 3:102: Duty to Co-operate of the Client 421Article 3:103: Circumstances in which the Service Is to Be Performed 426Article 3:104: Duty of Care of the Processor 433Article 3:105: Conformity 446Article 3:106: Inspection and Supervision 451Article 3:107: Return of the Thing 455Article 3:108: Payment of the Price 461Article 3:109: Risks 466Article 3:110: Specific Performance and Cure 473Article 3:111: Resort to Other Remedies 481Article 3:112: Limitation of Liability 487

Chapter 4: Storage

General Comments 495Relation to Other Parts of the Principles 499Article 4:101: Scope of Application 506Article 4:102: Pre-contractual Duty to Warn of the Client 522Article 4:103: Circumstances in which the Service Is to Be Performed 528Article 4:104: Duties of the Storer regarding Input 533Article 4:105: Duty of Care of the Storer 540Article 4:106: Return of the Thing 551Article 4:107: Conformity 560Article 4:108: Payment of the Price 570Article 4:109: Duty to Give Account 575Article 4:110: Risks 580Article 4:111: Remedies for Non-Conformity 586Article 4:112: Limitation of Liability 591Article 4:113: Liability of the Hotel-Keeper 599

Chapter 5: Design

General Comments 615Relation to Other Parts of the Principles 618Article 5:101: Scope of Application 627Article 5:102: Pre-contractual Duty of the Designer to Warn 638

XVI


Article 5:103: Duty to Co-operate of the Client 643Article 5:104: Duty of Care of the Designer 650Article 5:105: Conformity 662Article 5:106: Handing over of the Design 670Article 5:107: Duty of the Designer to Keep Records 676Article 5:108: Limitation of Liability 680

Chapter 6: Information

General Comments 687Relation to Other Parts of the Principles 690Article 6:101: Scope of Application 700Article 6:102: Circumstances in which the Service Is to Be Performed 714Article 6:103: Duties of the Information Provider regarding Input 720Article 6:104: Duty of Care of the Information Provider 727Article 6:105: Conformity 746Article 6:106: Duty to Give Account 751Article 6:107: Conflict of Interest 759Article 6:108: Influence of Ability of the Client 766Article 6:109: Causation 772

Chapter 7: Treatment

General Comments 781Relation to Other Parts of the Principles 786Article 7:101: Scope of Application 793Article 7:102: Circumstances in which the service Is to Be performed 802Article 7:103: Duties of the Treatment Provider regarding Input 809Article 7:104: Duty of Care of the Treatment Provider 816Article 7:105: Duty to Inform of the Treatment Provider 836Article 7:106: Duty to Inform in case of Unnecessary or

Experimental Treatment 853Article 7:107: Exceptions to the Duty to Inform 858Article 7:108: Duty to Obtain Consent 864Article 7:109: Duty to Give Account 875Article 7:110: Remedies for Non-Performance 891Article 7:111: Central Liability of Treatment Providing Organisations 895

Annexes 901

XVII

Table of Contents

Foreword VII

Our Sponsors XI

Preface to this volume XIII

Text of Articles

English 3Service Contracts

Dutch 26Dienstverleningsovereenkomsten

French 53Contrats de Service

German 77Vertr�ge �ber Dienstleistungen

Swedish 102Avtal om Tj�nster


General Introduction

I. General 127II. Economic Importance 127III. Relation to General Contract Law (PECL) 127IV. Mainly Default Rules: Some Mandatory Protection 129V. Structure of this Part: General and Specific Rules 129VI. External Relationship not Dealt with 129VII. Member States Investigated 130

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Table of Contents Chapter 1: General Provisions

Chapter 1: General Provisions

General CommentsA. General Idea 131B. Scope of Application 132C. Basic Principles 133D. Terminology 135E. Sources 135

Relation to Other Parts of the PrinciplesF. Relation to the Principles of European Contract Law 137G. Relation to the Principles of European Sales Law and

the Principles of European Law on Commercial Agency,Franchising and Distribution Contracts 137

H. Relation to Chapters 2 to 7 of this Part of the Principles 137I. Character of the Rules 139

Article 1:101: Scope of Application

CommentsA. General Idea 140B. Interests at Stake and Policy Considerations 142C. Comparative Overview 142D. Preferred Option 143E. Relation to PECL and Other Parts of the Principles 143F. Relation to the Principles of European Sales Law 143G. Relation to the Principles of European Law on Commercial

Agency, Franchising and Distribution Contracts 146H. Relation to Other Chapters of the Principles of

European Law on Service Contracts 147I. Character of the Rule 147J. Remedies 148

Comparative Notes1. Legal qualification of (PELSC) services in (specific) contract law 148

National Notes1. Legal qualification of PELSC services in (specific) contract law 149

Article 1:102: Price

CommentsA. General Idea 154B. Interests at Stake and Policy Considerations 155C. Comparative Overview 155

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Chapter 1: General Provisions Table of Contents

D. Preferred Option 156E. Relation to PECL and Other Parts of the Principles 156F. Relation to Other Chapters of this Part of the Principles 157G. Burden of Proof 157H. Character of the Rule 157I. Remedies 157

Comparative Notes1. The service provider is entitled to payment of a price 1582. Determination of price according to service contract law 158

National Notes1. The service provider is entitled to payment of a price 1592. Determination of price according to service contract law 160

