Volume 15, Issue 4

This article analyses the core issues of the new digital content directive: the conformity criteria, liability of the trader and the remedies of the consumer for lack of conformity. The authors assess the directive as a welcome step in raising consumer protection on the Digital Single Market, especially as the initial primacy of subjective conformity criteria has been given up and mandatory objective criteria of the digital content/services have been introduced. This gives European consumers a mandatory protection regime shielding them from the widely used liability restriction clauses. The provisions on remedies have been improved and fine-tuned, starting from the flexible hierarchy of the remedies and ending with deletion of the much-criticized maximum harmonising damages provision. The new directive puts liability for the digital content to the retail sector: it is the traders, the contractual partners of the consumer who are liable for the supply and defects of the digital content even if the digital content is provided by third parties (usually the copyright holders). Whereas the directive is maximum harmonising in principle, several important questions such as the liability periods, obligations of the consumer as well as the remedies of the trader are still left to national law. Finally, as the directive is not based on standard contract typology, the transposition could turn out to be challenging for Member States with civil codes where rules on contractual remedies depend upon contract type.

The digital revolution has pervaded entire sectors of economy and society, creating new markets and new market intermediaries, able to aggregate massive demand and offer beyond any conceivable thresholds in the offline setting. The article moves from the recent adoption of the EU/2019/1150 Regulation on fairness and transparency for business users of online intermediation services and the pending reform of several consumer directives under the auspices of the Digital Agenda and the New Deal for Consumers. It focuses on the role of online platforms and addresses two main policy issues: (i) whether EU legislation should go beyond the adaptation of existing rules opting for a sharper turn towards dedicated regulatory tools in the field of digital law, and (ii) whether the digital dimension of trade should lead to revise the current focus on consumer protection and, more broadly, the current divide between BtoC and BtoB law. Digital private law is taking the first steps into the internal market. Whereas national private law will continue to provide the general framework for private law matters arising in the internet and may certainly contribute to define model rules for ad hoc legislation on digital trade, the EU legislation is due to play a major role and to find new balances between the fundamental freedoms and the protection of digital users. The digital challenge will enable EU institutions to take part in a global venture well beyond the boundaries of the internal market.

In the commercial field, the practice of doing business through a series of fixed-term contracts that are renewed from time to time between the same parties, but not expressed in any framework contract, is a fairly frequent phenomenon – usually known as ‘implied contractual relationships’ or ‘implicit contracts’ – which, however, does not seem to be always recognised in the courtrooms of many legal systems. It is usually believed that a ‘discrete’ approach to the contract – to recall Macneil’s famous distinction between discrete and relational contracts – can more easily result in the non-recognition of the legal value of implicit contractual relationships, while a ‘relational’ perspective would allow to look more closely at the economic transaction as a whole, thus leading to the acknowledgment of implicit contracts. In this paper I will try to examine the same issue from the discrete perspective (with reference to the English system), the relational perspective (with reference to the Japanese legal system) and a third perspective taken by the Italian system, in order to show the actual differences between the relational and discrete approaches to the contract and what remedies are most effective.