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Principles of European Contract Law and Consumer Construction Law

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PELSC

Construction v. Consumer

Law

IUS COMMUNE – Workshop Contract Law –

29/11/2007

Benoît KOHL

LL.M. Cambridge

Lecturer University of Liège Solicitor (Stibbe Brussels)

(2)

Background

“Recent” development of a specific need to

protect the owner against the

contractor when the building has to be

erected for the occupation of the

owner

(3)

Emergence of the ideology of home

ownership

(cfr Lord Diplock : “(…) the emergence of

a property-owning, particularly a

real-

property-mortgaged-to-a-building-society-owning, democracy”)

(Pettitt v

(4)

Some countries of the EU

have developed specific

rules : ex.:

Belgium : Loi Breyne (1971)

France : The « Code de la Construction et de

l’Habitation” : contains specific protection to the individuals in the house building industry

Netherlands: “Nieuw Burgerlijk Wetboek” has been completed by a Statute dated June 5, 2003 (Title 7:12)

Italy « Disposizioni per la tutela dei diritti patrimoniali degli acquirenti di immobili da costruire » (20

(5)

Why focus on consumer

construction law ?

(6)

Compare with Harmonisation of

« classical » construction law :

Examples :

-

C.E.C. Jansen’s Thesis

-

PELCS

-

Works of the GAIPEC

(7)

Problems :

A complete harmonisation of “classical”

Construction law would suppose that the

Member States reach compromises on

several points of law that go to the roots

of the Private Law of each legal system

(ex: binding character of the offer; the need for consideration; the pre-contractual duty to inform; the reconciliation of the liability in Tort and in Contract; the damages for

(8)

Such works are welcomed BUT

it seems unlikely that the

works currently undertaken

could lead in the short or

medium term to practicable

or concrete results.

(9)

See the Commission’s opinion

(Action Plan 2003):

“Further reflection on the

opportuneness of non-sector

specific measures such as an optional

instrument in the area of European

contract law »

(10)

Postponement sine die of the

adoption of a European Civil

Code

(cfr. M.B.M. Loos, Spontane harmonisatie in

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Then : Let’s focus on

consumer law. Arguments

:

1. Emergence of cross-border

transactions in this field

2. Development of national

protections in the house

construction sector : Coherent or

not ?

(12)

3. Dissociation between

consumer construction law

and classical construction

law is possible.

>< PELSC’s approach

(13)

→ preliminary focus on consumer

protection : already been

suggested by the EU: See a.o.

- Mathurin report (construction)

- Mc. Millan Scott report

(crossborder real estate

transactions)

(14)

Does such an approach comply with the

provisions of the Green Book on the

Review consumer acquis ?

EU Commission suggests horizontal

measures rather than vertical ones.

BUT several issues regarding the

consumer protection in the

construction sector are too specific

to be caught by a general measure

(such as the Unfair Commercial

(15)

See G. Howells : detailed rules

«  can be valuable in

targeting particular

practices and providing

clear guidance on what is

acceptable »

(G. Howells, « The Rise of European Consumer Law. Whither

National Consumer Law ? », Syndey L.R., 2006, pp. 63 ff., at p. 80)

(16)

EU Consumer law : content

de lege ferenda

Scope of the harmonisation :

“Consumer” : private individual who wishes to become the owner of a new home (house or flat)

constructed by a professional, regardless of the

type of contract, institution or other legal

method which may be used to achieve this result. I.e. : Construction contract, sale “off plan” (or “sleutel

(17)

Need to take in account, not

only Member States’

legislative Acts, but also

standard contracts

Importance of Self Regulation in some

countries

England : NHBC (+ JCT Forms ?)

Netherlands : GIW (+ UAV ?)

(18)

Consumer’s rights.

Short overview

(19)

Formation of the contract

-

Advertisement : Acquis

communautaire

-

Distance Selling + Door to door :

idem

(note : need of an extension to the transfer of immovable property)

-

Contract in writing

-

Compulsory clauses

(20)

Perfomance of the contract

-

Stage payments

-

Guarantee against insolvency

-

Inspection and Acceptance :

assistance by a professional

(architect/surveyor/inspector/…)

-

Exceptio non adimpleti contractus

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Guarantee against defects

See French Law: mandatory

“assurance dommages-ouvrage”

UK – Neth. : NHBC and GIW’s

guarantees

Duration ?

Link with builder/promoter’s

liability ?

(22)
(23)

-

Specific harmonisation

(consumer construction law) is

possible and desirable

-

European principles do exist in

this field

-

Hard law v. Soft law : try out the

coregulation method (see White

Book on Governance)

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THANK YOU

Benoît KOHL

LL.M. Cambridge

University of Liège

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