The aimof this article is to analyse some of themain issues regarding thematerial scope of the new Directive 2019/770/EU on certain aspects concerning contracts for the supply of digital content and digital services. It focuses on the concept of digital content and services and on the changes made to the rules laid down in Directive 2011/83/EU on consumer rights. To this end, it pays particular attention to the treatment of digital content depending on whether or not it is supplied in a tangible medium and to the identification of the rules applicable in each case. It also addresses the exclusion of so-called goods with digital elements from the scope of Directive 2019/770, the requirements for such exclusion and the legal regime applicable to such goods under the new Sales Contract Directive 2019/771/EU. Finally, it analyses the novel inclusion of the so-called ‘free contracts’ within the scope of Directive 2019/770 where the counter performance of the consumer consists solely in providing personal data in exchange for digital content or services supplied, the exceptions to that inclusion in viewof the formthrough which such data are collected and its problematic interaction with the General Data Protection Regulation 2016/679/EU.
{"title":"Some Considerations on the Material Scope of the New Digital Content Directive: Too Much to Work Out for a Common European Framework","authors":"Ignacio Fernández Chacón","doi":"10.54648/erpl2021026","DOIUrl":"https://doi.org/10.54648/erpl2021026","url":null,"abstract":"The aimof this article is to analyse some of themain issues regarding thematerial scope of the new Directive 2019/770/EU on certain aspects concerning contracts for the supply of digital content and digital services. It focuses on the concept of digital content and services and on the changes made to the rules laid down in Directive 2011/83/EU on consumer rights. To this end, it pays particular attention to the treatment of digital content depending on whether or not it is supplied in a tangible medium and to the identification of the rules applicable in each case. It also addresses the exclusion of so-called goods with digital elements from the scope of Directive 2019/770, the requirements for such exclusion and the legal regime applicable to such goods under the new Sales Contract Directive 2019/771/EU. Finally, it analyses the novel inclusion of the so-called ‘free contracts’ within the scope of Directive 2019/770 where the counter performance of the consumer consists solely in providing personal data in exchange for digital content or services supplied, the exceptions to that inclusion in viewof the formthrough which such data are collected and its problematic interaction with the General Data Protection Regulation 2016/679/EU.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44559943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"On the Usefulness of Default Rules and Disproportionate Sanctions in Consumer Law","authors":"M. Storme","doi":"10.54648/erpl2021020","DOIUrl":"https://doi.org/10.54648/erpl2021020","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45942253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, the need for the adoption of trusts into civilian jurisdictions has been analysed by placing a special focus on commercial trusts. It has been argued that, the trust may offer an added value for these legal systems as it is more advantageous in terms of asset management, investment and financing purposes. In the context of asset management and investment, the trust is compared with the fiduciary contract and even though both legal instruments serve the purpose of separating management and beneficial ownership; it has been concluded that the trust fulfils this function more successfully thanks to both the property dimension and the obligation dimension that are incorporated into it. In the context of traditional financing, the advantage of the trust manifests itself in case of multi-source financing – more clearly, in case of loans acquired by multiple lenders. Here, the added value of the trust is apparent with regard to the composition of common security packages, which constitutes a significant advantage from various perspectives for both borrowers and creditors.
{"title":"Rethinking the Need for Commercial Trusts in Civil Law Jurisdictions","authors":"Gökçe Kurtulan Güner","doi":"10.54648/erpl2021024","DOIUrl":"https://doi.org/10.54648/erpl2021024","url":null,"abstract":"In this article, the need for the adoption of trusts into civilian jurisdictions has been analysed by placing a special focus on commercial trusts. It has been argued that, the trust may offer an added value for these legal systems as it is more advantageous in terms of asset management, investment and financing purposes. In the context of asset management and investment, the trust is compared with the fiduciary contract and even though both legal instruments serve the purpose of separating management and beneficial ownership; it has been concluded that the trust fulfils this function more successfully thanks to both the property dimension and the obligation dimension that are incorporated into it. In the context of traditional financing, the advantage of the trust manifests itself in case of multi-source financing – more clearly, in case of loans acquired by multiple lenders. Here, the added value of the trust is apparent with regard to the composition of common security packages, which constitutes a significant advantage from various perspectives for both borrowers and creditors.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46517376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Article 6, paragraph 1 of Directive 1993/13/EEC provides that unfair terms shall not be binding, whereas the contract shall continue to bind the parties with regards to the terms that can still be effective. Such a rule pursues the particular interest of the consumer, along with the more general interest towards an efficient and competitive market only when the abusive clause is not essential. In fact, when the unfair term constitutes one of the main obligations of the debtor, the contract is not able to continue to exist once deprived from the unfair term. In such situations, in order to provide the consumer with an adequate and effective remedy, a supplementation of the contract is needed.
