Service Contracts (PEL SC)

Transcription

1 Principles of European Law Study Group on a European Civil Code Service Contracts (PEL SC) prepared by Professor Maurits Barendrecht Professor Chris Jansen Professor Marco Loos Dr. Dr. Andrea Pinna Dr. Rui Cascão Stéphanie van Gulijk in collaboration with the Dutch Working Team with advice from the Advisory Council and the Drafting Commitee and Professor Hugh Beale, London/Warwick approved by the Co-ordinating Group. Particular advice on the Drafting of the Articles from Professor Eric Clive, Edinburgh. Sellier. European Law Publishers Stæmpfli Publishers Ltd. Berne

2 The Dutch Working Team Amsterdam: Professor Martijn Hesselink;Dr.Jacobien Rutgers, Odavia Bueno Diaz (Spanish Law), Manola Scotton (Italian Law), Muriel Veldman; Tilburg: Professor Maurits Barendrecht, Professor Chris Jansen, Professor Marco Loos (Dutch Law), Dr. Dr. Andrea Pinna (French Law), Dr. Rui Cascão (Portuguese Law), Roland Lohnert (German Law, until June 2002), Stéphanie van Gulijk (as of December 2003); Utrecht: Professor Ewoud Hondius,Dr.John Dickie (English Law, until October 2002), Dr. Viola Heutger, Georgios Arnokouros (Greek Law, until the end of 2002), Dr. Christoph Jeloschek (Austrian Law), Dr. Hanna Sivesand (Swedish Law), Aneta Wiewiorowska (Polish Law) The Advisory Council on Services Contracts Professor Johnny Herre (Stockholm), Professor Jérôme Huet (Paris), Professor Hector MacQueen (Edinburgh) Professor Ewan McKendrick (Oxford), Professor Peter Schlechtriem (Freiburg i. Br.) The Co-ordinating Group Professor Guido Alpa (Genua/Rome, until May 2005), Professor Kaspars Balodis (Riga, since December 2004), Professor Christian v. Bar (Osnabrück), Professor Maurits Barendrecht (Tilburg, until May 2005), Professor Hugh Beale (London), Professor Michael Joachim Bonell (Rome), Professor Mifsud G. Bonnici (Valetta, since December 2004), Professor Carlo Castronovo (Milan), Professor Eric Clive (Edinburgh), Professor Ulrich Drobnig (Hamburg), Professor Bénédicte Fauvarque-Cosson (Paris), Professor Marcel Fontaine (Leuven, until December 2003), Professor Andreas Furrer (Luzern, since December 2003), Professor Jacques Ghestin (Paris), Professor Sir Roy Goode (Oxford, until December 2002), Professor Viggo Hagstrøm (Oslo, since June 2002), Professor Arthur Hartkamp (The Hague, until December 2002), Justitierådet Professor Torgny Håstad (Stockholm), Professor Johnny Herre (Stockholm), Professor Martijn Hesselink (Amsterdam), Professor Ewoud Hondius (Utrecht, until May 2005), Professor Jérôme Huet (Paris), Professor Giovanni Iudica (Milan, since June 2004), Dr. Monika Jurcova (Trnava, since June 2006), Professor Konstantinos Kerameus (Athens), Professor Ole Lando (Copenhagen), Professor Kåre Lilleholt (Bergen, since June 2003), Professor Brigitta Lurger (Graz), Professor Hector MacQueen (Edinburgh), Professor Denis Mazeaud (Paris, since June 2005), Professor Ewan McKendrick (Oxford), Professor Valentinas Mikelenas (Vilnius, since December 2004), Professor Eoin O Dell (Dublin, until June 2006), Professor Edgar du Perron (Amsterdam), Professor Denis Philippe (Leuven, since June 2004), Professor Jerzy Rajski (Warsaw), Professor Christina Ramberg (Gothenburg), Professor Philippe Rémy (Poitiers), Judge Professor Encarna Roca y Trias (Madrid/ Barcelona), Professor Peter Schlechtriem (Freiburg i. Br.), Professor Martin Schmidt-Kessel (Osnabrück, since December 2004), Professor Jorge Sinde Monteiro (Coimbra, until December 2004), Professor Lena Sisula-Tulokas (Helsinki), Professor Sophie Stijns (Leuven), Professor Matthias Storme (Leuven), Professor Jan Svidron (Trnava, June 2005 until June 2006), Dr. Stephen Swann (Osnabrück), Professor Luboš Tichý (Prague, since June 2005), Professor Verica Trstenjak (Maribor), Professor Vibe Ulfbeck (Copenhagen, since June 2006), Professor Paul Varul (Tartu, since June 2003), Professor Lajos Vékás (Budapest), Professor Anna Veneziano (Rome)

