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Rome I Regulation Pocket Commentary Franco Ferrari
Digital Instant Download
Author(s): Franco Ferrari
ISBN(s): 9783866532410, 3866532415
Edition: Poc
File Details: PDF, 2.76 MB
Year: 2015
Language: english
| Rome I Regulation
Pocket Commentary
© sellier european law publishers

www.sellier.de
www.sellier.de
| Rome I Regulation
Pocket Commentary
edited by
Franco Ferrari
s|e | l |p
sellier european law publishers

www.sellier.de
Rome I Regulation ist the second volume of the
selp Pocket Commentaries, based on the idea of Peter Huber.
This volume is edited by Franco Ferrari and written by
Articles 1, 12: Jan D. Lüttringhaus
Articles 2, 3, 6: Francesca Ragno
Articles 4, 10: Franco Ferrari / Jan A. Bischoff
Articles 5, 11: Tim W. Dornis
Articles 7, 8: Ansgar Staudinger
Article 9: Martin Schmidt-Kessel
Articles 13–15: Christoph Althammer / Ulrich Kühle
Articles 16–18: Christoph Althammer / Spyros Makris
Articles 19, 20: Markus Altenkirch
Articles 21–29: Sebastian Omlor
To be cited as
Ferrari / Lüttringhaus, Rome I Regulation (2015), Art. 1 para. 1
Ferrari / Althammer/Kühle, Rome I Regulation (2015), Art. 13 para. 1
ISBN (print) 978-3-86653-241-0

ISBN (eBook) 978-3-86653-978-5
The Deutsche Nationalbibliothek lists this publication in the Deutsche

Nationalbibliografie; detailed bibliographic data are available on the
Internet at http://dnb.dnb.de.
© 2015 by sellier european law publishers GmbH, Munich.
All rights reserved. No part of this publication may be reproduced,

translated, stored in a retrieval system or transmitted, in any form or by
any means, electronic, mechanical, photocopying, recording or other-
wise, without prior permission of the publisher.
Production: Karina Hack, Munich. Typesetting: fidus Publikations-Ser

vice GmbH, Nördlingen. Printing and binding: Friedrich Pustet, Re
gensburg. Printed on acid-free, non-ageing paper. Printed in Germany.

www.sellier.de
Preface
Parties to any transaction require predictability and legal certainty, as it is

the predictability and legal certainty that allow the parties to assess the
legal and economic risks involved in the transaction and, thus, allows
them to decide whether to enter into the transaction at all. This need is felt
even more strongly where the transaction is not a purely domestic one but
is linked to more than one country.
To reach the desired predictability and legal certainty in an international

context, various approaches have been resorted to. The drafting of uni-
form rules of private international law is one such approach. It aims at
guaranteeing that courts in the States where such uniform rules are in
force will apply the same substantive rules no matter what court a dispute
is brought before, thus reducing transactions costs by requiring a party to
make provision for one law only.
The Regulation (EC) No 593/2008 of the European Parliament and of the

Council of 17 June 2008 on the law applicable to contractual obligations
(Rome I) sets forth such a set of uniform private international law rules
for (most of) the member states of the EU. This book provides students
and practitioners with a concise and instructive article-by-article com-
mentary which explains the underlying concepts and suggests solutions
for problems that have arisen or may arise in the application of the
Regulation.
As editor, I wish to thank first and foremost all colleagues for their
contributions. My thanks also go to Mr. Sören Flecks (J.D., University
of Cologne; LL.M., NYU) for editing the various contributions.
New York, 11 October 2014 Franco Ferrari

www.sellier.de
List of Authors
Dr. Markus Altenkirch, LL.M. (London)

Attorney-at-Law, Baker & McKenzie Frankfurt a. M.
Dr. Christoph Althammer

Professor, Director of the Institute for German and Comparative Civil
Procedure, Department 1 University of Freiburg i. Br.
Dr. Jan Asmus Bischoff

Inhouse counsel at the privately-owned bank M.M.Warburg & CO
in Hamburg
Dr. Tim W. Dornis, J.S.M. (Stanford), Attorney-at-law (New York)

Professor of Law at Leuphana Law School, Lüneburg/Germany
Dott. Franco Ferrari, Professor of Law and Director of the Center for
Transnational Litigation, Arbitration and Commercial Law, New York
University School of Law; former Legal Officer, United Nations Office of
Legal Affairs, International Trande Law Branch
Dr. Ulrich Kühle

Judge at the Regional Court of Essen
Dr. Jan D. Lüttringhaus, LL.M. (Columbia)

Senior Research Fellow at the Max Planck Institute for Comparative and
International Private Law, Hamburg
Dr. Spyros Makris, LL.M. (Konstanz)

Attorney-at-Law, Munich
Dr. Sebastian Omlor, LL.M. (NYU), LL.M. Eur.

Assistant Professor of Law at Heidelberg University
Dr. Francesca Ragno

Assistant Professor (ricercatore) at the School of Law of the
University of Verona (Italy)
vii
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List of Authors
Dr. Martin Schmidt-Kessel

Professor for German and European Consumer Law, Private Law
and Comparative Law
Director of the Centre for Consumer Law of the
University of Bayreuth
Dr. Ansgar Staudinger

Professor of Law at the University of Bielefeld
viii
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Table of Contents
Preface v
List of Authors vii
Regulation (EC) No 593/2008 of the European

Parliament and of the Council of 17 June 2008
on the law applicable to contractual obligations (Rome I) 1
Chapter I: Scope 23
Chapter II: Uniform Rules 73
Chapter III: Other Provisions 478
Chapter IV: Final Provisions 511
ix
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Regulation (EC) No 593/2008 of the
European Parliament and of the Council of
17 June 2008 on the law applicable to
contractual obligations (Rome I)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in

particular Article 61(c) and the second indent of Article 67(5) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Commit-
tee,1
Acting in accordance with the procedure laid down in Article 251 of the Treaty,2
Whereas:
(1) The Community has set itself the objective of maintaining and developing
an area of freedom, security and justice. For the progressive establishment
of such an area, the Community is to adopt measures relating to judicial
cooperation in civil matters with a cross-border impact to the extent ne-
cessary for the proper functioning of the internal market.
(2) According to Article 65, point (b) of the Treaty, these measures are to include
those promoting the compatibility of the rules applicable in the Member
states concerning the conflict of laws and of jurisdiction.
(3) The European Council meeting in Tampere on 15 and 16 October 1999
endorsed the principle of mutual recognition of judgments and other de-
cisions of judicial authorities as the cornerstone of judicial cooperation in
civil matters and invited the Council and the Commission to adopt a pro-
gramme of measures to implement that principle.
(4) On 30 November 2000 the Council adopted a joint Commission and Council
programme of measures for implementation of the principle of mutual
1 OJ C 318, 23.12.2006, p. 56.

2 Opinion of the European Parliament of 29 November 2007 (not yet published in
the Official Journal) and Council Decision of 5 June 2008.
1
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Regulation of the European Parliament and of the Council (Rome I)
recognition of decisions in civil and commercial matters.3 The programme

identifies measures relating to the harmonisation of conflict-of-law rules as
those facilitating the mutual recognition of judgments.
(5) The Hague Programme,4 adopted by the European Council on 5 November
2004, called for work to be pursued actively on the conflict-of-law rules
regarding contractual obligations (Rome I).
(6) The proper functioning of the internal market creates a need, in order to
improve the predictability of the outcome of litigation, certainty as to the
law applicable and the free movement of judgments, for the conflict-of-law
rules in the Member states to designate the same national law irrespective
of the country of the court in which an action is brought.
(7) The substantive scope and the provisions of this Regulation should be
consistent with Council Regulation (EC) No 44/2001 of 22 December
2000 on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters5 (Brussels I) and Regulation (EC) No 864/
2007 of the European Parliament and of the Council of 11 July 2007 on the
law applicable to non-contractual obligations (Rome II).6
(8) Family relationships should cover parentage, marriage, affinity and collateral
relatives. The reference in Article 1(2) to relationships having comparable
effects to marriage and other family relationships should be interpreted in
accordance with the law of the Member state in which the court is seised.
(9) Obligations under bills of exchange, cheques and promissory notes and
other negotiable instruments should also cover bills of lading to the extent
that the obligations under the bill of lading arise out of its negotiable
character.
(10) Obligations arising out of dealings prior to the conclusion of the contract are
covered by Article 12 of Regulation (EC) No 864/2007. Such obligations
should therefore be excluded from the scope of this Regulation.
(11) The parties’ freedom to choose the applicable law should be one of the
cornerstones of the system of conflict-of-law rules in matters of contractual
obligations.
(12) An agreement between the parties to confer on one or more courts or
tribunals of a Member state exclusive jurisdiction to determine disputes
3 OJ C 12, 15.1.2001, p. 1.
4 OJ C 53, 3.3.2005, p. 1.
5 OJ L 12, 16.1.2001, p.1. Regulation as last amended by Regulation (EC) No 1791/
2006 (OJ L 363, 20.12.2006, p. 1).
6 OJ L 199, 31.7.2007, p. 40.
2
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Recitals
under the contract should be one of the factors to be taken into account in
determining whether a choice of law has been clearly demonstrated.
(13) This Regulation does not preclude parties from incorporating by reference
into their contract a non-State body of law or an international convention.
(14) Should the Community adopt, in an appropriate legal instrument, rules of
substantive contract law, including standard terms and conditions, such
instrument may provide that the parties may choose to apply those rules.
(15) Where a choice of law is made and all other elements relevant to the
situation are located in a country other than the country whose law has
been chosen, the choice of law should not prejudice the application of
provisions of the law of that country which cannot be derogated from by
agreement. This rule should apply whether or not the choice of law was
accompanied by a choice of court or tribunal. Whereas no substantial
change is intended as compared with Article 3(3) of the 1980 Convention
on the Law Applicable to Contractual Obligations7 (the Rome Convention),
the wording of this Regulation is aligned as far as possible with Article 14 of
Regulation (EC) No 864/2007.
(16) To contribute to the general objective of this Regulation, legal certainty in
the European judicial area, the conflict-of-law rules should be highly fore-
seeable. The courts should, however, retain a degree of discretion to de-
termine the law that is most closely connected to the situation.
(17) As far as the applicable law in the absence of choice is concerned, the
concept of ‘provision of services’ and ‘sale of goods’ should be interpreted
in the same way as when applying Article 5 of Regulation (EC) No 44/2001 in
so far as sale of goods and provision of services are covered by that Re-
gulation. Although franchise and distribution contracts are contracts for
services, they are the subject of specific rules.
(18) As far as the applicable law in the absence of choice is concerned, multi-
lateral systems should be those in which trading is conducted, such as
regulated markets and multilateral trading facilities as referred to in Article 4
of Directive 2004/39/EC of the European Parliament and of the Council of
21 April 2004 on markets in financial instruments,8 regardless of whether or
not they rely on a central counterparty.
(19) Where there has been no choice of law, the applicable law should be
determined in accordance with the rule specified for the particular type
7 OJ C 334, 30.12.2005, p. 1.
8 OJ L 145, 30.4.2004, p.1. Directive as last amended by Directive 2008/10/EC (OJ
L 76, 19.3.2008, p. 33).
3
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of contract. Where the contract cannot be categorised as being one of the

specified types or where its elements fall within more than one of the
specified types, it should be governed by the law of the country where
the party required to effect the characteristic performance of the contract
has his habitual residence. In the case of a contract consisting of a bundle of
rights and obligations capable of being categorised as falling within more
than one of the specified types of contract, the characteristic performance of
the contract should be determined having regard to its centre of gravity.
(20) Where the contract is manifestly more closely connected with a country
other than that indicated in Article 4(1) or (2), an escape clause should
provide that the law of that other country is to apply. In order to determine
that country, account should be taken, inter alia, of whether the contract in
question has a very close relationship with another contract or contracts.
(21) In the absence of choice, where the applicable law cannot be determined
either on the basis of the fact that the contract can be categorised as one of
the specified types or as being the law of the country of habitual residence of
the party required to effect the characteristic performance of the contract,
the contract should be governed by the law of the country with which it is
most closely connected. In order to determine that country, account should
be taken, inter alia, of whether the contract in question has a very close
relationship with another contract or contracts.
(22) As regards the interpretation of contracts for the carriage of goods, no
change in substance is intended with respect to Article 4(4), third sentence,
of the Rome Convention. Consequently, single-voyage charter parties and
other contracts the main purpose of which is the carriage of goods should be
treated as contracts for the carriage of goods. For the purposes of this
Regulation, the term ‘consignor’ should refer to any person who enters
into a contract of carriage with the carrier and the term ‘the carrier’ should
refer to the party to the contract who undertakes to carry the goods,
whether or not he performs the carriage himself.
(23) As regards contracts concluded with parties regarded as being weaker,
those parties should be protected by conflict-of-law rules that are more
favourable to their interests than the general rules.
(24) With more specific reference to consumer contracts, the conflict-of-law rule
should make it possible to cut the cost of settling disputes concerning what
are commonly relatively small claims and to take account of the develop-
ment of distance-selling techniques. Consistency with Regulation (EC)
No 44/2001 requires both that there be a reference to the concept of
directed activity as a condition for applying the consumer protection rule
4
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Recitals
and that the concept be interpreted harmoniously in Regulation (EC) No 44/

