Pre-contractual good faith and the Common European Sales Law: A compromise too far?

This article examines the treatment of pre-contractual liability in the 2011 proposal of the European Commission for a Regulation on a Common European Sales Law (CESL). Pre-contractual liability, notably the imposition of a duty to negotiate in good faith, is an area of law in which considerable divergence currently exists between common and civil law legal systems. It thus presents a real challenge for those seeking to find a harmonized European contract law. This article will therefore focus on this aspect of the Commission's proposal and consider, in particular, the impact of its decision, in direct contrast to the Draft Common Frame of Reference and early drafts of the Expert Group Feasibility Study, to omit a general duty to negotiate in good faith and focus on more limited and precise duties of pre-contractual disclosure. To what extent is such a move consistent with the aims of the CESL to provide a second law of contract in each Member State that will be attractive to both business and consumer alike and ensure consumers a high level of protection?