3 Further Members of the Study Group s Advisory Councils Professor John W. Blackie (Strathclyde, Tort Law, Trust Law), Professor Michael G. Bridge (London, Property Law and Security), Professor Angel Carrasco (Toledo, Security), Professor Pierre Crocq (Paris, Security), Dr. Eugenie Dacoronia (Athens, Tort Law, Leases), Professor Júlio Manuel Vieira Gomes (Oporto, Unjustified enrichment law and benevolent intervention in another s affairs), Professor Helmut Grothe (Berlin, Lease of Movables), Professor Jan Kleineman (Stockholm, Tort Law until June 2003), Professor Irene Kull (Tartu, Lease of Movables; Gratuitous Contracts, Trust Law), Professor Marco Loos (Amsterdam, Service Contracts; Mandate), Professor Graham Moffat (Warwick, Trust Law), Professor Maria A.L. Puelinckx-van Coene (Antwerp, Gratuitous Contracts), Professor Palao Moreno (Valencia, Tort Law) Dr. Kristina Siig (Arhus, Unjustified enrichment law and benevolent intervention in another s affairs), Professor Stefano Troiano (Verona, Gratuitous Contracts), Professor Antoni Vaquer Aloy (Lleida, Lease of Movables, Gratuitous Contracts), Professor Alain Verbeke (Leuven, Lease of Movables), Professor Anders Victorin (Stockholm, deceased 2006, Lease of Movables), Professor Sarah Worthington (London, Lease of Movables).

4 Volume 3 To be cited as: PEL/Barendrecht/Jansen/Loos/Pinna/Cascão/van Gulijk, SC, Gen. Introd. I PEL/Barendrecht/Jansen/Loos/Pinna/Cascão/van Gulijk, SC, Chapter I, Gen. Comments, A PEL/Barendrecht/Jansen/Loos/Pinna/Cascão/van Gulijk, SC, Chapter I, Article 1: 101, Comments, A PEL/Barendrecht/Jansen/Loos/Pinna/Cascão/van Gulijk, SC, Chapter I, Article 1: 101, Nat. Notes, 1 PEL/Barendrecht/Jansen/Loos/Pinna/Cascão/van Gulijk, SC, Chapter I, Article 1: 101, Comp. Notes, 1 ISSN ISBN (Staempfli) ISBN (Staempfli) ISBN (Bruylant) ISBN (Bruylant) ISBN (Sellier. European Law Publishers) ISBN (Sellier. European Law Publishers) Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar by Sellier. European Law Publishers, Munich together with Study Group on a European Civil Code. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Das Register wurde erstellt von RA Dr. Martina Schulz, Pohlheim. The Index was prepared by RA Dr. Martina Schulz, Pohlheim. Gestaltung: Sandra Sellier, München. Herstellung: Karina Hack, München. Satz: fidus Publikations- Service GmbH, Augsburg. Druck und Bindung: Friedrich Pustet KG, Regensburg. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany

