What can be wrong with an option? An optional Common European Sales Law as a regulatory tool

This article forms part of a special edition of the Common Market Law Review.

Publishers Abstract:
In October 2011, the European Commission proposed a Regulation for an optional Common European Sales Law (CESL). At first glance, introducing the CESL as an optional regime seems to represent a policy move that is both smart and difficult to criticize: What can be wrong with an option? Is it not the case that all market participants strictly prefer to have another available legal product at their disposal? This paper addresses these questions. It examines an optional CESL as a regulatory tool.

Based on European regulatory objectives in contract law, the paper evaluates the case for an optional CESL. It then proceeds to spell out the design of an efficient optional CESL. Finally, it analyses the flaws in the design as currently reflected in the European Commission's proposal, and it attempts to answer whether the flawed design really matters. In this context, the potential influence of the CESL on legal scholarship and further European policy initiatives with respect to contract law is of particular importance.