Article 1:103: Pre-contractual Duties to Warn

CommentsA. General Idea 163B. Interests at Stake and Policy Considerations 167C. Comparative Overview 169D. Preferred Option 169E. Relation to PECL and Other Parts of the Principles 172F. Relation to Other Chapters of this Part of the Principles 172G. Burden of Proof 176H. Character of the Rule 176I. Remedies 177

Comparative Notes1. Pre-contractual duties to warn in (services) contract law 178

National Notes1. Pre-contractual duties to warn in (services) contract law 179

Article 1:104: Duty to Co-operate

CommentsA. General Idea 183B. Interests at Stake and Policy Considerations 186C. Comparative Overview 187D. Preferred Option 188E. Relation to PECL and Other Parts of the Principles 189F. Relation to Other Chapters of this Part of the Principles 189G. Character of the Rule 190H. Remedies 190

XXI


Comparative Notes1. The client’s specific duties to co-operate under a service contract 1912. The service provider’s duty to co-operate 192

National Notes1. The client’s specific duties to co-operate under a service contract 1922. The service provider’s duty to co-operate 195

Article 1:105: Circumstances in which the Service Is to Be Performed


Comparative Notes1. The duty of the service provider to take into account the circumstances

in which the service has to be performed 201

Article 1:106: Duties of the Service Provider regarding Input


Comparative Notes1. Performance of the service through subcontractors 2102. Quality of tools and materials used in the course of the service 210

National Notes1. Performance of the service through subcontractors 2112. Quality of tools and materials used in the course of the service 214

XXII


Article 1:107: General Standard of Care for Services


Comparative Notes1. The duty of care of the service provider in (specific) contract law 223

National Notes1. The duty of care of the service provider in (specific) contract law 224

Article 1:108: Result Stated or Envisaged by the Client


Comparative Notes1. The duty of the service provider to achieve the specific result stated

or envisaged by the client at the time of the conclusion of the contract 233

National Notes1. The duty of the service provider to achieve the specific result stated

or envisaged by the client at the time of the conclusion of the contract 233

Article 1:109: Directions of the Client

CommentsA. General Idea 236B. Interests at Stake and Policy Considerations 237

XXIII


C. Comparative Overview 238D. Preferred Option 239E. Relation to PECL and Other Parts of the Principles 240F. Relation to Other Chapters of this Part of the Principles 240G. Character of the Rule 241H. Remedies 241

Comparative Notes1. The duty of the service provider to follow the client’s directions 2422. Disculpation of the service provider in the event of inadequate

directions of the client 243

National Notes1. The duty of the service provider to follow the client’s directions 2432. Disculpation of the service provider in the event of inadequate

directions of the client 244

Article 1:110: Contractual Duty of the Service Provider to Warn


Comparative Notes1. The contractual duty to warn of the service provider in

(specific) contract law 2552. Consequences in case of breach of the duty to warn 255

National Notes1. The contractual duty to warn of the service provider in

(specific) contract law 2562. Consequences in case of breach of the duty to warn 258

Article 1:111: Variation of the Service Contract

CommentsA. General Idea 260B. Interests at Stake and Policy Considerations 264

XXIV


C. Comparative Overview 265D. Preferred Option 266E. Relation to PECL and Other Parts of the Principles 266F. Relation to Other Chapters of this Part of the Principles 267G. Burden of Proof 267H. Character of the Rule 268I. Remedies 268

Comparative Notes1. External cost-increasing circumstances and (specific) contract law 2682. Change of the service ordered by the client 269

National Notes1. External cost-increasing circumstances and (specific) contract law 2692. Change of the service ordered by the client 272

Article 1:112: Remedies for Breach of Duties of the Service Provider


Comparative Notes 278

Article 1:113: Failure to Notify for Non-Conformity


Comparative Notes1. The duty to notify of the client in (specific) contract law 2852. Consequences in case of failure to notify 285

XXV


National Notes1. The duty to notify of the client in (specific) contract law 2852. Consequences in case of failure to notify 287

Article 1:114: Limitation of Liability


Comparative Notes1. Limitation or exclusion of liability for death or personal injury 2922. Limitation or exclusion of liability for damage other than death or

personal injury 293

National Notes1. Limitation or exclusion of liability for death or personal injury 2942. Limitation or exclusion of liability for damage other than death or

personal injury 295

Article 1:115: Cancellation of the Service Contract


Comparative Notes1. The right of the client to cancel the service in (specific) contract law 3042. Consequences in case of cancellation of the service by the client 304

XXVI

Chapter 2: Construction Table of Contents

National Notes1. The right of the client to cancel the service in (specific) contract law 3052. Consequences in case of cancellation of the service by the client 306

Chapter 2: Construction

General CommentsA. General Idea 309B. Scope of Application 309C. Basic Principles 309D. Terminology 311E. Sources of the Rules 311

Relation to Other Parts of the PrinciplesF. Relation to the Principles of European Contract Law (PECL) in General 312G. Relation to Article 7:102 PECL (Time of Performance) 312H. Relation to Chapter 1 (General Provisions): General Remark 313I. Relation to Article 1:102 (Price) 313J. Relation to Article 1:103 (Pre-contractual Duties to Warn) 314K. Relation to Article 1:105 (Circumstances in which the Service Is to

Be Performed) 315L. Relation to Article 1:106 (Duties of the Service Provider regarding Input) 316M. Relation to Article 1:109 (Directions of the Client) 316N. Relation to Article 1:110 (Contractual Duty of the