5 General Introduction I. General This Part of the Principles deals with contracts where one party undertakes to supply a service to the other party. The provisions are particularly applicable to construction contracts, processing contracts, storage contracts, design contracts, information contracts, and treatment contracts. The provisions of this Part are further applicable with appropriate modifications to contracts where a party undertakes to supply either a combination of services or a combination of a service and any other contractual performance. This Part is not applicable to employment contracts, nor is it meant to be applied to transport contracts, insurance contracts, guarantee contracts, or contracts which involve the supply of a financial product or a financial service, unless such contracts are part of a larger contract involving the supply of a service dealt with in this Part. II. Economic Importance The economic importance of service contracts within the European Union is enormous. The European Commission recently estimated that services account for some 50 per cent of EU GDP and for some 60 per cent of employment in the Union, though an exact figure is hard to determine given that many services are provided by manufacturers of goods. According to the European Commission, many services appear in official statistics as manufacturing activity, meaning that the role of services in the economy is often significantly underestimated (see the Proposal for a Directive of the European Parliament and of the Council on Services in the Internal Market, launched by the European Commission on 5 March 2004). III. Relation to General Contract Law (PECL) Within the Principles, the Principles of European Contract Law provide general rules of contract law. Those rules apply, in principle, to all types of contracts, independent of their object (e.g. sales, insurance, medical treatment, construction, and joint venture) or the status of the parties (consumer, merchant, small business, multinational). As a result, these rules are necessarily rather general and abstract. Although abstract rules certainly have an important function they warrant normative integrity practice also needs more specific rules. Therefore, in addition to the general contract law contained in the PECL the Principles also contain sets of principles specifically relating to sales contracts, service contracts, and long-term commercial contracts. 127

6 Principles of European Law on Service Contracts As to service contracts, there are several examples of issues which require specific rules in order to give service providers, their clients, as well as (legal) advisers guidance and to provide them with a reasonable degree of legal certainty. An important issue relates to the exchange of information between the parties, not only as an inherent part of the supply of the service itself, but also prior to the conclusion of the contract. At that stage, even if the object of the contract is a rather standardised service, it still has to be established what the specific expectations of the client are, how the service provider is to meet these expectations given the services he has to offer, what the specific circumstances are in which the service has to be carried out, what particular risks may be encountered whilst performing the service and, last but not least, what the price of the service required will be given all these peculiarities. Risks may also be general risks attached to standard services. This issue of pre-contractual exchange of information is in fact an example of a more general feature inherent to service contracts. Unlike many other types of contracts, service contracts are greatly dependent on the mutual co-operation between a service provider and a client. Such co-operation does not only involve the client s unilateral assistance to the service provider to enable the latter to perform his part of the contract; modern service contract law also requires an ongoing process of bilateral exchange of support and information between the service provider and the client, aiming at the realisation of the parties individual and common goals. In the context of a service contract, a particular characteristic of the said process concerns the client s influence on the process and its result through instructions. A second and related feature concerns the service provider trying to safeguard the client by warning him against the risks that may occur due to the latter s influence. By the same token, the service provider will usually enable the client to assess the development of the service on a regular basis. Eventually, this process of mutual support and information may lead the parties to signalling difficulties including disputes at an early stage. This may enable them to take steps timely, to prevent problems from occurring or to control their consequences as much as possible, for instance, by agreeing on a variation of the service or by cancelling the service altogether. Another issue inherent to service contracts which requires specific rules involves the liability of the service provider. Lawyers tend to regard this issue as the most important one in the context of a service contract. The issue centres on the difficult question of the basis on which the liability of the service provider should be established. This may either be his failure to provide the service with the care and skill required, or the fact that the service did not achieve the result that was expected by the client. Related to this issue, is the amount of damages to be paid by the service provider after his liability has been established by a court. In the past, the European Community has considered the need for specific rules in this area. However, the Proposal for a Directive on the liability of the suppliers of services (COM(90) 482, OJ C 12/8 of 18 January 1991) encountered much resistance and was eventually mothballed. 128

