Band 15, Heft 3

After more than 3 years of discussions and negotiations the new contract law package consisting of the directive on the contracts for the supply of digital content and digital services and the new consumer sales directive have been finally adopted. The initial object-based regulatory approach has been kept, whereas the object of the contract now also encompasses digital services. The contract typology is still left within the discretion of the Member States and also the innovative concept of data as counter-performance is kept in the final version. The article discusses the scope of the digital content directive, including the complicated regulation on ancillary digital services (‘goods with digital elements’) as well as the trader’s main obligation – the obligation to supply. Conformity criteria, including the updating obligation, consumer’s remedies, trader’s liability as well as his right to make modifications will be dealt with in the follow-up article to be published in the next issue.

Corporations operate in the global market by employing standard terms to govern their dealings in a uniform and protective manner. Because of differences among jurisdictions, incorporating standard terms can be problematic, especially if companies decide to adopt a cost-effective holistic approach for a high number of their everyday dealings instead of fragmenting their policy. This paper first examines theoretical issues related to the incorporation of standard terms. It then assesses and compares methods of incorporation developed in practice to identify the ‘Legally Advisable Solution’. These methods are also tested in the main jurisdictions. In conclusion, an international model for the incorporation of standard terms is proposed.

The Choice Theory of Contracts is an ambitious, concise, and largely successful contribution to contract theory. Choice Theory is a liberal theory of contract law, grounded in a rich notion of autonomy, which stresses the obligation of the legal system to enhance our autonomy by ensuring the multiplicity of contractual types within the spheres of family, employment, home, and commerce.This article mitigates three shortcomings in The Choice Theory of Contracts and tries to carry Choice Theory further. A first shortcoming of the book is that the critique of transfer theory fails to acknowledge its analytical value. Second, in Part II of the book, Dagan and Heller overlap two issues: what the goods of contract are, and the compatibility of Choice Theory with the key concepts used by mainstream contract theories. Finally, Dagan and Heller do not fully acknowledge that the value of our autonomy is related to our ability to choose well. These revisions are useful to channelling scholarly attention on the implementation of Choice Theory and to sharpening the conceptual tools needed to do so.To show the potential of Choice Theory, this article carries it further. First, the economic concept of consumer sovereignty extends the programme of autonomy-grounded economic theories of contracts. Second, the size of the communities in which contractual relationships are created helps understand how various doctrines and even entire branches of the law foster the autonomy-enhancing capacity of contracts.The article concludes with a series of suggestions for carrying Choice Theory even further.

This article provides an overview of cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of February and the end of June 2019.