2001 and this Regulation, bearing in mind that a joint declaration by the
Council and the Commission on Article 15 of Regulation (EC) No 44/2001
states that ‘for Article 15(1)(c) to be applicable it is not sufficient for an
undertaking to target its activities at the Member state of the consumer’s
residence, or at a number of Member states including that Member state; a
contract must also be concluded within the framework of its activities’. The
declaration also states that ‘the mere fact that an Internet site is accessible is
not sufficient for Article 15 to be applicable, although a factor will be that
this Internet site solicits the conclusion of distance contracts and that a
contract has actually been concluded at a distance, by whatever means. In
this respect, the language or currency which a website uses does not con-
stitute a relevant factor’.
(25) Consumers should be protected by such rules of the country of their habitual
residence that cannot be derogated from by agreement, provided that the
consumer contract has been concluded as a result of the professional pur-
suing his commercial or professional activities in that particular country. The
same protection should be guaranteed if the professional, while not pursu-
ing his commercial or professional activities in the country where the con-
sumer has his habitual residence, directs his activities by any means to that
country or to several countries, including that country, and the contract is
concluded as a result of such activities.
(26) For the purposes of this Regulation, financial services such as investment
services and activities and ancillary services provided by a professional to a
consumer, as referred to in sections A and B of Annex I to Directive 2004/39/
EC, and contracts for the sale of units in collective investment undertakings,
whether or not covered by Council Directive 85/611/EEC of 20 December
1985 on the coordination of laws, regulations and administrative provisions
relating to undertakings for collective investment in transferable securities
(UCITS),9 should be subject to Article 6 of this Regulation. Consequently,
when a reference is made to terms and conditions governing the issuance or
offer to the public of transferable securities or to the subscription and
redemption of units in collective investment undertakings, that reference
should include all aspects binding the issuer or the offeror to the consumer,
but should not include those aspects involving the provision of financial
services.
9 OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive 2008/18/EC of

the European Parliament and of the Council (OJ L 76, 19.3.2008, p. 42).
5
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(27) Various exceptions should be made to the general conflict-of-law rule for
consumer contracts. Under one such exception the general rule should not
apply to contracts relating to rights in rem in immovable property or te-
nancies of such property unless the contract relates to the right to use
immovable property on a timeshare basis within the meaning of Directive
94/47/EC of the European Parliament and of the Council of 26 October 1994
on the protection of purchasers in respect of certain aspects of contracts
relating to the purchase of the right to use immovable properties on a
timeshare basis.10
(28) It is important to ensure that rights and obligations which constitute a
financial instrument are not covered by the general rule applicable to
consumer contracts, as that could lead to different laws being applicable
to each of the instruments issued, therefore changing their nature and
preventing their fungible trading and offering. Likewise, whenever such
instruments are issued or offered, the contractual relationship established
between the issuer or the offeror and the consumer should not necessarily
be subject to the mandatory application of the law of the country of habitual
residence of the consumer, as there is a need to ensure uniformity in the
terms and conditions of an issuance or an offer. The same rationale should
apply with regard to the multilateral systems covered by Article 4(1)(h), in
respect of which it should be ensured that the law of the country of habitual
residence of the consumer will not interfere with the rules applicable to
contracts concluded within those systems or with the operator of such
systems.
(29) For the purposes of this Regulation, references to rights and obligations
constituting the terms and conditions governing the issuance, offers to the
public or public take-over bids of transferable securities and references to
the subscription and redemption of units in collective investment under-
takings should include the terms governing, inter alia, the allocation of
securities or units, rights in the event of over-subscription, withdrawal rights
and similar matters in the context of the offer as well as those matters
referred to in Articles 10, 11, 12 and 13, thus ensuring that all relevant
contractual aspects of an offer binding the issuer or the offeror to the
consumer are governed by a single law.
(30) For the purposes of this Regulation, financial instruments and transferable
securities are those instruments referred to in Article 4 of Directive 2004/39/
EC.
10 OJ L 280, 29.10.1994, p. 83.
6
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Recitals
(31) Nothing in this Regulation should prejudice the operation of a formal ar-
rangement designated as a system under Article 2(a) of Directive 98/26/EC
of the European Parliament and of the Council of 19 May 1998 on settlement
finality in payment and securities settlement systems.11
(32) Owing to the particular nature of contracts of carriage and insurance con-
tracts, specific provisions should ensure an adequate level of protection of
passengers and policy holders. Therefore, Article 6 should not apply in the
context of those particular contracts.
(33) Where an insurance contract not covering a large risk covers more than one
risk, at least one of which is situated in a Member state and at least one of
which is situated in a third country, the special rules on insurance contracts
in this Regulation should apply only to the risk or risks situated in the
relevant Member state or Member states.
(34) The rule on individual employment contracts should not prejudice the
application of the overriding mandatory provisions of the country to which
a worker is posted in accordance with Directive 96/71/EC of the European
Parliament and of the Council of 16 December 1996 concerning the posting
of workers in the framework of the provision of services.12
(35) Employees should not be deprived of the protection afforded to them by
provisions which cannot be derogated from by agreement or which can only
be derogated from to their benefit.
(36) As regards individual employment contracts, work carried out in another
country should be regarded as temporary if the employee is expected to
resume working in the country of origin after carrying out his tasks abroad.
The conclusion of a new contract of employment with the original employer
or an employer belonging to the same group of companies as the original
employer should not preclude the employee from being regarded as carry-
ing out his work in another country temporarily.
(37) Considerations of public interest justify giving the courts of the Member
states the possibility, in exceptional circumstances, of applying exceptions
based on public policy and overriding mandatory provisions. The concept of
‘overriding mandatory provisions’ should be distinguished from the expres-
sion ‘provisions which cannot be derogated from by agreement’ and should
be construed more restrictively.
(38) In the context of voluntary assignment, the term ‘relationship’ should make
it clear that Article 14(1) also applies to the property aspects of an assign-
11 OJ L 166, 11.6.1998, p. 45.

12 OJ L 18, 21.1.1997, p. 1.
7
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ment, as between assignor and assignee, in legal orders where such aspects
are treated separately from the aspects under the law of obligations. How-
ever, the term ‘relationship’ should not be understood as relating to any
relationship that may exist between assignor and assignee. In particular, it
should not cover preliminary questions as regards a voluntary assignment or
a contractual subrogation. The term should be strictly limited to the aspects
which are directly relevant to the voluntary assignment or contractual
subrogation in question.
(39) For the sake of legal certainty there should be a clear definition of habitual
residence, in particular for companies and other bodies, corporate or un-
incorporated. Unlike Article 60(1) of Regulation (EC) No 44/2001, which
establishes three criteria, the conflict-of-law rule should proceed on the
basis of a single criterion; otherwise, the parties would be unable to foresee
the law applicable to their situation.
(40) A situation where conflict-of-law rules are dispersed among several instru-
ments and where there are differences between those rules should be
avoided. This Regulation, however, should not exclude the possibility of
inclusion of conflict-of-law rules relating to contractual obligations in pro-
visions of Community law with regard to particular matters.
This Regulation should not prejudice the application of other instruments
laying down provisions designed to contribute to the proper functioning of
the internal market in so far as they cannot be applied in conjunction with
the law designated by the rules of this Regulation. The application of
provisions of the applicable law designated by the rules of this Regulation
should not restrict the free movement of goods and services as regulated by
Community instruments, such as Directive 2000/31/EC of the European
Parliament and of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce, in the Inter-
nal Market (Directive on electronic commerce).13
(41) Respect for international commitments entered into by the Member states
means that this Regulation should not affect international conventions to
which one or more Member states are parties at the time when this Re-
gulation is adopted. To make the rules more accessible, the Commission
should publish the list of the relevant conventions in the Official Journal of
the European Union on the basis of information supplied by the Member
states.
(42) The Commission will make a proposal to the European Parliament and to the
13 OJ L 178, 17.7.2000, p. 1.
8
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Regulation – Article 1
Council concerning the procedures and conditions according to which

Member states would be entitled to negotiate and conclude, on their
own behalf, agreements with third countries in individual and exceptional
cases, concerning sectoral matters and containing provisions on the law
applicable to contractual obligations.
(43) Since the objective of this Regulation cannot be sufficiently achieved by the
Member states and can therefore, by reason of the scale and effects of this
Regulation, be better achieved at Community level, the Community may
adopt measures, in accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty. In accordance with the principle of proportionality, as
set out in that Article, this Regulation does not go beyond what is necessary
to attain its objective.
(44) In accordance with Article 3 of the Protocol on the position of the United
Kingdom and Ireland, annexed to the Treaty on European Union and to the
Treaty establishing the European Community, Ireland has notified its wish to
take part in the adoption and application of the present Regulation.
(45) In accordance with Articles 1 and 2 of the Protocol on the position of the
United Kingdom and Ireland, annexed to the Treaty on European Union and
to the Treaty establishing the European Community, and without prejudice
to Article 4 of the said Protocol, the United Kingdom is not taking part in the
adoption of this Regulation and is not bound by it or subject to its applica-
tion.
(46) In accordance with Articles 1 and 2 of the Protocol on the position of
Denmark, annexed to the Treaty on European Union and to the Treaty
establishing the European Community, Denmark is not taking part in the
adoption of this Regulation and is not bound by it or subject to its applica-
tion,
HAVE ADOPTED THIS REGULATION:
Chapter I: Scope
Article 1: Material scope

1. This Regulation shall apply, in situations involving a conflict of laws, to
contractual obligations in civil and commercial matters.
It shall not apply, in particular, to revenue, customs or administrative matters.
2. The following shall be excluded from the scope of this Regulation:
9
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(a) questions involving the status or legal capacity of natural persons, with-
out prejudice to Article 13;
(b) obligations arising out of family relationships and relationships deemed
by the law applicable to such relationships to have comparable effects,
including maintenance obligations;
(c) obligations arising out of matrimonial property regimes, property re-
gimes of relationships deemed by the law applicable to such relation-
ships to have comparable effects to marriage, and wills and succession;
(d) obligations arising under bills of exchange, cheques and promissory
notes and other negotiable instruments to the extent that the obligations
under such other negotiable instruments arise out of their negotiable
character;
(e) arbitration agreements and agreements on the choice of court;
(f) questions governed by the law of companies and other bodies, corporate
or unincorporated, such as the creation, by registration or otherwise,
legal capacity, internal organisation or winding-up of companies and
other bodies, corporate or unincorporated, and the personal liability of
officers and members as such for the obligations of the company or body;
(g) the question whether an agent is able to bind a principal, or an organ to
bind a company or other body corporate or unincorporated, in relation to
a third party;
(h) the constitution of trusts and the relationship between settlors, trustees
and beneficiaries;
(i) obligations arising out of dealings prior to the conclusion of a contract;
(j) insurance contracts arising out of operations carried out by organisations
other than undertakings referred to in Article 2 of Directive 2002/83/EC of
the European Parliament and of the Council of 5 November 2002 con-
cerning life assurance14 the object of which is to provide benefits for
employed or self-employed persons belonging to an undertaking or
group of undertakings, or to a trade or group of trades, in the event
of death or survival or of discontinuance or curtailment of activity, or of
sickness related to work or accidents at work.
3. This Regulation shall not apply to evidence and procedure, without prejudice
to Article 18.
4. In this Regulation, the term ‘Member state’ shall mean Member states to
14 OJ L 345, 19.12.2002, p.1. Directive as last amended by Directive 2008/19/EC (OJ