Service Provider to Warn) 317O. Relation to Article 1:111 (Variation of the Service Contract) 317P. Relation to Article 1:112 (Remedies for Breach of Duties of

the Service Provider) 318Q. Relation to Article 1:113 (Failure to Notify for Non-Conformity) 318R. Relation to Article 1:114 (Limitation of Liability) 319S. Relation to Article 1:115 (Cancellation of the Service Contract) 319T. Relation to Other Chapters on Specific Services: Design and Processing 319U. Relation to the Principles of European Sales Law (PELS) 320V. Character of the Rules 321


CommentsA. General Idea 321B. Interests at Stake and Policy Considerations 322C. Comparative Overview 322D. Preferred Option 322E. Relation to PECL and PELS 323

XXVII

Table of Contents Chapter 2: Construction

F. Design by the Client or the Constructor 324G. Construction Work on Existing Immovables or Processing? 324H. Character of the Rule 325I. Remedies 325

Comparative Notes1. Scope of the Rules on Construction 3252. Standard Conditions 326

National Notes1. Scope of the Rules on Construction 3262. Standard Conditions 328

Article 2:102: Duty to Co-operate of the Client

CommentsA. General Idea 329B. Interests at Stake and Policy Considerations 330C. Comparative Overview 330D. Preferred Option 331E. Relation to PECL and Other Parts of the Principles 331F. Other Issues for Co-operation 331G. Character of the Rule 332H. Remedies 332

Comparative Notes1. Duty to Co-operate in General 3322. Duty to Give Access 332

National Notes1. Duty to Co-operate in General 3322. Duty to Give Access 334

Article 2:103: Duty of Care of the Constructor

CommentsA. General Idea 335B. Interests at Stake and Policy Considerations 335C. Comparative Overview 336D. Preferred Option 336E. Relation to PECL and Other Parts of the Principles 336F. Nuisance 337G. Burden of Proof 337H. Character of the Rules 337I. Remedies 337

XXVIII


Comparative Notes1. General Standard of Care 3372. Prevention of damage to (the existing part of the structure) and

to other persons and goods 338

National Notes1. General Standard of Care 3382. Prevention of damage to (the existing part of the structure) and

to other persons and goods 340

Article 2:104: Conformity

CommentsA. General Idea 341B. Interests at Stake and Policy Considerations 342C. Comparative Overview 343D. Preferred Option 344E. Relation to PECL and Other Parts of the Principles 345F. Terminology 346G. Relying on Incompetence? 346H. Specific Purpose 347I. Burden of Proof 348J. Character of the Rule 348K. Remedies 348

Comparative Notes1. Fitness for purpose 348

National Notes1. Fitness for purpose 349

Article 2:105: Inspection, Supervision and Acceptance

CommentsA. General Idea 352B. Interests at Stake and Policy Considerations 353C. Comparative Overview 354D. Preferred Option 354E. Relation to PECL and Other Parts of the Principles 354F. Constructor Relying on the Knowledge of the Client or Supervisor 355G. Burden of Proof 356H. Character 356I. Remedies 357

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Table of Contents Chapter 2: Construction

Comparative Notes1. Right to Supervise and Inspect During the Performance of the Service? 3572. Obligation to Inspect the Finalised Structure? 3573. Liability for Defects not noticed during Inspection 3574. Inadequate Performance of Agreed Duty to Supervise: Defence or

Contributory Negligence? 358

National Notes1. Right to Supervise and Inspect During the Performance of the Service? 3592. Obligation to Inspect the Finalised Structure? 3603. Liability for Defects not Noticed during Inspection 3624. Inadequate Performance of Agreed Duty to Supervise: Defence or

Contributory Negligence? 365

Article 2:106: Handing over of the Structure

CommentsA. General Idea 367B. Interests at Stake and Policy Considerations 367C. Comparative Overview 368D. Preferred Option 369E. Relation to PECL and Other Parts of the Principles 370F. Burden of Proof 370G. Character 370H. Remedies 370

Comparative Notes1. Procedure of Handing over of the Structure: Delivery and Acceptance 371

National Notes1. Procedure of Handing over of the Structure: Delivery and Acceptance 371

Article 2:107: Payment of the Price

CommentsA. General Idea 373B. Interests at Stake and Policy Considerations 374C. Comparative Overview 374D. Preferred Option 374E. Relation to PECL and Other Parts of the Principles 375F. Character of the Rule 375G. Remedies 375

XXX


Comparative Notes1. Moment of Payment of the Price 375

National Notes1. Moment of Payment of the Price 376

Article 2:108: Risks

CommentsA. General idea 377B. Interests at Stake and Policy Considerations 378C. Comparative Overview 378D. Preferred Option 379E. Relation to PECL and Other Parts of the Principles 380F. Burden of Proof 380G. Character of the Rule 380H. Remedies 381

Comparative Notes1. General System of Risk 3812. Risk as to Materials and Goods Provided by Other Party 381

National Notes1. General System of Risk 3812. Risk as to Materials and Goods Provided by Other Party 384

Article 2:109: Specific Performance and Cure

CommentsA. General Idea 386B. Interests at Stake and Policy Considerations 387C. Comparative Overview 387D. Preferred Option 387E. Restrictions to the Right to Cure 388F. Relation to PECL and Other Parts of the Principles 389G. Character of the Rule 389H. Remedies 389

