Common European Sales Law : A critique of its rationales, functions, and unanswered questions

Purpose – This article seeks to take a critical look at the proposed Common European Sales Law (CESL). Design/methodology/approach – The article looks at the rationales given to support the enactment of the CESL. The approach is critical in nature seeking to vet the plausibility of the rationales given for a new regulation The article also takes a critical look at the CESL's structure and trilogy of coverage – sale of goods, supply of digital content, and supply of services. Findings – The article exposes some of the shortcomings of the CESL and the dangers to substantive private law of crafting a regulation based on political feasibility. Research limitations/implications – The CESL as proposed offers some innovative ideas in areas of the bifurcation of businesses into large and small to medium‐sized enterprises (SMEs), as well as rules covering digital content and the supply of trade‐related services. In the end, the analysis suggests a more thorough review is needed to better understand the CESL's interrelationship with the Convention on Contracts for the International Sales Law (CISG) and EU consumer protection law. Practical implications – Further analysis is needed and unanswered questions need to be answered prior to the enactment of the CESL into law. A practical first step would to begin with a more targeted law focused on internet trading and licensing contracts. Originality/value – This article questions the rationales given for the enactment of an ambitious new regulation covering disparate areas of sale of goods, supplying (licensing) of digital content, trade‐related services, and consumer protection. It further questions the rationality and practicality of the creation of the designation of SMEs as types of businesses in need of extra protections not currently provided by contract law's general policing doctrines.