L 76, 19.3.2008, p. 44).
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which this Regulation applies. However, in Article 3(4) and Article 7 the term
shall mean all the Member states.
Article 2: Universal application

Any law specified by this Regulation shall be applied whether or not it is the law
of a Member state.
Chapter II: Uniform Rules
Article 3: Freedom of choice

1. A contract shall be governed by the law chosen by the parties. The choice
shall be made expressly or clearly demonstrated by the terms of the contract
or the circumstances of the case. By their choice the parties can select the law
applicable to the whole or to part only of the contract.
2. The parties may at any time agree to subject the contract to a law other than
that which previously governed it, whether as a result of an earlier choice
made under this Article or of other provisions of this Regulation. Any change
in the law to be applied that is made after the conclusion of the contract shall
not prejudice its formal validity under Article 11 or adversely affect the rights
of third parties.
3. Where all other elements relevant to the situation at the time of the choice
are located in a country other than the country whose law has been chosen,
the choice of the parties shall not prejudice the application of provisions of
the law of that other country which cannot be derogated from by agreement.
4. Where all other elements relevant to the situation at the time of the choice
are located in one or more Member states, the parties’ choice of applicable
law other than that of a Member state shall not prejudice the application of
provisions of Community law, where appropriate as implemented in the
Member state of the forum, which cannot be derogated from by agreement.
5. The existence and validity of the consent of the parties as to the choice of the
applicable law shall be determined in accordance with the provisions of
Articles 10, 11 and 13.
Article 4: Applicable law in the absence of choice

1. To the extent that the law applicable to the contract has not been chosen in
accordance with Article 3 and without prejudice to Articles 5 to 8, the law
governing the contract shall be determined as follows:
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(a) a contract for the sale of goods shall be governed by the law of the
country where the seller has his habitual residence;
(b) a contract for the provision of services shall be governed by the law of the
country where the service provider has his habitual residence;
(c) a contract relating to a right in rem in immovable property or to a tenancy
of immovable property shall be governed by the law of the country where
the property is situated;
(d) notwithstanding point (c), a tenancy of immovable property concluded
for temporary private use for a period of no more than six consecutive
months shall be governed by the law of the country where the landlord
has his habitual residence, provided that the tenant is a natural person
and has his habitual residence in the same country;
(e) a franchise contract shall be governed by the law of the country where the
franchisee has his habitual residence;
(f) a distribution contract shall be governed by the law of the country where
the distributor has his habitual residence;
(g) a contract for the sale of goods by auction shall be governed by the law of
the country where the auction takes place, if such a place can be deter-
mined;
(h) a contract concluded within a multilateral system which brings together
or facilitates the bringing together of multiple third-party buying and
selling interests in financial instruments, as defined by Article 4(1), point
(17) of Directive 2004/39/EC, in accordance with non-discretionary rules
and governed by a single law, shall be governed by that law.
2. Where the contract is not covered by paragraph 1 or where the elements of
the contract would be covered by more than one of points (a) to (h) of
paragraph 1, the contract shall be governed by the law of the country where
the party required to effect the characteristic performance of the contract has
his habitual residence.
3. Where it is clear from all the circumstances of the case that the contract is
manifestly more closely connected with a country other than that indicated
in paragraphs 1 or 2, the law of that other country shall apply.
4. Where the law applicable cannot be determined pursuant to paragraphs 1 or
2, the contract shall be governed by the law of the country with which it is
most closely connected.
Article 5: Contracts of carriage

1. To the extent that the law applicable to a contract for the carriage of goods
has not been chosen in accordance with Article 3, the law applicable shall be
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the law of the country of habitual residence of the carrier, provided that the
place of receipt or the place of delivery or the habitual residence of the
consignor is also situated in that country. If those requirements are not met,
the law of the country where the place of delivery as agreed by the parties is
situated shall apply.
2. To the extent that the law applicable to a contract for the carriage of pas-
sengers has not been chosen by the parties in accordance with the second
subparagraph, the law applicable shall be the law of the country where the
passenger has his habitual residence, provided that either the place of de-
parture or the place of destination is situated in that country. If these re-
quirements are not met, the law of the country where the carrier has his
habitual residence shall apply.
The parties may choose as the law applicable to a contract for the carriage of
passengers in accordance with Article 3 only the law of the country where:
(a) the passenger has his habitual residence; or
(b) the carrier has his habitual residence; or
(c) the carrier has his place of central administration; or
(d) the place of departure is situated; or
(e) the place of destination is situated.
3. Where it is clear from all the circumstances of the case that the contract, in the
absence of a choice of law, is manifestly more closely connected with a
country other than that indicated in paragraphs 1 or 2, the law of that other
country shall apply.
Article 6: Consumer contracts

1. Without prejudice to Articles 5 and 7, a contract concluded by a natural
person for a purpose which can be regarded as being outside his trade or
profession (the consumer) with another person acting in the exercise of his
trade or profession (the professional) shall be governed by the law of the
country where the consumer has his habitual residence, provided that the
professional:
(a) pursues his commercial or professional activities in the country where the
consumer has his habitual residence, or
(b) by any means, directs such activities to that country or to several coun-
tries including that country,
and the contract falls within the scope of such activities.
2. Notwithstanding paragraph 1, the parties may choose the law applicable to a
contract which fulfils the requirements of paragraph 1, in accordance with
Article 3. Such a choice may not, however, have the result of depriving the
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consumer of the protection afforded to him by provisions that cannot be

derogated from by agreement by virtue of the law which, in the absence of
choice, would have been applicable on the basis of paragraph 1.
3. If the requirements in points (a) or (b) of paragraph 1 are not fulfilled, the law
applicable to a contract between a consumer and a professional shall be
determined pursuant to Articles 3 and 4.
4. Paragraphs 1 and 2 shall not apply to:
(a) a contract for the supply of services where the services are to be supplied
to the consumer exclusively in a country other than that in which he has
his habitual residence;
(b) a contract of carriage other than a contract relating to package travel
within the meaning of Council Directive 90/314/EEC of 13 June 1990 on
package travel, package holidays and package tours;15
(c) a contract relating to a right in rem in immovable property or a tenancy of
immovable property other than a contract relating to the right to use
immovable properties on a timeshare basis within the meaning of Di-
rective 94/47/EC;
(d) rights and obligations which constitute a financial instrument and rights
and obligations constituting the terms and conditions governing the
issuance or offer to the public and public take-over bids of transferable
securities, and the subscription and redemption of units in collective
investment undertakings in so far as these activities do not constitute
provision of a financial service;
(e) a contract concluded within the type of system falling within the scope of
Article 4(1)(h).
Article 7: Insurance contracts

1. This Article shall apply to contracts referred to in paragraph 2, whether or not
the risk covered is situated in a Member state, and to all other insurance
contracts covering risks situated inside the territory of the Member states. It
shall not apply to reinsurance contracts.
2. An insurance contract covering a large risk as defined in Article 5(d) of the
First Council Directive 73/239/EEC of 24 July 1973 on the coordination of
laws, regulations and administrative provisions relating to the taking-up and
pursuit of the business of direct insurance other than life assurance16 shall be
15 OJ L 158, 23.6.1990, p. 59.

16 OJ L 228, 16.8.1973, p. 3. Directive as last amended by Directive 2005/68/EC of
the European Parliament and of the Council (OJ L 323, 9.12.2005, p. 1).
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governed by the law chosen by the parties in accordance with Article 3 of this
Regulation.
To the extent that the applicable law has not been chosen by the parties, the
insurance contract shall be governed by the law of the country where the
insurer has his habitual residence. Where it is clear from all the circumstances
of the case that the contract is manifestly more closely connected with
another country, the law of that other country shall apply.
3. In the case of an insurance contract other than a contract falling within
paragraph 2, only the following laws may be chosen by the parties in accord-
ance with Article 3:
(a) the law of any Member state where the risk is situated at the time of
conclusion of the contract;
(b) the law of the country where the policy holder has his habitual residence;
(c) in the case of life assurance, the law of the Member state of which the
policy holder is a national;
(d) for insurance contracts covering risks limited to events occurring in one
Member state other than the Member state where the risk is situated, the
law of that Member state;
(e) where the policy holder of a contract falling under this paragraph pursues
a commercial or industrial activity or a liberal profession and the insur-
ance contract covers two or more risks which relate to those activities and
are situated in different Member states, the law of any of the Member
states concerned or the law of the country of habitual residence of the
policy holder.
Where, in the cases set out in points (a), (b) or (e), the Member states referred
to grant greater freedom of choice of the law applicable to the insurance
contract, the parties may take advantage of that freedom.
To the extent that the law applicable has not been chosen by the parties in
accordance with this paragraph, such a contract shall be governed by the law
of the Member state in which the risk is situated at the time of conclusion of
the contract.
4. The following additional rules shall apply to insurance contracts covering
risks for which a Member state imposes an obligation to take out insurance:
(a) the insurance contract shall not satisfy the obligation to take out insur-
ance unless it complies with the specific provisions relating to that in-
surance laid down by the Member state that imposes the obligation.
Where the law of the Member state in which the risk is situated and the
law of the Member state imposing the obligation to take out insurance
contradict each other, the latter shall prevail;
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(b) by way of derogation from paragraphs 2 and 3, a Member state may lay
down that the insurance contract shall be governed by the law of the
Member state that imposes the obligation to take out insurance.
5. For the purposes of paragraph 3, third subparagraph, and paragraph 4,
where the contract covers risks situated in more than one Member state,
the contract shall be considered as constituting several contracts each re-
lating to only one Member state.
6. For the purposes of this Article, the country in which the risk is situated shall
be determined in accordance with Article 2(d) of the Second Council Direc-
tive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and
administrative provisions relating to direct insurance other than life assur-
ance and laying down provisions to facilitate the effective exercise of free-
dom to provide services17 and, in the case of life assurance, the country in
which the risk is situated shall be the country of the commitment within the
meaning of Article 1(1)(g) of Directive 2002/83/EC.
Article 8: Individual employment contracts

1. An individual employment contract shall be governed by the law chosen by
the parties in accordance with Article 3. Such a choice of law may not,
however, have the result of depriving the employee of the protection af-
forded to him by provisions that cannot be derogated from by agreement
under the law that, in the absence of choice, would have been applicable
pursuant to paragraphs 2, 3 and 4 of this Article.
2. To the extent that the law applicable to the individual employment contract
has not been chosen by the parties, the contract shall be governed by the law
of the country in which or, failing that, from which the employee habitually
carries out his work in performance of the contract. The country where the
work is habitually carried out shall not be deemed to have changed if he is
temporarily employed in another country.
3. Where the law applicable cannot be determined pursuant to paragraph 2,
the contract shall be governed by the law of the country where the place of
business through which the employee was engaged is situated.
4. Where it appears from the circumstances as a whole that the contract is more
closely connected with a country other than that indicated in paragraphs 2 or
3, the law of that other country shall apply.
17 OJ L 172, 4.7.1988, p.1. Directive as last amended by Directive 2005/14/EC of the

European Parliament and of the Council (OJ L 149, 11.6.2005, p. 14).
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Article 9: Overriding mandatory provisions

1. Overriding mandatory provisions are provisions the respect for which is
regarded as crucial by a country for safeguarding its public interests, such
as its political, social or economic organisation, to such an extent that they are
applicable to any situation falling within their scope, irrespective of the law
otherwise applicable to the contract under this Regulation.
2. Nothing in this Regulation shall restrict the application of the overriding
mandatory provisions of the law of the forum.
3. Effect may be given to the overriding mandatory provisions of the law of the
country where the obligations arising out of the contract have to be or have
been performed, in so far as those overriding mandatory provisions render
the performance of the contract unlawful. In considering whether to give
effect to those provisions, regard shall be had to their nature and purpose
and to the consequences of their application or non-application.
Article 10: Consent and material validity