Comparative Notes1. Specific Performance 389

National Notes1. Specific Performance 390

XXXI

Table of Contents Chapter 3: Processing

Article 2:110: Resort to Other Remedies

CommentsA. General Idea 391B. Interests at Stake and Policy Considerations 392C. Comparative Overview 392D. Preferred Option: Exceptions to the Right to Termination 392E. Relation to PECL and Other Parts of the Principles 392F. Character of the Rule 393G. Remedies 393

Comparative Notes1. Right to Cure 393

National Notes1. Right to Cure 393

Article 2:111: Prescription of Remedies based on Non-Conformity


Comparative Notes1. Limitation Period for Actions based on Defects 397

National Notes1. Limitation Period for Actions based on Defects 397

Chapter 3: Processing

General CommentsA. General Idea 401B. Scope of Application of this Chapter 401C. Basic Principles 401D. Terminology 403E. Sources 403

Relation to Other Parts of the PrinciplesF. Relation to Principles of European Contract Law (PECL) in General 404

XXXII

Chapter 3: Processing Table of Contents

G. Relation to Chapter 1 (General Provisions) of the Principles ofEuropean Law on Service Contracts (PELSC) in General 405

H. Relation to Article 1:102 (Price) 405I. Relation to Article 1:103 (Pre-contractual Duties to Warn) 406J. Relation to Article 1:106 (Duties of the Service Provider regarding Input) 407K. Relation to Article 1:109 (Directions of the Client) 407L. Relation to Article 1:110 (Contractual Duty of the Service

Provider to Warn) 408M. Relation to Article 1:111 (Variation of the Service Contract) 409N. Relation to Article 1:112 (Remedies for Breach of Duties of the

Service Provider) 409O. Relation to Article 1:113 (Failure to Notify for Non-Conformity) 410P. Relation to Article 1:115 (Cancellation of the Service Contract) 410Q. Relation to Chapters 2 (Construction) and 4 (Storage) 410R. Relation to Principles of European Law on Sales (PELS) 412S. Mandatory or Default Rule 412


CommentsA. General Idea 413B. Interests at Stake and Policy Considerations 413C. Comparative Overview 414D. Preferred Option 414E. Relation to PECL and Other Parts of the Principles 414F. Scope of Application of the Rules 415G. Character of the Rule 417H. Remedies 417

Comparative Notes1. Place in existing codes /statutes /case law 4172. Application to immovable and movable goods? 4173. Application of rules to gratuitous processing services 418

National Notes1. Place in existing codes /statutes /case law 4182. Application to movable and immovable goods? 4193. Application of rules to gratuitous processing services 420


CommentsA. General Idea 421B. Interests at Stake and Policy Considerations 421C. Comparative Overview 422

XXXIII


D. Preferred Option 422E. Relation to PECL and Other Parts of the Principles 422F. Specific Duties to Co-operate for Processing Contracts 423G. Burden of Proof 423H. Character of the Rule 423I. Remedies 423

Comparative Notes1. Client’s obligation to hand over (the control over) the good or

give access to the good on time 424

National Notes1. Client’s obligation to hand over (the control over) the good or

give access to the good on time 424


CommentsA. General Idea 426B. Interests at Stake and Policy Considerations 426C. Comparative Overview 427D. Preferred Option 427E. Relation to PECL and Other Parts of the Principles 428F. Specific Duty as to Existing Circumstances in Processing Contracts 428G. Burden of Proof 429H. Character of the Rule 429I. Remedies 429

Comparative Notes1. Processor’s duty to collect information and to investigate the good 4292. Duty to warn for specific dangers 430

National Notes1. Processor’s duty to collect information and to investigate the good 4302. Duty to warn for specific dangers 431

Article 3:104: Duty of Care of the Processor

CommentsA. General Idea 433B. Interests at Stake and Policy Considerations 433C. Comparative Overview 434D. Preferred Option 434E. Relation to PECL and Other Parts of the Principles 435F. Prevention of Occurrence of Damage to the Thing 437

XXXIV


G. No Breach of Duty of Care when Warned 437H. Infliction of Damage Needed for Proper Performance of Contract 438I. Prevention of Damage Caused by External Events 438J. Occurrence of Personal Injury or Damage to Other Things 439K. Burden of Proof 439L. Character of the Rule 439M. Remedies 439

Comparative Notes1. Standard of care 4402. Liability if damage to good occurs, unless warned or inevitable 4403. Liability in case of damage to other goods of the client 441

National Notes1. Standard of care 4412. Liability if damage to good occurs, unless warned or inevitable 4433. Liability in case of damage to other goods of the client 444


CommentsA. General Idea 446B. Interests at Stake and Policy Considerations 446C. Comparative Overview 447D. Preferred Option 447E. Relation to PECL and Other Parts of the Principles 447F. Burden of Proof 448G. Character of the Rule 448H. Remedies 449

Comparative Notes1. Process normally leading to result in conformity with contract:

obligation of result or means 449

National Notes1. Process normally leading to result in conformity with contract:

obligation of result or means 449

Article 3:106: Inspection and Supervision

CommentsA. General Idea 451B. Interests at Stake and Policy Considerations 451C. Comparative Overview 452D. Preferred Option 452

XXXV


E. Relation to PECL and Other Parts of the Principles 453F. Burden of Proof 453G. Character of the Rule 453H. Remedies 453