{"title":"Unfair Terms and Supplementation of the Contract","authors":"M. Farina","doi":"10.54648/erpl2021023","DOIUrl":"https://doi.org/10.54648/erpl2021023","url":null,"abstract":"Article 6, paragraph 1 of Directive 1993/13/EEC provides that unfair terms shall not be binding, whereas the contract shall continue to bind the parties with regards to the terms that can still be effective. Such a rule pursues the particular interest of the consumer, along with the more general interest towards an efficient and competitive market only when the abusive clause is not essential. In fact, when the unfair term constitutes one of the main obligations of the debtor, the contract is not able to continue to exist once deprived from the unfair term. In such situations, in order to provide the consumer with an adequate and effective remedy, a supplementation of the contract is needed.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42582294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2019 the European Union adopted two key Directives on consumer protection with regard to digital contracts: the Directive on the supply of digital content and digital services (2019/770, hereinafter DCD), and the Directive on the online sale of goods (2019/ 771, hereinafter SGD). The European Commission has meant these Directives to be futureproof, which is the reason why the range of digital content under the scope of the DCD is as broad as possible, and the SGD applies to so-called ‘goods with digital elements’. Yet, and in-spite of this future-proof ambition, no mention is made of what is probably the most pressing current technology: artificial intelligence (AI). This technology presents a number of important challenges as underscored by the European Commission in its recent White Paper on AI. Yet, they do not seem to have been taken into account by the Directives. This contribution therefore tries to apply the challenges identified by the Commission in the context of product safety and liability to these Directives with a focus on the DCD. It shows that it presents a number of important challenges, in particular as far as provision on conformity, remedies, or liability are concerned. Ultimately, it raises the question as to whether these Directives are able to deal with AI.
{"title":"The EU’s New Directives on Digital Contracts, and Artificial Intelligence: Really Future Proof?","authors":"R. Gellert","doi":"10.54648/erpl2021021","DOIUrl":"https://doi.org/10.54648/erpl2021021","url":null,"abstract":"In 2019 the European Union adopted two key Directives on consumer protection with regard to digital contracts: the Directive on the supply of digital content and digital services (2019/770, hereinafter DCD), and the Directive on the online sale of goods (2019/ 771, hereinafter SGD). The European Commission has meant these Directives to be futureproof, which is the reason why the range of digital content under the scope of the DCD is as broad as possible, and the SGD applies to so-called ‘goods with digital elements’.\u0000Yet, and in-spite of this future-proof ambition, no mention is made of what is probably the most pressing current technology: artificial intelligence (AI). This technology presents a number of important challenges as underscored by the European Commission in its recent White Paper on AI. Yet, they do not seem to have been taken into account by the Directives.\u0000This contribution therefore tries to apply the challenges identified by the Commission in the context of product safety and liability to these Directives with a focus on the DCD. It shows that it presents a number of important challenges, in particular as far as provision on conformity, remedies, or liability are concerned. Ultimately, it raises the question as to whether these Directives are able to deal with AI.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42216935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2010, France and Germany introduced a common optional matrimonial property regime of participation in acquisitions in both countries. One of its goals was to establish European harmonization, up until then a rare occurrence in the broad field of family law. The harmonization journey was continued by Belgium in 2018, when the Franco-German agreement was taken over in the Belgian Civil Code. This article evaluates the Franco-German regime from both an internal and an external point of view in order to determine the success of this operation. In the internal analysis, the regime will be presented as a modern and balanced compromise between the French and German domestic participation in acquisition regimes. In the external analysis, the regime will be qualified as a legal transplant in Belgium that at this moment in time does not survive the operation. Despite this seemingly negative evaluation, the regime may still increase its success rate, provided all actors involved take the required measures. In any case, the regime should be welcomed as harmonization initiative, considering that new projects may learn from its successes as well as from its stumbling blocks.