1. The existence and validity of a contract, or of any term of a contract, shall be
determined by the law which would govern it under this Regulation if the
contract or term were valid.
2. Nevertheless, a party, in order to establish that he did not consent, may rely
upon the law of the country in which he has his habitual residence if it
appears from the circumstances that it would not be reasonable to determine
the effect of his conduct in accordance with the law specified in paragraph 1.
Article 11: Formal validity

1. A contract concluded between persons who, or whose agents, are in the
same country at the time of its conclusion is formally valid if it satisfies the
formal requirements of the law which governs it in substance under this
Regulation or of the law of the country where it is concluded.
2. A contract concluded between persons who, or whose agents, are in different
countries at the time of its conclusion is formally valid if it satisfies the formal
requirements of the law which governs it in substance under this Regulation,
or of the law of either of the countries where either of the parties or their
agent is present at the time of conclusion, or of the law of the country where
either of the parties had his habitual residence at that time.
3. A unilateral act intended to have legal effect relating to an existing or
contemplated contract is formally valid if it satisfies the formal requirements
of the law which governs or would govern the contract in substance under
this Regulation, or of the law of the country where the act was done, or of the
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law of the country where the person by whom it was done had his habitual
residence at that time.
4. Paragraphs 1, 2 and 3 of this Article shall not apply to contracts that fall within
the scope of Article 6. The form of such contracts shall be governed by the law
of the country where the consumer has his habitual residence.
5. Notwithstanding paragraphs 1 to 4, a contract the subject matter of which is
a right in rem in immovable property or a tenancy of immovable property
shall be subject to the requirements of form of the law of the country where
the property is situated if by that law:
(a) those requirements are imposed irrespective of the country where the
contract is concluded and irrespective of the law governing the contract;
and
(b) those requirements cannot be derogated from by agreement.
Article 12: Scope of the law applicable

1. The law applicable to a contract by virtue of this Regulation shall govern in
particular:
(a) interpretation;
(b) performance;
(c) within the limits of the powers conferred on the court by its procedural
law, the consequences of a total or partial breach of obligations, including
the assessment of damages in so far as it is governed by rules of law;
(d) the various ways of extinguishing obligations, and prescription and li-
mitation of actions;
(e) the consequences of nullity of the contract.
2. In relation to the manner of performance and the steps to be taken in the
event of defective performance, regard shall be had to the law of the country
in which performance takes place.
Article 13: Incapacity

In a contract concluded between persons who are in the same country, a natural
person who would have capacity under the law of that country may invoke his
incapacity resulting from the law of another country, only if the other party to the
contract was aware of that incapacity at the time of the conclusion of the contract
or was not aware thereof as a result of negligence.
Article 14: Voluntary assignment and contractual subrogation

1. The relationship between assignor and assignee under a voluntary assign-
ment or contractual subrogation of a claim against another person (the
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debtor) shall be governed by the law that applies to the contract between the
assignor and assignee under this Regulation.
2. The law governing the assigned or subrogated claim shall determine its
assignability, the relationship between the assignee and the debtor, the
conditions under which the assignment or subrogation can be invoked
against the debtor and whether the debtor’s obligations have been dis-
charged.
3. The concept of assignment in this Article includes outright transfers of claims,
transfers of claims by way of security and pledges or other security rights over
claims.
Article 15: Legal subrogation

Where a person (the creditor) has a contractual claim against another (the
debtor) and a third person has a duty to satisfy the creditor, or has in fact
satisfied the creditor in discharge of that duty, the law which governs the third
person’s duty to satisfy the creditor shall determine whether and to what extent
the third person is entitled to exercise against the debtor the rights which the
creditor had against the debtor under the law governing their relationship.
Article 16: Multiple liability

If a creditor has a claim against several debtors who are liable for the same claim,
and one of the debtors has already satisfied the claim in whole or in part, the law
governing the debtor’s obligation towards the creditor also governs the debtor’s
right to claim recourse from the other debtors. The other debtors may rely on the
defences they had against the creditor to the extent allowed by the law govern-
ing their obligations towards the creditor.
Article 17: Set-off

Where the right to set-off is not agreed by the parties, set-off shall be governed
by the law applicable to the claim against which the right to set-off is asserted.
Article 18: Burden of proof

1. The law governing a contractual obligation under this Regulation shall apply
to the extent that, in matters of contractual obligations, it contains rules
which raise presumptions of law or determine the burden of proof.
2. A contract or an act intended to have legal effect may be proved by any mode
of proof recognised by the law of the forum or by any of the laws referred to in
Article 11 under which that contract or act is formally valid, provided that
such mode of proof can be administered by the forum.
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Chapter III: Other Provisions
Article 19: Habitual residence

1. For the purposes of this Regulation, the habitual residence of companies and
other bodies, corporate or unincorporated, shall be the place of central
administration.
The habitual residence of a natural person acting in the course of his business
activity shall be his principal place of business.
2. Where the contract is concluded in the course of the operations of a branch,
agency or any other establishment, or if, under the contract, performance is
the responsibility of such a branch, agency or establishment, the place where
the branch, agency or any other establishment is located shall be treated as
the place of habitual residence.
3. For the purposes of determining the habitual residence, the relevant point in
time shall be the time of the conclusion of the contract.
Article 20: Exclusion of renvoi

The application of the law of any country specified by this Regulation means the
application of the rules of law in force in that country other than its rules of
private international law, unless provided otherwise in this Regulation.
Article 21: Public policy of the forum

The application of a provision of the law of any country specified by this Re-
gulation may be refused only if such application is manifestly incompatible with
the public policy (ordre public) of the forum.
Article 22: states with more than one legal system

1. Where a state comprises several territorial units, each of which has its own
rules of law in respect of contractual obligations, each territorial unit shall be
considered as a country for the purposes of identifying the law applicable
under this Regulation.
2. A Member state where different territorial units have their own rules of law in
respect of contractual obligations shall not be required to apply this Regu-
lation to conflicts solely between the laws of such units.
Article 23: Relationship with other provisions of Community law

With the exception of Article 7, this Regulation shall not prejudice the application
of provisions of Community law which, in relation to particular matters, lay down
conflict-of-law rules relating to contractual obligations.
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Article 24: Relationship with the Rome Convention

1. This Regulation shall replace the Rome Convention in the Member states,
except as regards the territories of the Member states which fall within the
territorial scope of that Convention and to which this Regulation does not
apply pursuant to Article 299 of the Treaty.
2. In so far as this Regulation replaces the provisions of the Rome Convention,
any reference to that Convention shall be understood as a reference to this
Regulation.
Article 25: Relationship with existing international conventions

1. This Regulation shall not prejudice the application of international conven-
tions to which one or more Member states are parties at the time when this
Regulation is adopted and which lay down conflict-of-law rules relating to
contractual obligations.
2. However, this Regulation shall, as between Member states, take precedence
over conventions concluded exclusively between two or more of them in so
far as such conventions concern matters governed by this Regulation.
Article 26: List of Conventions

1. By 17 June 2009, Member states shall notify the Commission of the conven-
tions referred to in Article 25(1). After that date, Member states shall notify
the Commission of all denunciations of such conventions.
2. Within six months of receipt of the notifications referred to in paragraph 1,
the Commission shall publish in the Official Journal of the European Union:
(a) a list of the conventions referred to in paragraph 1;
(b) the denunciations referred to in paragraph 1.
Article 27: Review clause

1. By 17 June 2013, the Commission shall submit to the European Parliament,
the Council and the European Economic and Social Committee a report on
the application of this Regulation. If appropriate, the report shall be accom-
panied by proposals to amend this Regulation. The report shall include:
(a) a study on the law applicable to insurance contracts and an assessment of
the impact of the provisions to be introduced, if any; and
(b) an evaluation on the application of Article 6, in particular as regards the
coherence of Community law in the field of consumer protection.
2. By 17 June 2010, the Commission shall submit to the European Parliament,
the Council and the European Economic and Social Committee a report on
the question of the effectiveness of an assignment or subrogation of a claim
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against third parties and the priority of the assigned or subrogated claim over
a right of another person. The report shall be accompanied, if appropriate, by
a proposal to amend this Regulation and an assessment of the impact of the
provisions to be introduced.
Article 28: Application in time

This Regulation shall apply to contracts concluded after 17 December 2009.
Chapter IV: Final Provisions
Article 29: Entry into force and application

This Regulation shall enter into force on the 20th day following its publication in
the Official Journal of the European Union.
It shall apply from 17 December 2009 except for Article 26 which shall apply from
17 June 2009.
This Regulation shall be binding in its entirety and directly applicable in the
Member states in accordance with the Treaty establishing the European Com-
munity.
Done at Strasbourg, 17 June 2008.
For the European Parliament For the Council

The President The President
H.-G. Pöttering J. Lenarčič
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Article 1
Chapter I: Scope
Article 1: Material scope
1. This Regulation shall apply, in situations involving a conflict of laws, to

contractual obligations in civil and commercial matters. It shall not apply,
in particular, to revenue, customs or administrative matters.
2. The following shall be excluded from the scope of this Regulation:
(a) questions involving the status or legal capacity of natural persons, with-
out prejudice to Article 13;
(b) obligations arising out of family relationships and relationships deemed
by the law applicable to such relationships to have comparable effects,
including maintenance obligations;
(c) obligations arising out of matrimonial property regimes, property re-
gimes of relationships deemed by the law applicable to such relation-
ships to have comparable effects to marriage, and wills and succession;
(d) obligations arising under bills of exchange, cheques and promissory
notes and other negotiable instruments to the extent that the obligations
under such other negotiable instruments arise out of their negotiable
character;
(e) arbitration agreements and agreements on the choice of court;
(f) questions governed by the law of companies and other bodies, corporate
or unincorporated, such as the creation, by registration or otherwise,
legal capacity, internal organisation or winding-up of companies and
other bodies, corporate or unincorporated, and the personal liability of
officers and members as such for the obligations of the company or body;
(g) the question whether an agent is able to bind a principal, or an organ to
bind a company or other body corporate or unincorporated, in relation to
a third party;
(h) the constitution of trusts and the relationship between settlors, trustees
and beneficiaries;
(i) obligations arising out of dealings prior to the conclusion of a contract;
(j) insurance contracts arising out of operations carried out by organisations
other than undertakings referred to in Article 2 of Directive 2002/83/EC of
the European Parliament and of the Council of 5 November 2002 con-
cerning life assurance the object of which is to provide benefits for
employed or self-employed persons belonging to an undertaking or
group of undertakings, or to a trade or group of trades, in the event
Jan D. Lüttringhaus 23
www.sellier.de
Article 1
of death or survival or of discontinuance or curtailment of activity, or of

sickness related to work or accidents at work.
3. This Regulation shall not apply to evidence and procedure, without prejudice
to Article 18.
4. In this Regulation, the term ‘Member state’ shall mean Member states to
which this Regulation applies. However, in Article 3(4) and Article 7 the term
shall mean all the Member states.
A. Introduction III. Matrimonial Property Regimes,