Comparative Notes1. Right to inspect 454

National Notes1. Right to inspect 454

Article 3:107: Return of the Thing


Comparative Notes1. Acceptance of the return of the good: consequences for claim

for non-performance 459

National Notes1. Acceptance of the return of the good: consequences for claim

for non-performance 460


CommentsA. General idea 462B. Interests at Stake and Policy Considerations 462C. Comparative Overview 462D. Preferred Option 463E. Relation to PECL and Other Parts of the Principles 463F. Long-Term Processing Contract 463G. Burden of Proof 464H. Character of the Rule 464I. Remedies 464

XXXVI


Comparative Notes1. Moment when payment is due 464

National Notes1. Moment when payment is due 464


CommentsA. General Idea 467B. Interests at Stake and Policy Considerations 468C. Comparative Overview 468D. Preferred Option 468E. Relation to PECL and Other Parts of the Principles 469F. Risks in the Case of Destruction or Deterioration of the

Thing in Processing Contracts 470G. Burden of Proof 471H. Character of the Rule 471I. Remedies 471

Comparative Notes1. General system of risk 471

National Notes1. General system of risk 472

Article 3:110: Specific Performance and Cure

CommentsA. General Idea 474B. Interests and Policy Considerations 474C. Comparative Overview 474D. Preferred Option 475E. Relation to PECL and Other Parts of the Principles 475F. Restrictions to Right to Cure 477G. Period for Specific Performance and Cure 477H. Burden of Proof 477I. Character of the Rule 478J. Remedies 478

Comparative Notes1. Specific performance in processing contracts 4782. Processor has right to cure the defect? 478

XXXVII


National Notes1. Specific performance in processing contracts 4792. Processor has right to cure the defect? 480

Article 3:111: Resort to Other Remedies

CommentsA. General Idea 481B. Interests and Policy Considerations 482C. Comparative Overview 482D. Preferred Option 482E. Relation to PECL and Other Parts of the Principles 482F. Burden of Proof 483G. Character of the Rule 483H. Remedies 483

Comparative Notes1. Price reduction and termination 4842. Damages 484

National Notes1. Price reduction and termination 4842. Damages 486


CommentsA. General Idea 487B. Interests at Stakes and Policy Considerations 488C. Comparative Overview 489D. Preferred Option 489E. Relation to PECL and Other Parts of the Principles 490F. Burden of Proof 491G. Character of the Rule 492H. Remedies 492

Comparative Notes1. Limitation of the processor’s liability to the processor’s fee or to a

fixed amount 492

National Notes1. Limitation of the processor’s liability to the processor’s fee or to a

fixed amount 493

XXXVIII

Chapter 4: Storage Table of Contents

Chapter 4: Storage


Relation to Other Parts of the PrinciplesF. Relation to Principles of European Contract Law (PECL) in General 499G. Relation to Article 1:202 PECL (Duty to Co-Operate) 499H. Relation to Chapter 1 of Principles of European Law on

Service Contracts (PELSC) in General 500I. Relation to Article 1:102 (Price) 500J. Relation to Article 1:104 (Duty to Co-operate) 501K. Relation to Article 1:109 (Directions of the Client) 502L. Relation to Article 1:110 (Contractual Duty of

the Service Provider to Warn) 502M. Relation to Article 1:111 (Variation of the Service Contract) 503N. Relation to Article 1:112 (Remedies for Breach of

Duties of the Service Provider) 503O. Relation to Article 1:113 (Failure to Notify for Non-Conformity) 504P. Relation to Article 1:115 (Cancellation of the Service Contract) 504Q. Relation to Construction and Processing, and International

Conventions on Transportation 505R. Mandatory or Default Rule 505


CommentsA. General Idea 506B. Interests at Stake and Policy Considerations 507C. Comparative Overview 508D. Preferred Option 509E. Relation to PECL and Other Parts of the Principles 511F. Scope of Application of the Rules 511G. Character of the Rule 513H. Remedies 514

Comparative Notes1. Place in existing codes /laws 5142. Handing over of good required for conclusion of contract? 5143. Gratuitous and remunerated contracts 5154. Application or exclusion of storage rules in specific cases 5155. Application to other duties to store 515

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Table of Contents Chapter 4: Storage

National Notes1. Place in existing codes /laws 5162. Handing over of good required for conclusion of contract? 5173. Application of rules to gratuitous services 5184. Application or exclusion of storage rules in specific cases 5195. Application to other duties to store 520

Article 4:102: Pre-contractual Duty to Warn of the Client


Comparative Notes1. Client’s obligation to warn for specific dangers and consequences

of breach thereof 526

National Notes1. Client’s obligation to warn for specific dangers and consequences

of breach thereof 526



Comparative Notes1. Storehouse’s obligation to collect information and to investigate the good 531

National Notes1. Storehouse’s obligation to collect information and to investigate the good 532

XL


Article 4:104: Duties of the Storer regarding Input


Comparative Notes1. Location for execution of the service 5372. Subcontracting 537

National Notes1. Location for execution of the service 5382. Subcontracting 539

Article 4:105: Duty of Care of the Storer


Comparative Notes1. Precautionary measures to prevent deterioration or destruction of the good 5462. Excuses and burden of proof 5463. Use of good by storehouse 546

National Notes1. Precautionary measures, excuses and burden of proof 5472. Use of good by storehouse 550

XLI


Article 4:106: Return of the Thing


Comparative Notes1. Condition of the good upon return; burden of proof in case of damage 557

National Notes1. Condition of the good upon return; burden of proof in case of damage 557



