Art. 70-71: Incorporation and making available of standard contract terms

Incorporation of standard terms is a much-debated issue in almost all legal systems. Any legal instrument on contract law therefore must provide an answer as to when terms are incorporated – but answers may vary considerably from one legal system to the next. In this chapter the provisions of the – now withdrawn – proposal for a Common European Sales Law pertaining to the incorporation of standard terms will be compared to the incorporation rules in German and Dutch law. The term ‘incorporation rules’ will be used in a rather broad sense and include rules pertaining to the acceptance of standard terms imposed on the other party, to rules pertaining to surprising and unclear terms, and to rules requiring the party imposing the terms to give the other party a reasonable opportunity to become aware of their content. The focus will therefore be on Article 70 of the CESL and its functional equivalents in German and Dutch law. It is hoped that the European legislator may benefit from this analysis when developing rules on incorporation of standard terms for upcoming legal instruments, such as an instrument for the Digital Single Market.