I. General Purpose 1 Wills, Succession: Art. 1(2)(c) 49
II. Autonomous and Inter- IV. Negotiable Instruments:
Instrumental Interpretation 4 Art. 1(2)(d) 54
III. Internal and External V. Agreements on Arbitration and
Delimitation of European Private Choice of Court: Art. 1(2)(e) 58
International Law 6 1. Arbitration 60
B. Requirements for Application: 2. Choice of Court 64
Art. 1(1) 9 VI. Company Law: Art. 1(2)(f) 66
I. Contractual Obligations 10 1. Creation and Winding-Up 68
1. Autonomous Definition and 2. Legal Capacity 70
Inter-Instrumental Inter- 3. Internal Organisation and
pretation 12 Liability 72
a) Status Quo under Brussels I 13 4. Limits of Art. 1(2)(f) 74
b) Application to European VII. Agency: Art. 1(2)(g) 77
Private International Law 15 1. General Questions Relating
2. Borderline Cases 18 to Agency 77
a) Obligation to Contract 19 2. Falsus Procurator and
b) Restitution as a Consequence Apparent Authority 79
of a Void Contract 21 VIII. Trusts: Art. 1(2)(h) 81
c) Prize Notifications 23 IX. Pre-contractual Obligations:
d) Rights of Redress and Direct Art. 1(2)(i) 85
Claims 26 X. Insurance Contracts:
II. Civil and Commercial Matters 29 Art. 1(2)(j) 90
1. General Outline 29 D. Evidence and Procedure:
2. Acta Iure Gestionis and Art. 1(3) 94
Public Procurement Law 34 I. Limited Exception in Art. 18 95
III. Situations involving Conflict of II. Distinction between Procedural
Laws 37 and Substantive Matters 96
C. Specified Exclusions: Art. 1(2) III. Ascertainment and Application
I. Legal Capacity: Art. 1(2)(a) 40 of Foreign Law 98
II. Family Relationships: E. Member states, Exclusion
Art. 1(2)(b) 44 of Denmark: Art. 1(4) 101
24 Jan D. Lüttringhaus
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Article 1 paras. 1–4
A. Introduction
I. General Purpose
Art.1 delineates the material scope of the Rome I Regulation.1 Art.1(1) 1

declares Rome I applicable “in situations involving a conflict of laws, to
contractual obligations in civil and commercial matters”, while Art.1(2)
and (3) exclude certain matters from the ambit of the Regulation, Finally,
Art. 1(4) defines the notion of “Member state” for the purpose of this
Regulation.2 The rationale behind Art.1 is to define the scope and limits
of the European Union’s private international law of contractual obliga-
tions vis-à-vis other European and national as well as international
choice-of-law regimes. Thus, Art. 1 fulfils an internal as well as an ex-
ternal delimitation function (see infra para. 6 et seq.).3
In addition to Art.1, the relationship of Rome I and other private interna- 2

tional law instruments in the field of contractual obligations is also gov-
erned by Arts. 23 through 26. This concerns, inter alia, special choice-of-
law regimes in European Directives on consumer protection (Art.23) as
well as international conventions (Arts. 25, 26).4
Whereas Art. 2 relates to the territorial application of Rome I as loi 3

uniforme, Art. 28 addresses the applicability of the Regulation in time.
II. Autonomous and Inter-Instrumental Interpretation
With regard to the “substantive scope” of Rome I, Recital (7) declares that 4
1 Regulation (EC) No 593/2008 of the European Parliament and of the Council of

17 June 2008 on the law applicable to contractual obligations (Rome I), O.J. 2008
L 177/6, as amended.
2 E.g. Cheshire/North/Fawcett, Private International Law (14th ed. 2008), 681;
Plender/Wilderspin, The European Private International Law of Obligations
(3rd ed. 2009), para. 14-025 et seq.; M. Weller, Calliess: Rome Regulations
(2011), Art. 1 Rome I para. 1; Kieninger, Ferrari: Int VertragsR (2nd ed. 2012),
Art. 1 Rome I para. 2.
3 Lüttringhaus, 77 RabelsZ (2013), 31, 41 et seq.
4 Dicey/Morris/Collins, Conflicts of Laws (15th ed. 2012), para. 32-038; Schilling,
EuZW 2011, 776.
www.sellier.de
Article 1 para. 5
consistency should be achieved with the Rome II Regulation on non-

contractual obligations5 and the Brussels I Regulation6 (including its
recent recast7) on jurisdiction.8 Since the material scope in each Regu-
lation is defined by its respective Art.1, similar terminology used in these
provisions should be interpreted autonomously and interdependently.
This inter-instrumental interpretation is an essential precondition for
the much-wanted consistency between European choice-of-law and jur-
isdiction provisions.9 Another important argument in favour of a coher-
ent reading of the respective Regulations stems from the relationship
between Rome I and Rome II: These instruments are designed as com-
plementary Regulations and are to constitute a uniform European pri-
vate international law of obligations.10
5 But while it is in principle desirable to align similar concepts in the

respective Art. 1 of Rome I, Rome II and Brussels I, it must be kept in
mind that choice-of-law provisions on the one hand and jurisdiction
provisions, on the other, serve distinct purposes.11 Hence, an identical
construction of the terminology has to be justified by overarching mo-
tives dominating European choice-of-law and jurisdiction instruments
alike.12 With regard to the respective Art. 1 of Rome I, Rome II and
5 Regulation (EC) No 864/2007 of the European Parliament and of the Council of

11 July 2007 on the law applicable to non-contractual obligations (Rome II), O.J.
2007 L 199/40, as amended.
6 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters
O.J. 2001 L 12/1, as amended.
7 Regulation (EU) No 1215/2012 of the European Parliament and of the Council
of 12 December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters, O.J. 2012 L 351/1.
8 See also the similar wording in Recital (7) Rome II.
9 Grundmann, 75 RabelsZ (2011), 882 et seq.; Lüttringhaus, 77 RabelsZ (2013), 31,
34 et seq. See also Lein, 10 Y.B. Priv. Int’l L. (2009), 177 et seq.; Tang, 4 J. Priv. Int.
L. (2008), 35 et. seq.; Würdinger, 75 RabelsZ (2011), 102 et seq.
10 European Commission’s Proposal for a Regulation of the European Parliament
and the Council on the law applicable to contractual obligations (Rome I), COM
(2005) 650 final, 2. See e.g. Lüttringhaus, RIW 2008, 193, 195 and 199; Haftel,
JDI 2010, 761, 775 et seq.
11 MPI, 71 RabelsZ (2007), 225, 237.
www.sellier.de
Article 1 paras. 6, 7
Brussels I, the justification of this inter-instrumental interpretation lies in

the delimitation function of these provisions in the system of European
private international law and jurisdiction.13
III. Internal and External Delimitation of European Private

International Law
While Arts. 23 through 26 also shape the scope of application of Rome I 6

vis-à-vis a certain number of other European and international instru-
ments, Art.1 remains the primary tool for coordinating the applicability
of choice-of-law regimes from different legal sources. To a certain extent,
Art. 1 (as well as Art. 1 Rome II) is a meta-conflict-of-laws rule:14 This
provision determines, first, if a European rather than a national or in-
ternational conflict-of-laws regime is applicable (external delimitation),
and, second, once Union choice-of-laws rules apply, which of the various
EU Regulations is to govern the question at hand (internal delimitation).
Although Art.1 Rome I is self-standing, the function of this delimitation 7

provision15 may only be assessed in the context of other private interna-
tional law instruments. For example, whereas Rome I applies to “con-
tractual obligations”, Rome II covers the antipode, i.e. “non-contractual
obligations”. Hence, Art. 1 of the respective Regulation delineates the
“contractual” and “non-contractual” sphere in European private interna-
tional law. This may further be illustrated by questions relating to culpa in
contrahendo, which are expressly excluded from “contractual obliga-
tions” in Art. 1(2)(i) Rome I. Instead, they fall within the scope of the
“non-contractual obligations” addressed by Art. 1(1) Rome II.16 This

14 See as to the terminology Basedow/Drasch, NJW 1991, 785, 787.
15 See with regard to “Abgrenzungsnormen” in general Basedow, Schlosser: Mate-
rielles Recht und Prozeßrecht und die Auswirkungen der Unterscheidung im
Recht der Internationalen Zwangsvollstreckung (1992), p. 131, 141 et seq.
16 See Art. 1(2)(i) Rome I and Recital No. 30, Art. 2(1), Art. 12 Rome II. See e.g.
Bach, Huber: Rome II Regulation (2011), Art. 1 paras. 19 et seq.; Lüttringhaus,
RIW 2008, 193 et seq.; Plender/Wilderspin, The European Private International
Law of Obligations (3rd ed. 2009), para. 5-065.
www.sellier.de
differentiation between the respective European choice-of-law Regula-

tions describes the internal delimitation function of Art. 1.
8 At the same time, Art.1 also defines the outer limits of the existing body of
European private international law in the field of contractual obligations.
Art. 1 fulfils this external delimitation function by setting out the re-
maining scope of application for choice-of-law provisions contained in
international conventions or national law. The latter may only apply
when a matter is explicitly excluded from Rome I by virtue of Art. 1.
Put differently, once a specific question is governed by Rome I, the
directly applicable European Regulation pre-empts the application of
choice-of-law provisions from other sources.
B. Requirements for Application: Art. 1(1)
9 The material scope of Rome I is determined in Art. 1(1) by reference to

three general elements: The question at hand must involve a contractual
obligation, in a civil or commercial matter, and arise in a situation
involving conflict of laws.
I. Contractual Obligations
10 The European private international law of obligations under Rome I and

Rome II is centred around the notion of “contractual obligation”. The
term serves as a demarcation line between the respective Regulations.
While Rome I applies to “contractual obligations”, Rome II refers to
“non-contractual obligations” to define its material scope. Hence, the
terminology under Rome II is only an inversion of the concept used in
Rome I. In order to draw a clear-cut dividing line between these two
Regulations, it is therefore essential to adopt a uniform interpretation of
contractual obligations.
11 However, other than by excluding certain transactions from the ambit of

Rome I in Art. 1(2), the Regulation does not provide any definition of
“contractual obligations”.17 The same is true for Rome II when it comes to
the concept of “non-contractual obligations”. Given the importance of
17 Stone, EU Private International Law (2nd ed. 2010), p. 290.
www.sellier.de
the notion of “contractual obligations” in European private international

law, the term must be understood as an independent concept of Union
law. Rather than by reference to the lex fori or any definition in a single
national law, “contractual obligations” in Rome I has an independent
meaning which must be determined by way of autonomous and inter-
instrumental interpretation of the various European Regulations. In
addition, to further substantiate these findings, the laws of all Member
states as well as uniform European legal instruments such as the future
Common European Sales Law (CESL)18 may also be taken into account,
insofar as this juxtaposition reveals a certain minimum consensus with
regard to the concept of contract.
1. Autonomous Definition and Inter-Instrumental Interpretation
The dichotomy of contractual and non-contractual obligations has first 12

been evoked by the ECJ to curtail the jurisdiction attributed by Art.5(1)
and (3) Brussels I (Art.7(1) and (2) Brussels I recast).19 In view of Recital
(7) Rome I and Rome II expressly demanding a “consistent” reading of
the terminology in the various European Regulations, the concepts de-
veloped with regard to Brussels I in ECJ case law should also serve as
point of reference when interpreting the European private international
law of obligations.
a) Status Quo under Brussels I
Under ECJ case law on Brussels I, a “contract” and “matters relating to 13

contract” require the establishment of a legal obligation freely consented
to by one person towards another.20 Thus, all bilateral contracts are
18 See Art.2(a) of the Proposal for a Regulation of the European Parliament and of
the Council on a Common European Sales Law, COM (2011) 635 final.
19 See as to Art.5(1) and (3) Brussels Convention e.g. ECJ Case C-167/00 – Henkel
[2002] ECR I-8111 paras. 40 et seq. See moreover, for example, ECJ Case 189/
87 – Kalfelis [1987] ECR 5565 para. 18; ECJ Case C-261/90 – Reichert [1992]
ECR I-2149 para. 16; ECJ Case C-26/91 – Handte [1992] ECR I-3967 para. 15;
ECJ Case C-51/97 – Réunion européenne [1998] ECR I-6511 para. 22.
20 ECJ Case C-26/91 – Handte [1992] ECR I-3967 para. 15; ECJ Case C-51/97 –
Réunion européenne [1998] ECR I-6511 para. 17; ECJ Case C-334/00 – Tacconi
www.sellier.de
Article 1 para. 14
covered – even if the duty to perform lies solely on one party, e.g. in the
case of donations.21
14 Problems occur with respect to promises that remain unilateral and do