Comparative Notes1. Storehouse’s obligation to return the good within reasonable

time after request 5652. Client’s obligation to accept the return of the good 5653. Right for storehouse to sell the good in case of failure to accept the good? 5664. Fruits of the good 566

National Notes1. Storehouse’s obligation to return the good within reasonable

time after request 5662. Client’s obligation to accept the return of the good 5683. Right for storehouse to sell the good in case of failure to accept the good? 5694. Fruits of the good 570

XLII




Comparative Notes1. Moment when payment is due 5732. Storehouse’s right of retention in case of non-payment 573

National Notes1. Moment when payment is due 5742. Storehouse’s right of retention in case of non-payment 574

Article 4:109: Duty to Give Account


Comparative Notes1. Storehouse’s obligation to inform of condition of good and

precautions to be taken 579

National Notes1. Storehouse’s obligation to inform of condition of good and

precautions to be taken 579


CommentsA. General Idea 581B. Interests at Stake 582

XLIII


C. Comparative Overview 582D. Preferred Option 582E. Relation to PECL and Other Parts of the Principles 583F. Risks in the Case of Destruction of or Damage to the Thing in

Storage Contracts 584G. Burden of Proof 584H. Character of the Rule 585I. Remedies 585

Comparative Notes1. Specific performance in storage contracts 585

National Notes1. Specific performance in storage contracts 585

Article 4:111: Remedies for Non-Conformity


Comparative Notes1. Price reduction and termination 5892. Damages 589

National Notes1. Price reduction and termination 5892. Damages 590

Article 4:112: Limitation of LiabilityA. General Idea 591B. Interests at Stake and Policy Considerations 593C. Comparative Overview 593D. Preferred Option 593E. Relation to PECL and Other Parts of the Principles 594F. Burden of Proof 595G. Character of the Rule 596H. Remedies 596

XLIV

Chapter 5: Design Table of Contents

Comparative Notes1. Limitation of liability in case of damage caused

intentionally or grossly negligent 5962. Limitation in commercial cases 5963. Limitation in consumer cases 597

National Notes1. Limitation of liability? 597

Article 4:113: Liability of the Hotel-Keeper

CommentsA. General Idea 600B. Interests at Stake and Policy Considerations 602C. Comparative Overview 603D. Preferred Option 604E. Relation to PECL and Other Parts of the Principles 606F. Relation to the Convention on the Liability of Hotel-Keepers

concerning the Property of Their Guests 607G. Burden of Proof 608H. Character of the Rule 608I. Remedies 608

Comparative Notes1. Application of storage rules to hotel-keepers 6082. Specific limitations to the hotel-keeper’s liability 6093. Specific right to withhold return of goods for hotel-keeper 609

National Notes1. Application to hotel-keepers and other providers of places of

temporary private residence 6092. Specific limitations to the hotel-keeper’s liability 6113. Specific right to withhold return of goods for hotel-keeper 612

Chapter 5: Design


XLV

Table of Contents Chapter 5: Design

Relation to Other Parts of the PrinciplesF. Relation to Principles of European Contract Law (PECL) in General 618G. Relation to Chapter 1 of the Principles of European Law on

Service Contracts (PELSC) in General 618H. Relation to Article 1:102 (Price) 618I. Relation to Article 1:105 (Circumstances in which the

Service Is to Be Performed) 619J. Relation to Article 1:106 (Duties of the Service Provider regarding Input) 620K. Relation to Article 1:109 (Directions of the Client) 621L. Relation to Article 1:110 (Contractual Duty of the

Service Provider to Warn) 622M. Relation to Article 1:111 (Variation of the Service Contract) 623N. Relation to Article 1:112 (Remedies for Breach of Duties of the

Service Provider) 624O. Relation to Article 1:113 (Failure to Notify for Non-Conformity) 625P. Relation to Article 1:115 (Cancellation of the Service Contract) 626Q. Relation to other Chapters of the Principles of European Law on

Service Contracts (PELSC) in General 627R. Character of the Rules 627


CommentsA. General Idea 628B. Interests at Stake and Policy Considerations 628C. Comparative Overview 629D. Preferred Option 629E. Relation to PECL and Other Parts of the Principles 630F. Design and Construction 630G. Design and Supervision 631H. Character of the Rule 631I. Remedies 631

Comparative Notes1. Regulation of design contracts in the existing codes /laws 6312. Standard conditions on design contracts 632

National Notes1. Regulation of design contracts in the existing codes /laws 6332. Standard conditions on design contracts 636

XLVI

Chapter 5: Design Table of Contents

Article 5:102: Pre-contractual Duty of the Designer to Warn

CommentsA. General Idea 638B. Interests at Stake and Policy Considerations 638C. Comparative Overview 639D. Preferred Option 639E. Relation to PECL and other Parts of the Principles 639F. Character of the Rule 640G. Remedies 641

Comparative Notes1. Pre-contractual duty to warn 641

National Notes1. Pre-contractual duty to warn 642


CommentsA. General Idea 643B. Interests at Stake and Policy Consideration 644C. Comparative Overview 644D. Preferred Option 644E. Relation to PECL and Other Parts of the Principles 645F. Character of the Rule 646G. Remedies 646

Comparative Notes1. Duty to co-operate of the client in design contracts 6462. Specific regulation on the employment of experts 647

National Notes1. Duty to co-operate of the client in design contracts 6472. Specific regulation on the employment of experts 649

Article 5:104: Duty of Care of the Designer

CommentsA. General Idea 651B. Interests at Stake and Policy Consideration 652C. Comparative Overview 653D. Preferred Option 653

