The binding power of the contract : Protection of performance in the system of the Common European Sales Law

Purpose – The purpose of this article is to investigate the role that the principle of pacta sunt servanda plays in consumer contracts under the Common European Sales Law (CESL). Design/methodology/approach – The new proposal for the CESL resembles quite closely other global and European instruments and collections of rules on contracts, such as the CISG, PECL, and DCFR. At a closer look, the concept of contract, and in particular the consumer contract, differences between the CESL and its predecessors becomes readily apparent. This article will point out these differences and thereby analyse the role of the pacta sunt servanda principle in consumer contracts. Findings – The question must be answered whether the consumer protection provisions that weaken the bindingness of contracts will discourage traders from opting into CESL? The Article also shows the inconsistencies in the CESL in business‐to‐business (B2B) contracts in the areas relating to mistake and lack of conformity. Originality/value – The article poses a question which is of such relevance that it should be more comprehensively discussed by European legislators before the CESL is adopted as an EU regulation.