not presuppose the consent of the other party, such as public offers of
reward or prize notifications.22 At least in the case of prize notifications,
the ECJ has held that the sending of the notification itself may constitute a
freely consented legal obligation under Art. 5(1) Brussels I (Art. 7(1)
Brussels I recast).23 Yet, the notification must contain “a firm offer which
is sufficiently clear and precise with regard to its object and scope so as to
give rise to a link of a contractual nature”.24 Put differently, the party
“must have expressed clearly its intention to be bound by such a com-
mitment, if it is accepted by the other party”.25
[2002] ECR I-7357 para. 23; ECJ Case C-265/02 – Frahuil [2004] ECR I-1543
para. 24; ECJ Case C-27/02 – Engler [2005] ECR I-481 paras. 50-56.
21 Regarding Art.15 Brussels I see ECJ Case C-180/06 – Ilsinger [2009] ECR I-3961
para. 51.
22 For a comparative and historical analysis see Zimmermann, The Law of Obliga-
tions (1996), p. 572-576.
23 See as to the Brussels Convention ECJ Case C-27/02 – Engler [2005] ECR I-481
paras. 53 and 50 citing ECJ Case C-26/91 – Handte [1992] ECR I-3967 para. 15.
Regarding Art.15 Brussels I see ECJ Case C-180/06 – Ilsinger [2009] ECR I-3961
paras. 54 et seq. See also Bach, IHR 2010, 17-25.
24 ECJ Case C-180/06 – Ilsinger [2009] ECR I-3961 para. 54.
25 ECJ Case C-180/06 – Ilsinger [2009] ECR I-3961 para. 55. Still, the application of
Art.5(1) Brussels I does not necessitate a valid contract, see with regard to Art.5
(1) Brussels Convention ECJ Case C-334/00 – Tacconi [2002] I-7357 para. 22;
ECJ Case C-27/02 – Engler [2005] ECR I-481 para. 50. The situation is different
under Art. 15(1)(c) Brussels, where the special jurisdiction expressly requires a
contract to have been “concluded” by a consumer. In the case of prize notifica-
tions, this prerequisite is already met when the party receiving the notification
“merely indicates its acceptance, without assuming itself any legal obligation to
the other party to the contract”, see ECJ Case C-27/02 – Engler [2005] ECR
I-481 paras. 55 et seq. However, this acceptance may also be expressed tacitly,
e.g. by claiming the prize.
www.sellier.de
Article 1 para. 15
b) Application to European Private International Law
The European Regulations on choice-of-law as well as on jurisdiction 15

recognise the principle of party autonomy.26 It is therefore conceivable
that consensus may also be reached with regard to the result of the
exercise of party autonomy, i.e. as to the basic preconditions of a “con-
tract”. Transposing the criteria developed by the ECJ under Brussels I to
Rome I seems to be all the more warranted given that the concept of “a
freely consented legal obligation” is not tailored to the specificities of
questions relating to jurisdiction. Rather, the freely consented obligation
mirrors the contours of a – very basic – common ground in all European
private law systems.27 Conversely, additional requirements, even though
crucial to the concept of contract in some jurisdictions (e.g. consideration
or cause), have no significance for the purpose of defining the notion of
“contractual obligation” in European private international law,28 the
reason being that these criteria are related to the validity of the contract
and therefore may not be taken into account since Art.10 and Art.12(1)(e)
Rome I make it perfectly clear that the characterisation of a specific
question as contractual does not require a valid contract.29 It is more-
over in this precise context that the ECJ adhered to the method of inter-
dependent interpretation: In the Arcado case, the Court relied on Art.10
of the 1980 Rome Convention as the predecessor of Art. 12 Rome I to
interpret the notion of “contract” in Art.5(1) Brussels Convention as not
requiring the validity of the “freely consented legal obligation”.30 This
26 See Art. 3(1) and (2) Rome I, Art. 14(1) Rome II and Art. 23 Brussels I. Recital
(14) Brussels I stresses that the “autonomy of the parties (…) must be respec-
ted”.
27 This is of course only the least common denominator, see Graziadei, Schulze:
New Features in Contract Law (2007), p. 311, 314 et seq.; Lüttringhaus, Grenz-
überschreitender Diskriminierungsschutz (2010), p. 90; Mankowski, IPRax
2003, 127, 129-131.
28 With respect to substantive law, Zimmermann, The Law of Obligations (1996),
p.559 notes that these requirements are “not essential to the modern concept of
contract”.
29 E.g. Lagarde, Rev. crit. DIP 1991, 287, 326; Dicey/Morris/Collins, Conflicts of
Laws (15th ed. 2012), para. 32-019.
30 ECJ Case 9/87 – Arcado [1988] ECR 1539 para. 15. See also ECJ Case 38/81 –
Effer [1982] ECR 825 para. 7.
www.sellier.de
being said, European choice-of-law and jurisdiction provisions have been

interpreted interdependently early on when it comes to shaping the
notion of contractual obligation.
16 In this spirit, the perspective of inter-instrumental interpretation may

also be reversed to the effect that the concept of a “freely consented legal
obligation” is transposed to European private international law under
Art.1 Rome I.31 This interdependence of choice-of-law and jurisdiction
terminology has been accepted by the ECJ in its case law on international
employment matters: At first, the court interpreted the term “habitual
workplace” under the Brussels Convention by referring to the provisions
of the 1980 Rome Convention.32 Later the ECJ drew on its case law on
jurisdiction to construe the very term in European private international
law.33
17 In view of the Recital (7) found in each Rome I and Rome II, interde-
pendent interpretation of the notion of “contractual obligation” is highly
desirable, especially since the criteria established by the ECJ are equally
suited for choice of law and jurisdiction.34 Furthermore, the “freely con-
sented legal obligation” is not only an accepted precondition for a con-
tract in all European substantive private law systems and an idea em-
braced in the CESL,35 it would also allow a coherent and consistent
differentiation between Rome I and Rome II. For example, obligations
stemming from unilateral promises of one party such as public offers of
reward could be characterised as contractual and thus adequately cap-
tured by the provisions of Rome I.36
31 See with regard to the 1980 Rome Convention Briggs, 283 LMCLQ (1992), 285.
32 ECJ Case 133/81 – Ivenel [1982] ECR 1891 paras. 13-20.
33 ECJ Case C-29/10 – Koelzsch [2011] ECR I-0000 paras. 33-46.
34 With regard to the 1980 Rome Convention e.g. Briggs, 283 LMCLQ (1992), 284
et seq.; Mankowski, IPRax 2003, 127, 135; Audit, JDI 2004, 789, 803 et seq.;
Pertegás, Meeusen/Pertegás et al.: Enforcement of International Contracts in
the European Union (2004), p. 175, 182. Regarding Rome I see Bitter, IPRax
2008, 96, 98 et seq.; Lüttringhaus, RIW 2008, 193, 200. Contra, however, Heuzé,
Droit international privé (1995-98), p. 319, 320 et seq.; Schmidt-Kessel, ZEuP
2004, 1021, 1031 et seq.
35 See Art. 2(a) CESL.
36 E.g. Bitter, IPRax 2008, 96, 97.
www.sellier.de
2. Borderline Cases
While Rome I applies to obligations “freely assumed by one party towards 18

another”, obligations lacking this voluntary element must, at least in
principle, be characterised as non-contractual and consequently fall
within the scope of Rome II. Since Rome I and Rome II are designed
as the European Union’s comprehensive framework for the private in-
ternational law of obligations, this dichotomy of contractual and non-
contractual appears to impose itself – tertium non datur.37 There are,
however, several private law instruments which defy a straightforward
characterisation as contractual or non-contractual. These include, inter
alia, the obligation to contract, prize notifications, restitution, and the
acquisition of a commercial enterprise or fonds de commerce.38 Other
important matters such as culpa in contrahendo and questions relating to
agency including apparent authority of agents and falsus procurator will
be treated in the context of the exclusions in Art. 1(2) Rome I (see infra
para. 41 et seq.).
a) Obligation to Contract
An obligation to contract may arise in two scenarios: First, from a pre- 19

contractual commitment and, second, out of statutory law such as com-
petition law (e.g. compulsory licensing).39 In cases where the parties
agreed in the pre-contractual stage to enter into a contract, the obligation
to contract arising from this agreement is freely assumed by one party
towards another. This obligation therefore satisfies the definition of
“contractual” laid down by ECJ case law in the field of jurisdiction.40
37 E.g. M. Weller, Calliess: Rome Regulations (2011), Art. 1 Rome I para. 2; Haftel,
JDI 2010, 761, 775 et seq.; Lüttringhaus, RIW 2008, 193, 195 and 199. See, how-
ever, Freitag, FS Spellenberg (2010), p. 169-176.
38 See with regard to the acquisition of a commercial enterprise under German law
pursuant to §§ 25-28 HGB Freitag, ZHR 2010, 429, 435 et seq.
39 See with regard to German law, i.e. §§ 19, 20 GWB, LG Leipzig, IPRspr. 2008
No. 96, 314, 316. See, for example, as to Brussels I Mankowski, Magnus/Man-
kowski: Brussels I Regulation (2nd ed. 2012), Art. 5 para. 40; Leible, Rauscher:
EuZPR/EuIPR (2011), Art. 5 Rome I para. 29.
40 See with respect to Brussels I Mankowski, Magnus/Mankowski: Brussels I Re-
gulation (2nd ed. 2012), Art. 5 para. 41.
www.sellier.de
20 In the second scenario, however, the obligation to contract is not at all

rooted in the autonomous decision of the obligor but in statutory law
alone.41 Hence, it is more than doubtful that the obligation to contract as
such may be characterised as a contractual matter. Rather, this question
should be left to the specific choice-of-law regime applicable to the issue
at hand, e.g. the conflict-of-laws provisions relating to the restriction of
competition (Art.6 Rome II).42 Still, it is plain that the contract itself may
be subject to the choice-of-law provisions of Rome I.43
b) Restitution as a Consequence of a Void Contract
21 Art. 10 Rome II provides a special choice-of-law regime for “unjust en-

richment”. At first glance, this seems to indicate that all restitution claims
should be characterised as non-contractual. Yet, Art.12(1)(e), just like its
predecessor in Art. 10(1)(e) of the 1980 Rome Convention, governs the
restitution obligation arising out of a void contract since it states ex-
pressly that the law applicable to the contract should also apply to the
consequences of the nullity of the contractual agreement. Moreover, the
Giuliano/Lagarde Report treats claims for restitution as contractual.44
22 Given that the European legislator – in the absence of any specification to

the contrary – generally aims at achieving continuity and consistency
between the 1980 Rome Convention and Rome I in the field of contrac-
tual obligations,45 Rome I should apply to questions regarding claims for
restitution arising out of a void contract.46 The potential overlap of
Rome I and Rome II in this specific area should be resolved by treating
41 See as to the obligation to contract under German law e.g. Markert, Immenga/
Mestmäcker: Wettbewerbsrecht (4th ed. 2007), § 20 GWB para. 231.
42 See in the context of Brussels I with respect to a compulsory license LG Leipzig,
IPRspr. 2008 No. 96, 314, 316. See also Mankowski, Magnus/Mankowski: Brus-
sels I Regulation (2nd ed. 2012), Art. 5 para. 40.
43 E.g. Wurmnest, JurisPK-BGB (5th ed. 2010), Art. 1 Rome II para. 26; Thorn,
Palandt (72nd ed. 2013), Art. 1 Rome I para. 3.
44 Report Giuliano/Lagarde, O.J. 1980 No. C 282/1, Art. 10 para. 2.
45 See Art.24(2) Rome I as well as Recitals (15) and (22) Rome I. See also von Hein,
Rauscher: EuZPR/EuIPR (2011), Einl. Rome I para. 60.
46 E.g. Plender/Wilderspin, The European Private International Law of Obligations
(3rd ed. 2009), paras. 2-013 and 24-032; Stone, EU Private International Law
www.sellier.de
Art.12(1)(e) Rome I as lex specialis vis-à-vis Art.10 Rome II (see as to the

details Art. 12 para. 35 et seq.).47
c) Prize Notifications
Although prize notifications sent to a consumer by a professional are 23

usually unilateral and unsolicited, the ECJ has held that the obligation of
the originator may be characterised as contractual for the purpose of
Art. 5(1) Brussels I (Art. 7(1) Brussels I recast), provided that the origi-
nating party has “expressed clearly its intention to be bound by such a
commitment, if it is accepted by the other party”.48 However, the noti-
fication must contain “a firm offer which is sufficiently clear and precise
with regard to its object and scope as to give rise to a link of a contractual
nature”.49
In light of Recital (7) and the need for inter-instrumental interpretation 24

in European private international law, the rationale of ECJ case law
regarding the characterisation of prize notification under Brussels I
should – mutatis mutandis – also be applied to Rome I: Whenever the
conditions defined by the Court are fulfilled, the obligation arising out of
a prize notification may be treated as “freely assumed” and hence as a
contractual obligation.50
Whereas neither Brussels I nor Rome I generally requires a valid con- 25

tract,51 Art. 15(1)(c) Brussels I (Art. 17(1)(c) Brussels I recast) as well as
(2nd ed. 2010), p. 335; Huber/Bach, Huber: Rome II Regulation (2011), Art. 10
para. 9. Contra Ringe, JurisPK-BGB (6th ed. 2013), Art. 1 Rome I para. 13.
47 E.g. Plender/Wilderspin, The European Private International Law of Obligations
(3rd ed. 2009), paras.2-013 and 24-032; Huber/Bach, Huber: Rome II Regulation
(2011), Art. 10 para. 9; Junker, MüKo BGB BGB (5th ed. 2010), Art. 10 Rome II
paras. 10 and 14.
50 See e.g. Bach, Huber: Rome II Regulation (2011), Art. 1 para. 30.
51 See as to Art. 5(1) Brussels Convention ECJ Case C-334/00 – Tacconi [2002]
ECR I-7357 para. 22; ECJ Case C-27/02 – Engler [2005] ECR I-481 para. 50. See
also Art. 10 and Art. 12(1)(e) Rome I.
www.sellier.de
Art.6 Rome I expressly refer to “a contract concluded” by a consumer.52