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Table of Contents Chapter 5: Design

E. Relation to PECL and Other Parts of the Principles 654F. Character of the Rules 655G. Remedies 655

Comparative Notes1. Duty of care of the designer 6552. Specific rules on the duty of care 656

National Notes1. Duty of care of the designer 6572. Specific rules on the duty of care 659



Comparative Notes1. Conformity of the design 667

National Notes1. Conformity of the design 668

Article 5:106: Handing over of the Design

CommentsA. General Idea 670B. Interests at Stake and Policy Consideration 671C. Comparative Overview 671D. Preferred Option 672E. Relation to PECL and Other Parts of the Principles 672F. Burden of Proof 673G. Character of the Rule 673H. Remedies 674

Comparative Notes1. Handing over of the design 674

XLVIII

Chapter 6: Information Table of Contents

National Notes1. Handing over of the design 675

Article 5:107: Duty of the Designer to Keep Records


Comparative Notes1. Duty to keep records 679

National Notes1. Duty to keep records 679



Comparative Notes1. Limitation of the designer’s liability 683

National Notes1. Limitation of the designer’s liability 684

Chapter 6: Information

General CommentsA. General Idea 687B. Scope of Application 687C. Basic Principles 688

XLIX

Table of Contents Chapter 6: Information

D. Terminology 689E. Sources of the Rules 689

Relation to Other Parts of the PrinciplesF. Relation to the Principles of European Contract Law (PECL) in General 690G. Relation to Chapter 1 (General Provisions): General Remark 690H. Relation to Article 1:102 (Price) 690I. Relation to Article 1:103 (Pre-contractual Duties to Warn) 691J. Relation to Article 1:104 (Duty to Co-operate) 692K. Relation to Article 1:109 (Directions of the Client) 693L. Relation to Article 1:110 (Contractual Duty of the Service

Provider to Warn) 694M. Relation to Article 1:111 (Variation of the Service Contract) 695N. Relation to Article 1:112 (Remedies for Breach of Duties of the

Service Provider) 695O. Relation to Article 1:113 (Failure to Notify for Non-Conformity) 698P. Relation to Article 1:114 (Limitation of Liability) 699Q. Relation to Article 1:115 (Cancellation of the Service Contract) 699R. Character of the Rules 700


CommentsA. General Idea 700B. Interests at Stake and Policy Considerations 701C. Comparative Overview 702D. Preferred Option 703E. Relation to PECL and Other Parts of the Principles 703F. Relation to Other Chapters of the Principles of European Law on

Service Contracts in General 704G. The Distinction between Information and Advice 705H. Character of the Rule 706I. Remedies 706

Comparative Notes1. Definition of information and advice 7062. Regulation of information and advice 707

National Notes1. Definition of information and advice 7072. Regulation of information and advice 710

L




Comparative Notes1. Duty of the information provider to ascertain the needs of the

client and duty to co-operate of the client 718

National Notes1. Duty of the information provider to ascertain the needs of the client

and duty to co-operate of the client 718

Article 6:103: Duties of the Information Provider regarding Input


Comparative Notes1. Duty to have and to collect expert knowledge 724

National Notes1. Duty to have and to collect expert knowledge 724

Article 6:104: Duty of Care of the Information Provider

CommentsA. General Idea 728B. Interests at Stake and Policy Considerations 729C. Comparative Overview 731D. Preferred Option 732E. Relation to PECL and Other Parts of the Principles 732

LI

Table of Contents Chapter 6: Information

F. Character of the Rule 733G. Remedies 734

Comparative Notes1. Obligation of means or obligation of result 7342. Determination of the standard of care 7343. Obligation to mention risks and alternatives 7344. Alternatives the service provider cannot provide himself 735

National Notes1. Obligation of means or obligation of result 7352. Determination of the standard of care 7383. Obligation to mention risks and alternatives 7414. Alternatives the service provider cannot provide himself 744


CommentsA. General Idea 746B. Interests at Stake and Policy Considerations 747C. Comparative Overview 747D. Preferred Option 748E. Relation to PECL and Other Parts of the Principles 749F. Distinction between Evaluative and Factual Information 749G. Character of the Rule 750H. Remedies 751

Notes 751


CommentsA. General Idea 751B. Interests at Stake and Policy Considerations 752C. Comparative Overview 753D. Preferred Option 753E. Main and Ancillary Obligations to Inform 753F. Character of the Rule 754G. Remedies 754

Comparative Notes1. Burden of proof on breach of duty 755

National Notes1. Burden of proof on breach of duty 755

LII


Article 6:107: Conflict of Interest


Comparative Notes1. Conflict of interest in advice and information contracts 763

National Notes1. Conflict of interest in advice and information contracts 763

Article 6:108: Influence of Ability of the Client


Comparative Notes1. Influence of the ability of the client on the service to be provided 770

National Notes1. Influence of the ability of the client on the service to be provided 771

Article 6:109: Causation


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Table of Contents Chapter 7: Treatment

Comparative Notes1. Burden of proof on causation 776

National Notes1. Burden of proof on causation 776

Chapter 7: Treatment

General IntroductionA. General Idea 781B. Scope of Application 781C. Basic Principles 782D. Terminology 785E. Sources and Scope of Application of the Rules 786