{"title":"The Franco-German Common Optional Matrimonial Property Regime: A Guide for Future European Harmonization","authors":"Hannelore Thijs","doi":"10.54648/erpl2021025","DOIUrl":"https://doi.org/10.54648/erpl2021025","url":null,"abstract":"In 2010, France and Germany introduced a common optional matrimonial property regime of participation in acquisitions in both countries. One of its goals was to establish European harmonization, up until then a rare occurrence in the broad field of family law. The harmonization journey was continued by Belgium in 2018, when the Franco-German agreement was taken over in the Belgian Civil Code. This article evaluates the Franco-German regime from both an internal and an external point of view in order to determine the success of this operation. In the internal analysis, the regime will be presented as a modern and balanced compromise between the French and German domestic participation in acquisition regimes. In the external analysis, the regime will be qualified as a legal transplant in Belgium that at this moment in time does not survive the operation. Despite this seemingly negative evaluation, the regime may still increase its success rate, provided all actors involved take the required measures. In any case, the regime should be welcomed as harmonization initiative, considering that new projects may learn from its successes as well as from its stumbling blocks.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48636056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Traditionally, parents are deemed to have a certain immunity from liability towards their children. In the Netherlands, however, this view is subject to change and the question of how to deal with the assessment of liability for dangerous actions by parents with regard to their children should be addressed. This struggle is reflected, for example, in a recent judgement by the Gelderland District Court. (Rechtbank Gelderland 10 September. 2018, ECLI:NL:RBGEL:2018:4466, VR 2019/85, para. 4.6.) In Germany, which has a special provision on parental liability towards their children in the Bürgerliches Gesetzbuch (BGB), the debate on this topic within the judiciary and in the literature has progressed further. On the basis of a recent Dutch case, this contribution will compare the Dutch and German law on the liability of parents and examines on which points German and/or Dutch law deserve to be followed when it comes to the liability of parents for dangerous actions towards their children.
{"title":"Liability of Parents Due to Actions Which Endanger Their Children","authors":"J.H.G. Verweij-Hoogendijk","doi":"10.54648/erpl2021028","DOIUrl":"https://doi.org/10.54648/erpl2021028","url":null,"abstract":"Traditionally, parents are deemed to have a certain immunity from liability towards their children. In the Netherlands, however, this view is subject to change and the question of how to deal with the assessment of liability for dangerous actions by parents with regard to their children should be addressed. This struggle is reflected, for example, in a recent judgement by the Gelderland District Court. (Rechtbank Gelderland 10 September. 2018, ECLI:NL:RBGEL:2018:4466, VR 2019/85, para. 4.6.) In Germany, which has a special provision on parental liability towards their children in the Bürgerliches Gesetzbuch (BGB), the debate on this topic within the judiciary and in the literature has progressed further. On the basis of a recent Dutch case, this contribution will compare the Dutch and German law on the liability of parents and examines on which points German and/or Dutch law deserve to be followed when it comes to the liability of parents for dangerous actions towards their children.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49147999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper examines legal ignorance and its interpretation in Italian private law. Moving from a problematic and interdisciplinary approach, it analyses the legal sources which refer to ‘ignorance of the law’ (mainly, but not only in private law) under various circumstances and the interpretation given to this notion by different branches of the judiciary. Scope of the report is to provide both an overview of the theoretical foundations for allowing or denying justification on grounds of legal ignorance and to highlight the most problematic aspects deriving from its current applications in contemporary digital societies.