Under ECJ case law regarding the treatment of prize notifications in
Brussels I, this prerequisite may already be fulfilled when the recipient
tacitly expresses acceptance by claiming the prize “without assuming
itself any legal obligation to the other party to the contract”.53
d) Rights of Redress and Direct Claims
26 Certain jurisdictions provide a direct claim for parties in a chain of

contracts.54 This legal construct poses difficult questions when it comes
to characterisation given that a contract under Rome I requires a volun-
tarily assumed obligation.
27 For example, the right of redress required by Art. 4 Directive 1999/44/

EC55 and transposed into the national law of the Member states56 should
be characterised as contractual. The redress of the final seller against the
previous seller in the same chain of contracts is rooted in a voluntarily
assumed chain of contractual relationships.57
28 However, this matter must be distinguished from product liability

claims brought by a subsequent buyer in a chain of contracts against
the producer: These questions are non-contractual in nature and are
subject to Art. 5 Rome II.58 And while at least certain direct claims of
subcontractors, e.g. under French law, may still be characterised as
52 ECJ Case C-180/06 – Ilsinger [2009] ECR I-3961 paras. 52 et seq.

53 ECJ Case C-180/06 – Ilsinger [2009] ECR I-3961 paras. 53 et seq. See also ECJ
Case C-27/02 – Engler [2005] ECR I-481 paras. 55 et seq.
54 E.g. Martiny, ZEuP 2008, 83 et seq.; von Hein, Rauscher: EuZPR/EuIPR (2011),
Art. 1 Rome I para. 10.
55 Directive 1999/44/EC of the European Parliament and of the Council of 25 May
1999 on certain aspects of the sale of consumer goods and associated guarantees,
O.J. 1999 L 171/12, as amended.
56 See with regard to German law e.g. § 478 BGB.
57 Dutta, ZHR 2007, 84 et seq.; von Hein, Rauscher: EuZPR/EuIPR (2011), Art. 1
Rome I para. 10. Contra M. Weller, Calliess: Rome Regulations (2011), Art. 1
Rome I para. 17.
58 E.g. Dickinson, The Rome II Regulation (2008), paras. 5.01 et seq.; Dutta, ZHR
2007, 95 et seq.; Huber/Illmer, 9 Y.B. Priv. Int’l L. (2007), 31 et seq.
www.sellier.de
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She vsed most to keepe her royall court,
And in her soueraine Maiesty to sit,
She in regard hereof refusde and thought vnfit.
Vnto this place when as the Elfin Knight x

Approcht, him seemed that the merry sound
Of a shrill pipe he playing heard on hight,
And many feete fast thumping th’hollow ground,
That through the woods their Eccho did rebound.
He nigher drew, to weete what mote it be;
There he a troupe of Ladies dauncing found
Full merrily, and making gladfull glee,
And in the midst a Shepheard piping he did see.
He durst not enter into th’open greene, xi

For dread of them vnwares to be descryde,
For breaking of their daunce, if he were seene;
But in the couert of the wood did byde,
Beholding all, yet of them vnespyde.
There he did see, that pleased much his sight,
That euen he him selfe his eyes enuyde,
An hundred naked maidens lilly white,
All raunged in a ring, and dauncing in delight.
All they without were raunged in a ring, xii

And daunced round; but in the midst of them
Three other Ladies did both daunce and sing,
The whilest the rest them round about did hemme,
And like a girlond did in compasse stemme:
And in the middest of those same three, was placed
Another Damzell, as a precious gemme,
Amidst a ring most richly well enchaced,
That with her goodly presence all the rest much graced.
Looke how the Crowne, which Ariadne wore xiii

Vpon her yuory forehead that same day,
That Theseus her vnto his bridale bore,
When the bold Centaures made that bloudy fray,
With the fierce Lapithes, which did them dismay;
Being now placed in the firmament,
Through the bright heauen doth her beams display,
And is vnto the starres an ornament,
Which round about her moue in order excellent.
Such was the beauty of this goodly band, xiv

Whose sundry parts were here too long to tell:
But she that in the midst of them did stand,
Seem’d all the rest in beauty to excell,
Crownd with a rosie girlond, that right well
Did her beseeme. And euer, as the crew
About her daunst, sweet flowres, that far did smell,
And fragrant odours they vppon her threw;
But most of all, those three did her with gifts endew.
Those were the Graces, daughters of delight, xv

Handmaides of Venus, which are wont to haunt
Vppon this hill, and daunce there day and night:
Those three to men all gifts of grace do graunt,
And all, that Venus in her selfe doth vaunt,
Is borrowed of them. But that faire one,
That in the midst was placed parauaunt,
Was she to whom that shepheard pypt alone,
That made him pipe so merrily, as neuer none.
She was to weete that iolly Shepheards lasse, xvi

Which piped there vnto that merry rout,
That iolly shepheard, which there piped, was
Poore Colin Clout (who knowes not Colin Clout?)
He pypt apace, whilest they him daunst about.
Pype iolly shepheard, pype thou now apace
Vnto thy loue, that made thee low to lout:
Thy loue is present there with thee in place,
Thy loue is there aduaunst to be another Grace.
Much wondred Calidore at this straunge sight, xvii

Whose like before his eye had neuer seene,
And standing long astonished in spright,
And rapt with pleasaunce, wist not what to weene;
Whether it were the traine of beauties Queene,
Or Nymphes, or Faeries, or enchaunted show,
With which his eyes mote haue deluded beene.
Therefore resoluing, what it was, to know,
Out of the wood he rose, and toward them did go.
But soone as he appeared to their vew, xviii

They vanisht all away out of his sight,
And cleane were gone, which way he neuer knew;
All saue the shepheard, who for fell despight
Of that displeasure, broke his bag-pipe quight,
And made great mone for that vnhappy turne.
But Calidore, though no lesse sory wight,
For that mishap, yet seeing him to mourne,
Drew neare, that he the truth of all by him mote learne.
And first him greeting, thus vnto him spake, xix

Haile iolly shepheard, which thy ioyous dayes
Here leadest in this goodly merry make,
Frequented of these gentle Nymphes alwayes,
Which to thee flocke, to heare thy louely layes;
Tell me, what mote these dainty Damzels be,
Which here with thee doe make their pleasant playes?
Right happy thou, that mayst them freely see:
But why when I them saw, fled they away from me?
Not I so happy[560], answerd then that swaine, xx

As thou vnhappy, which them thence didst chace,
Whom by no meanes thou canst recall againe,
For being gone, none can them bring in place,
But whom they of them selues list so to grace.
Right sory I, (saide then Sir Calidore,)
That my ill fortune did them hence displace.
But since things passed none may now restore,
Tell me, what were they all, whose lacke thee grieues so sore.
Tho gan that shepheard thus for to dilate; xxi

Then wote thou shepheard, whatsoeuer thou bee,
That all those Ladies, which thou sawest late,
Are Venus Damzels, all within[561] her fee,
But differing in honour and degree:
They all are Graces, which on her depend,
Besides a thousand more, which ready bee
Her to adorne, when so she forth doth wend:
But those three in the midst, doe chiefe on her attend.
They are the daughters of sky-ruling Ioue, xxii

By him begot of faire Eurynome,
The Oceans daughter, in this pleasant groue,
As he this way comming from feastfull glee,
Of Thetis wedding with Æacidee,[562]
In sommers shade him selfe[563] here rested weary.
The first of them hight mylde Euphrosyne,
Next faire Aglaia, last Thalia merry:
Sweete Goddesses all three which me in mirth do cherry.
These three on men all gracious gifts bestow, xxiii

Which decke the body or adorne the mynde,
To make them louely or well fauoured show,
As comely carriage, entertainement kynde,
Sweete semblaunt, friendly offices that bynde,
And all the complements of curtesie:
They teach vs, how to each degree and kynde
We should our selues demeane, to low, to hie;
To friends, to foes, which skill men call Ciuility.
Therefore they alwaies smoothly seeme to smile, xxiv

That we likewise should mylde and gentle be,
And also naked are, that without guile
Or false dissemblaunce all them plaine may see,
Simple and true from couert malice free:
And eeke them selues so in their daunce they bore,
That two of them still froward[564] seem’d to bee,
But one still towards shew’d her selfe afore;
That good should from vs goe, then come in greater store.
Such were those Goddesses, which ye did see; xxv
But that fourth Mayd, which there amidst them traced,
Who can aread, what creature mote she bee,
Whether a creature, or a goddesse graced
With heauenly gifts from heuen first enraced?
But what so sure she was, she worthy was,
To be the fourth with those three other placed:
Yet was she certes but a countrey[565] lasse,
Yet she all other countrey lasses farre did passe.
So farre as doth the daughter of the day, xxvi

All other lesser lights in light excell,
So farre doth she in beautyfull array,
Aboue all other lasses beare the bell,
Ne lesse in vertue that beseemes her well,
Doth she exceede the rest of all her race,
For which the Graces that here wont to dwell,
Haue for more honor brought her to this place,
And graced her so much to be another Grace.
Another Grace she well deserues to be, xxvii

In whom so many Graces gathered are,
Excelling much the meane of her degree;
Diuine resemblaunce, beauty soueraine rare,
Firme Chastity, that spight ne blemish dare;
All which she with such courtesie doth grace,
That all her peres cannot with her compare,
But quite are dimmed, when she is in place.
She made me often pipe and now to pipe apace.
Sunne of the world, great glory of the sky, xxviii

That all the earth doest lighten with thy rayes,
Great Gloriana, greatest Maiesty,
Pardon thy shepheard, mongst so many layes,
As he hath sung of thee in all his dayes,
To make one minime of thy poore handmayd,
And vnderneath thy feete to place her prayse,
That when thy glory shall be farre displayd
To future age of her this mention may be made.
When thus that shepherd ended had his speach, xxix

Sayd Calidore; Now sure it yrketh mee,
That to thy blisse I made this luckelesse breach,
As now the author of thy bale to be,
Thus to bereaue thy loues deare sight from thee:
But gentle Shepheard pardon thou my shame,
Who rashly sought that, which I mote not see.
Thus did the courteous Knight excuse his blame,
And to recomfort him, all comely meanes did frame.
In such discourses they together spent xxx

Long time, as fit occasion forth them led;
With which the Knight him selfe did much content,
And with delight his greedy fancy fed,
Both of his words, which he with reason red;
And also of the place, whose pleasures rare
With such regard his sences rauished,
That thence, he had no will away to fare,
But wisht, that with that shepheard he mote dwelling share.
But that enuenimd sting, the which of yore, xxxi

His poysnous point deepe fixed in his hart
Had left, now gan afresh to rancle sore,
And to renue the rigour of his smart:
Which[566] to recure, no skill of Leaches art
Mote him auaile, but to returne againe
To his wounds worker, that with louely dart
Dinting his brest, had bred his restlesse paine,
Like as the wounded Whale to shore flies from the maine.
So taking leaue of that same gentle swaine, xxxii