Relation to Other Parts of the PrinciplesF. Relation to the Principles of European Contract Law (PECL) in General 786G. Relation to Other Parts of the Principles 787H. Relation to the Principles of European Law on Benevolent Intervention

in Another’s Affairs (PEL Ben. Int.) 787I. Relation to Article 1:102 (Price) 787J. Relation to Article 1:103 (Pre-contractual Duties to Warn) 788K. Relation to Article 1:104 (Duty to Co-operate) 788L. Relation to Article 1:106 (Duties of the Service Provider regarding Input) 788M. Relation to Article 1:107 (General Standard of Care for Services) 789N. Relation to Article 1:108 (Result Stated or Envisaged by the Client) 790O. Relation to Article 1:109 (Directions of the Client) 790P. Relation to Article 1:110 (Contractual Duty of the

Service Provider to Warn) 790Q. Relation to Article 1:111 (Variation of the Service Contract) and

Article 1:113 (Failure to Notify for Non-Conformity) 791R. Relation to Article 1:112 (Remedies for Breach of Duties of

the Service Provider) 791S. Relation to Article 114 (Limitation of Liability) 791T. Relation to Article 115 (Cancellation of the Service Contract) 792U. Relation to Chapter 6 (Information) 792


CommentsA. General Idea 793B. Interests at Stake and Policy Considerations 794C. Comparative Overview 796D. Preferred Option 796

LIV

Chapter 7: Treatment Table of Contents

E. Relation to PECL and Other Parts of the Principles 796F. Character of the Rule 797G. Remedies 797

Comparative Notes1. Scope of the rules on treatment in the national laws 797

National Notes1. Scope of the rules on treatment in the national laws 798



Comparative Notes1. Liability for a defective diagnosis 806

National Notes1. Liability for a defective diagnosis 806

Article 7:103: Duties of the Treatment Provider regarding Input


Comparative Notes1. Materials, instruments and tools 813

National Notes1. Materials, instruments and tools 813

LV


Article 7:104: Duty of Care of the Treatment Provider


Comparative Notes1. General standard of care 8212. Modulation of the standard of care 8213. Standard of care in medical experimentation 8214. Burden of proof allocation 8225. Standard of care in unconventional treatment 8226. No-fault compensation/strict liability regarding medical accidents.

Development prospects, case law, law commissions, literature,medical /patient /insurance lobbies, etc. 822

National Notes1. General standard of care 8232. Modulation of the standard of care 8273. Standard of care in medical experimentation 8294. Burden of proof allocation 8305. Standard of care in unconventional treatment. 8336. No-fault compensation/strict liability regarding medical accidents.

Development prospects, case law, law commissions, literature,medical /patient /insurance lobbies, etc. 834

Article 7:105: Duty to Inform of the Treatment Provider


Comparative Notes1. Duty to inform in general 8412. Duty to inform about risks 841

LVI


3. Duty to inform about alternatives 8424. Burden of proof 842

National Notes1. Duty to inform in general 8422. Duty to inform about risks 8463. Duty to inform about alternatives 8494. Burden of proof 850

Article 7:106: Duty to Inform in case of Unnecessary or Experimental Treatment

CommentsA. General Idea 853B. Interests at Stake and Policy Considerations 854C. Comparative Overview 855D. Relation to PECL and Other Parts of the Principles 855E. Character of the Rule 855F. Remedies 856

Comparative Notes1. Duty to inform in case of unnecessary and experimental treatment 856

National Notes1. Duty to inform in case of unnecessary and experimental treatment 856

Article 7:107: Exceptions to the Duty to Inform

CommentsA. General Idea 858B. Interests at Stake and Policy Considerations 859C. Comparative Overview 860D. Preferred Option 860E. Relation to PECL and Other Parts of the Principles 861F. Relation with Articles 7:105, 7:106, 7:108 and 7:109 861G. Character of the Rule 861H. Remedies 861I. Burden of Proof 862

Comparative Notes1. Therapeutic exception 862

National Notes1. Therapeutic exception 862

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Article 7:108: Duty to Obtain Consent


Comparative Notes1. Consent regarding incapable patients 8702. Consent in emergency situations if consent cannot be obtained 8703. Advanced directives /living wills /previously expressed wishes 871

National Notes1. Consent regarding incapable patients 8712. Consent in emergency situations if consent cannot be obtained 8733. Advanced directives /living wills /previously expressed wishes 874



Comparative Notes1. Duty to keep records 8822. Consequence of not keeping records 8823. Patient’s right to have access to the records 8824. Secrecy of clinical records 8825. Exceptions 883

National Notes1. Duty to keep records 8832. Consequence of not keeping records 8843. Patient’s right to have access to the records 8864. Secrecy of clinical records 8875. Exceptions 888

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Article 7:110: Remedies for Non-Performance

CommentsA. General Idea 891B. Interests at Stake and Policy Considerations 891C. Comparative Overview 892D. Preferred Option 892E. Relation to PECL and Other Parts of the Principles 892F. Character of the Rule 893

Comparative Notes1. Termination by the treatment provider 8932. Cancellation by the patient 893

National Notes1. Termination by the treatment provider 8932. Cancellation by the patient 894

Article 7:111: Central Liability of Treatment Providing Organisations


Comparative Notes1. Central liability of hospitals 897

National Notes1. Central liability of hospitals 898

LIX

Table of Contents Annexes

Annexes

Abbreviations 903

Table of Codes and Statutes 937

Table of UK Cases 953

Table of the Principles 959

Bibliography 965

Index 973

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