{"title":"Legal Ignorance in Italian Private Law","authors":"Noah Vardi, V. Zeno-Zencovich","doi":"10.54648/erpl2021015","DOIUrl":"https://doi.org/10.54648/erpl2021015","url":null,"abstract":"The paper examines legal ignorance and its interpretation in Italian private law. Moving from a problematic and interdisciplinary approach, it analyses the legal sources which refer to ‘ignorance of the law’ (mainly, but not only in private law) under various circumstances and the interpretation given to this notion by different branches of the judiciary. Scope of the report is to provide both an overview of the theoretical foundations for allowing or denying justification on grounds of legal ignorance and to highlight the most problematic aspects deriving from its current applications in contemporary digital societies.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47406340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This contribution considers the role of legal ignorance in Dutch private law. After a short description of the debate on legal ignorance by Dutch scholars, the article focuses on three areas: contract law, tort law and limitation periods. With respect to contract law, this article shows that courts allow for the nullification of a contract due to mistake of law in special circumstances: when the mistaken party was a foreigner or illiterate or when the other party was an expert who gave misinformation about relevant legal provisions. In the field of tort law, the article first examines case law in which public bodies were held liable for unforeseeable case law by the highest administrative court. It is argued that these decisions should be viewed as a manifestation of the fact that court decisions on liability have retroactive effect. Second, in relation to survival of claims for non-pecuniary losses, it is submitted that the Supreme Court seems to interpret notifications by relatives of the deceased victim generously in order to protect them against their legal ignorance. The article then examines case law by the Supreme Court that holds that legal ignorance does not preclude the commencement of prescription periods. However, when wrongful (legal) advice results in a loss, the Supreme Court ruled that the prescription period governing the client’s claim does not start running immediately because he will initially rely on the correctness of the advice. Regarding expiration periods and legal ignorance, the Supreme Courts seems to make a distinction between contractual and statutory expiration periods. The article concludes by considering the prospects for legal development in this area. It is argued the question who should bear the costs of legal ignorance is a matter of risk distribution. Where the risk lies, should depend on the weighing of various factors by the courts, notably the nature of the respective parties and of the interests involved and whether or not the legally ignorant person can claim compensation from a third party such as an attorney or an insurer.
{"title":"Legal Ignorance in the Netherlands","authors":"A. Verheij, Emil F. Verheul, Grietje T. De Jong","doi":"10.54648/erpl2021016","DOIUrl":"https://doi.org/10.54648/erpl2021016","url":null,"abstract":"This contribution considers the role of legal ignorance in Dutch private law. After a short description of the debate on legal ignorance by Dutch scholars, the article focuses on three areas: contract law, tort law and limitation periods.\u0000With respect to contract law, this article shows that courts allow for the nullification of a contract due to mistake of law in special circumstances: when the mistaken party was a foreigner or illiterate or when the other party was an expert who gave misinformation about relevant legal provisions.\u0000In the field of tort law, the article first examines case law in which public bodies were held liable for unforeseeable case law by the highest administrative court. It is argued that these decisions should be viewed as a manifestation of the fact that court decisions on liability have retroactive effect. Second, in relation to survival of claims for non-pecuniary losses, it is submitted that the Supreme Court seems to interpret notifications by relatives of the deceased victim generously in order to protect them against their legal ignorance.\u0000The article then examines case law by the Supreme Court that holds that legal ignorance does not preclude the commencement of prescription periods. However, when wrongful (legal) advice results in a loss, the Supreme Court ruled that the prescription period governing the client’s claim does not start running immediately because he will initially rely on the correctness of the advice. Regarding expiration periods and legal ignorance, the Supreme Courts seems to make a distinction between contractual and statutory expiration periods.\u0000The article concludes by considering the prospects for legal development in this area. It is argued the question who should bear the costs of legal ignorance is a matter of risk distribution. Where the risk lies, should depend on the weighing of various factors by the courts, notably the nature of the respective parties and of the interests involved and whether or not the legally ignorant person can claim compensation from a third party such as an attorney or an insurer.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44296960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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