7 General Introduction IV. Mainly Default Rules: Some Mandatory Protection This Part of the Principles mainly contains default rules, with some exceptions explained at the end of each Comment to the individual Articles. V. Structure of this Part: General and Specific Rules As was stated in section (I), this Part of the Principles deals with construction, processing, storage, design, information and treatment contracts. Clearly, these are all very different contracts, involving services that differ substantially from one another in concreto. However, in section (III) it was explained that there are several issues that are typical for a service process in abstracto and that require specific rules for service contracts, in addition to the Principles of European Contract Law. These issues are typical for all services referred to above, and the proposition is that they are also inherent in other services. This characteristic explains the present structure of this Part of the Principles. It contains a first Chapter with general provisions (Chapter 1: General Provisions) dealing with the issues that are typical for any type of service. The first Chapter does not only apply to the specific services that are being dealt with in Chapters 2 to 7 (Chapter 2: Construction, Chapter 3: Processing, Chapter 4: Storage, Chapter 5: Design, Chapter 6: Information, and Chapter 7: Treatment), but it is also applicable to any other service contract that does not fall within the scope of application of Chapters 2 to 7, provided of course that the contract is not explicitly excluded from the scope of application of Chapter 1. In addition to the provisions of Chapter 1, Chapters 2 to 7 contain specific rules that only apply to the specific service contracts dealt with in these Chapters. These additional and specific rules may either elaborate upon a general provision from Chapter 1, given the particularities of the specific service, or deal with an issue that is not dealt with in Chapter 1 because the issue is typical for the service concerned only. Given the above explanation of the structure of this Part of the Principles, it may be clear that it is not sufficient to read, for example, Chapter 4 only if one wishes to learn about the duties of a storer under a storage contract. Chapter 4, like any of the Chapters 2 to 7, will always have to be read in connection with the provisions of Chapter 1. The same goes for the Comments to Chapters 2 to 7; they are to be read in connection with the Comments to Chapter 1. VI. External Relationship not Dealt with This Part of the Principles exclusively deals with the internal relationship between the service provider and his client. Therefore, the external relationships with third parties are not dealt with here. They could be subject to the rules of Chapter 3 PECL (Authority of Agents) with regard to the authority of a service provider to bind his client in relation to a contract with a third party. The answer to the question whether a third party may have a recourse against the service provider for loss suffered as a result of the 129

8 Principles of European Law on Service Contracts supply of the service is to be found in the Principles of European Law on Non-Contractual Liability Arising out of Damage Caused to Another (PEL Liab.Dam.). VII. Member States Investigated Not every legal system of the Member States of the European Union is represented in the comparative legal study underlying these Principles. For lack of manpower, the law of the Member States that have joined the European Union on 1 May 2004 could not be taken into account, with the exception of Poland, from which country a national reporter could be recruited. Moreover, as no reporters from Belgium, Denmark, Ireland, Luxemburg, and Scotland have been found, these legal systems are not represented either.

9 Chapter 1: General Provisions General Comments A. General Idea The supply of a service can be described as the process by which one person, the service provider, performs work undertaken according to the specific needs and instructions of another person, the client. The work undertaken in any event requires the supply of labour and may also involve the input of materials and components. Hence, a service process may result in the production of an immovable structure or of a movable or incorporeal thing. The building of a new, immovable structure and the creation of a new, movable thing are the most important examples of services that start from scratch and that lead to a material result. Other examples are the drawing of a design of a structure or thing to be built or the drafting of a report containing factual or evaluative information. These too involve a service resulting in material output (a design, a report). However, unlike the newly built structure or thing, their economic value is not expressed in the material value of the paper on which the design or report is made, but in the immaterial ideas and information embedded in or underlying the design and the report. A service may also be centred on a movable thing that already exists; examples are repair work on a car and the storage of a movable thing. Finally, one may think of purely immaterial services which neither result in tangible output nor centre on an existing immovable structure or movable thing because they involve the treatment of persons. The major problem the rules on service contracts have to deal with is the problem of which of the parties is responsible for a disappointing output of the service process. Materials or components may be of insufficient quality. Likewise, the manner in which they were processed may lead to problems of quality, delay, and extra cost. If the service merely involves the supply of labour, such problems may occur due to the inadequacy of that labour. Eventually, all these problems result from inadequate decisions. The service provider may have taken decisions as regards the selection of materials and components, their processing, or the manner in which labour has to be carried out. These decisions may, however, also originate from the instructions that were supplied by or on behalf of the client, either at the very beginning of the service process or in the course of that process. If the latter is the case, a contributory cause of the problem may be the fact that the service provider did not notice the inadequacy of the client s instructions. By the same token, despite having observed the service process on a regular basis, the client may have overlooked the inadequacy of decisions taken by the service provider. 131