does not apply where no performance at all has been tendered.

It would also be highly advisable to have a rule on the effect which (a) termination of a related services contract has on the sales contract and (b) termination of a sales contract has on another sales contract linked with the first sales contract. The authors recommend taking on board a general rule on linked contracts under the CESL along the lines of what is proposed supra. In this case, the rule in 147(2) would become obsolete and could be deleted.

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Policy Department C: Citizens' Rights and Constitutional Affairs

3.5 Fundamental revision of the Chapter on restitution

The authors warmly welcome the many revisions that have been made in the Chapter on restitution. Those revisions make the CESL rules on restitution more consistent and better equipped to meet the needs of modern distance trade. However, we would like to point out that piecemeal amendment may bring about new gaps and inconsistencies.

3.5.1 Fruits and use

The authors respectfully question the decision that has been made to leave Article 172(2) of the Proposal in place, according to which the obligation to return includes the obligation to return any natural or legal fruits, and to add fruits to the text of the Proposal even where they had so far not been mentioned (cf Amendments 183, 184, 185, 189, 190). Quite apart from the fact that a definition of ‘fruits’ is missing and that, in particular, the notion of what counts as ‘legal fruits’ varies widely among the laws in the Member States, we think it may be difficult to justify treating fruits differently from use. Essentially, the issue of restitution of fruits derived and of use made should be addressed in the same manner. To impose on the buyer an obligation to return fruits might cause unnecessary litigation costs, as the buyer who has avoided or terminated the contract would normally have derived such fruits also if he had bought identical goods or digital content from another seller. Therefore, if that buyer has to return the fruits, he will have to claim damages under Chapter 16 for having been deprived of the fruits he would hypothetically have derived from the other goods.

3.5.2 Costs of restitution and obligation to take back

The same holds true for the decision made in Amendment 171 to impose the cost of returning what was received on the recipient. This rule is appropriate in the context of withdrawal, but not in the context of restitution where it is almost always the seller who has caused the termination or avoidance by way of his non-performance of an obligation or breach of a duty and who should bear the cost of restitution. In this situation, the buyer would, in almost all cases, be forced to raise an additional claim for damages just for the costs of returning the goods. We would add that there should normally also be an obligation on the part of the seller to take back the goods, as otherwise the same problem would arise with the costs of disposal. The authors recommend adding a rule along the lines of the following:

1. The buyer must send back the goods or, in cases covered by …, the tangible medium, or hand them over to the seller or to a person authorised by the seller. The seller is under an obligation to take the goods back unless the parties agree otherwise.

2. In the case of avoidance or termination by the buyer the seller must bear the cost of returning the goods or, in cases covered by …, the tangible medium, and the buyer may withhold restitution until the seller has indicated how the buyer can return the goods or tangible medium without having to advance fees.

3.5.3 Simplification of rules on liability

Amendment 173 on the one hand and Amendments 185, 187 and 188 on the other overlap to a great extent, as returning something in a condition of depreciation amounts to a (partial) non-performance of the obligation to return. The important restriction made in Amendment 186 that liability for damages must not exceed the price agreed for the goods or digital content is, however, missing in Amendment 173. It should also be noted that the rule in Amendment 186 already comprises the rules in Amendments 187 and 188 as no damages can be due where the price is Zero. The authors therefore recommend repealing Amendments 174, 185, 186, 187 and 188, and instead modifying Amendment 173 along the lines of the following:

2d. A party is liable under Articles 159 to 163 for not being able to return what has been received, including fruits where relevant, or for any diminished value to the extent that diminishment in value

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Workshop on the proposal for a Common European Sales Law: the way forward

exceeds depreciation through regular use. Liability shall not exceed the price agreed for what has been received, and there shall be no liability where no price has been agreed.

3.5.4 Personal data

The authors agree with the JURI that the issue of personal data that have been received could, and possibly ought to, be addressed in the Chapter on restitution. However, it believes that Amendments 177, 180, 181, 187 and 188 render the text of the Instrument much more complex, while the same effect could be achieved by way of what has been suggested in the preceding paragraph plus by adding what has been suggested supra p. 37. Everything else follows already from data protection rules. It should also be noted that, for very extraordinary situations, there is still the flexibility clause.