He backe returned to his rusticke wonne,
Where his faire Pastorella did remaine:
To whome in sort, as he at first begonne,
He daily did apply him selfe to donne[567]
All dewfull seruice voide of thoughts impure[568]:
Ne any paines ne perill did he shonne,
By which he might her to his loue allure,
And liking in her yet vntamed heart procure.
And euermore the shepheard Coridon, xxxiii

What euer thing he did her to aggrate,
Did striue to match with strong contention,
And all his paines did closely emulate;
Whether it were to caroll, as they sate
Keeping their sheepe, or games to exercize,
Or to present her with their labours late;
Through which if any grace chaunst to arize
To him, the Shepheard streight with iealousie did frize.
One day as they all three together went xxxiv

To the greene wood, to gather strawberies,
There chaunst to them a dangerous accident;
A Tigre forth out of the wood did rise,
That with fell clawes full of fierce gourmandize,
And greedy mouth, wide gaping like hell gate,
Did runne at Pastorell her to surprize:
Whom she beholding, now all desolate
Gan cry to them aloud, to helpe her[569] all too late.
Which Coridon first hearing, ran in hast xxxv

To reskue her, but when he saw the feend,
Through cowherd feare he fled away as fast,
Ne durst abide the daunger of the end;
His life he steemed dearer then his frend.
But Calidore soone comming to her ayde,
When he the beast saw ready now to rend
His loues deare spoile, in which his heart was prayde,
He ran at him enraged in stead of being frayde.
He had no weapon, but his shepheards hooke, xxxvi

To serue the vengeaunce of his wrathfull will,
With which so sternely he the monster strooke,
That to the ground astonished he fell;
Whence ere he could recou’r, he did him quell,
And hewing off his head, <he>[570] it presented
Before the feete of the faire Pastorell;
Who scarcely yet from former feare exempted,
A thousand times him thankt, that had her death preuented.
From that day forth she gan him to affect, xxxvii

And daily more her fauour to augment;
But Coridon for cowherdize reiect,
Fit to keepe sheepe, vnfit for loues content:
The gentle heart scornes base disparagement.
Yet Calidore did not despise him quight,
But vsde him friendly for further intent,
That by his fellowship, he colour might
Both his estate, and loue from skill of any wight.
So well he wood her, and so well he wrought her, xxxviii

With humble seruice, and with daily sute,
That at the last vnto his will he brought her;
Which he so wisely well did prosecute,
That of his loue he reapt the timely frute,
And ioyed long in close felicity:
Till fortune fraught with malice, blinde, and brute,
That enuies louers long prosperity,
Blew vp a bitter storme of foule aduersity.
It fortuned one day, when Calidore xxxix

Was hunting in the woods (as was his trade)
A lawlesse people, Brigants hight of yore,
That neuer vsde to liue by plough nor spade,
But fed on spoile and booty, which they made
Vpon their neighbours, which did nigh them border,
The dwelling of these shepheards did inuade,
And spoyld their houses, and them selues did murder;
And droue away their flocks[571], with other much disorder.
Amongst the rest, the which they then did pray, xl

They spoyld old Melibee of all he had,
And all his people captiue led away,
Mongst which this lucklesse mayd away was lad,
Faire Pastorella, sorrowfull and sad,
Most sorrowfull, most sad, that euer sight,
Now made the spoile of theeues and Brigants bad,
Which was the conquest of the gentlest Knight,
That euer liu’d, and th’onely glory of his might.
With them also was taken Coridon, xli

And carried captiue by those theeues away;
Who in the couert of the night, that none
Mote them descry, nor reskue from their pray,
Vnto their dwelling did them close conuay.
Their dwelling in a little Island was,
Couered with shrubby woods, in which no way
Appeard for people in nor out to pas,
Nor any footing fynde for ouergrowen gras.
For vnderneath the ground their way was made, xlii

Through hollow caues, that no man mote discouer
For the thicke shrubs, which did them alwaies shade
From view of liuing wight, and couered ouer:
But darkenesse dred and daily night did houer
Through all the inner parts, wherein they dwelt,
Ne lightned was with window, nor with louer,
But with continuall candlelight, which delt
A doubtfull sense of things, not so well seene, as felt.
Hither those Brigants brought their present pray, xliii

And kept them with continuall watch and ward,
Meaning so soone, as they conuenient may,
For slaues to sell them, for no small reward,
To merchants, which them kept in bondage hard,
Or sold againe. Now when faire Pastorell
Into this place was brought, and kept with gard
Of griesly theeues, she thought her self in hell,
Where with such damned fiends she should in darknesse dwell.
But for to tell the dolefull dreriment, xliv

And pittifull complaints, which there she made,
Where[572] day and night she nought did but lament
Her wretched life, shut vp in deadly shade,
And waste her goodly beauty, which did fade
Like to a flowre, that feeles no heate of sunne,
Which may her feeble leaues with comfort glade.[573]
But[574] what befell her in that theeuish wonne,
Will in an other Canto better be begonne.
FOOTNOTES:
[556] ii 8 report. 1596
[557] 9 in] on 1596
[558] viii 4 course-about 1609
[559] 5 might, 1596
[560] xx 1 happy 1596
[561] xxi 4 within] with in 1596
[562] xxii 5 AEcidee 1596: Aecidee, 1609
[563] 6 selfe] felfe 1596
[564] xxiv 7 froward] forward 1596, 1609: corr. 1612-13
[565] xxv 8 counrtey 1596
[566] xxxi 5 Whch 1596
[567] xxxii 5 donne, 1596
[568] 6 impare 1596
[569] xxxiv 9 her] ere Drayton (teste Collier)
[570] xxxvi 6 <he> om. 1596, 1609
[571] xxxix 9 flocke 1609
Cant. XI.
The theues fall out for Pastorell,

Whilest Melibee is slaine:
Her Calidore from them redeemes,
And bringeth backe againe.
The ioyes of loue, if they should euer last, i

Without affliction or disquietnesse,
That worldly chaunces doe amongst them cast,
Would be on earth too great a blessednesse,
Liker to heauen, then mortall wretchednesse.
Therefore the winged God, to let men weet,
That here on earth is no sure happinesse,
A thousand sowres hath tempred with one sweet,
To make it seeme more deare and dainty, as is meet.
Like as is now befalne to this faire Mayd, ii

Faire Pastorell, of whom is now my song,
Who being now in dreadfull darknesse layd,
Amongst those theeues, which her in bondage strong
Detaynd, yet Fortune not with all this wrong
Contented, greater mischiefe on her threw,
And sorrowes heapt on her in greater throng;
That who so heares her heauinesse, would rew
And pitty her sad plight, so chang’d from pleasaunt hew.
Whylest thus she in these hellish dens remayned, iii

Wrapped in wretched cares and hearts vnrest,
It so befell (as Fortune had ordayned)
That he, which was their Capitaine profest,
And had the chiefe commaund of all the rest,
One day as he did all his prisoners vew,
With lustfull eyes,[575] beheld that louely guest,
Faire Pastorella, whose sad mournefull hew
Like the faire Morning clad in misty fog did shew.
At sight whereof his barbarous heart was fired, iv

And inly burnt with flames most raging whot,
That her alone he for his part desired
Of all the other pray, which they had got,
And her in mynde did to him selfe allot.
From that day forth he kyndnesse to her showed,[576]
And sought her loue, by all the meanes he mote;
With looks, with words, with gifts he oft her wowed;
And mixed threats among, and much vnto her vowed.
But all that euer he could doe or say, v

Her constant mynd could not a whit remoue,
Nor draw vnto the lure of his lewd lay,
To graunt him fauour, or afford him loue.
Yet ceast he not to sew and all waies proue,
By which he mote accomplish his request,
Saying and doing all that mote behoue;
Ne day nor night he suffred her to rest,
But her all night did watch, and all the day molest.
At last when him she so importune saw, vi

Fearing least he at length the raines would lend
Vnto his lust, and make his will his law,
Sith in his powre she was to foe or frend,
She thought it best, for shadow to pretend
Some shew of fauour, by him gracing small,
That she thereby mote either freely wend,
Or at more ease continue there his thrall:
A little well is lent, that gaineth more withall.
So from thenceforth, when loue he to her made, vii

With better tearmes she did him entertaine,
Which gaue him hope, and did him halfe perswade,
That he in time her ioyaunce should obtaine.
But when she saw, through that small fauours gaine,
That further, then she willing was, he prest,
She found no meanes to barre him, but to faine
A sodaine sickenesse, which her sore opprest,
And made vnfit to serue his lawlesse mindes behest.
By meanes whereof she would not him permit viii

Once to approch to her in priuity,
But onely mongst the rest by her to sit,
Mourning the rigour of her malady,
And seeking all things meete for remedy.
But she resolu’d no remedy to fynde,
Nor better cheare to shew in misery,
Till Fortune would her captiue bonds vnbynde,
Her sickenesse was not of the body but the mynde.
During which space that she thus sicke did lie, ix

It chaunst a sort of merchants, which were wount
To skim those coastes, for bondmen there to buy,
And by such trafficke after gaines to hunt,
Arriued in this Isle though bare and blunt,
T’inquire for slaues; where being readie met
By some of these same theeues at the instant[577] brunt,
Were brought vnto their Captaine, who was set
By his faire patients side with sorrowfull regret.
To whom they shewed, how those marchants were x

Arriu’d in place, their bondslaues for to buy,
And therefore prayd, that those same captiues there
Mote to them for their most commodity
Be sold, and mongst them shared equally.
This their request the Captaine much appalled;
Yet could he not their iust demaund deny,
And willed streight the slaues should forth be[578] called,
And sold for most aduantage not to be forstalled.
Then forth the good old Melibœ was brought, xi

And Coridon, with many other moe,
Whom they before in diuerse spoyles had caught:
All which he to the marchants sale did showe.
Till some, which did the sundry prisoners knowe,
Gan to inquire for that[579] faire shepherdesse,
Which with the rest they tooke not long agoe,
And gan her forme and feature to expresse,
The more t’augment her price, through praise of comlinesse.
To whom the Captaine in full angry wize xii

Made answere, that the Mayd of whom they spake,
Was his owne purchase and his onely prize,
With which none had to doe, ne ought partake,
But he himselfe, which did that conquest make;
Litle for him to haue one silly lasse:
Besides through sicknesse now so wan and weake,
That nothing meet in marchandise to passe.
So shew’d them her, to proue how pale and weake she was.
The sight of whom, though now decayd and mard, xiii

And eke but hardly seene by candle-light,
Yet like a Diamond of rich regard,
In doubtfull shadow of the darkesome night,
With starrie beames about her shining bright,
These marchants fixed eyes did so amaze,
That what through wonder, and what through delight,
A while on her they greedily did gaze,
And did her greatly like, and did her greatly praize.
At last when all the rest them offred were, xiv
And prises[580] to them placed at their pleasure,
They all refused in regard of her,
Ne ought would buy, how euer prisd with measure,
Withouten her, whose worth aboue all threasure
They did esteeme, and offred store of gold.
But then the Captaine fraught with more displeasure,
Bad them be still, his loue should not be sold:
The rest take if they would, he her to him would hold.
Therewith some other of the chiefest theeues xv

Boldly him bad such iniurie forbeare;
For that same mayd, how euer it him greeues,
Should with the rest be sold before him theare,
To make the prises[581] of the rest more deare.
That with great rage he stoutly doth denay;
And fiercely drawing forth his blade, doth sweare,
That who so hardie hand on her doth lay,
It dearely shall aby, and death for handsell pay.
Thus as they words amongst them multiply, xvi

They fall to strokes, the frute of too much talke,
And the mad steele about doth fiercely fly,
Not sparing wight, ne leauing any balke,
But making way for death at large to walke:
Who in the horror of the griesly night,
In thousand dreadful shapes doth mongst them stalke,
And makes huge hauocke, whiles the candlelight
Out quenched, leaues no skill nor difference of wight.
Like as a sort of hungry dogs ymet xvii

About some carcase by the common way,
Doe fall together, stryuing each to get
The greatest portion of the greedie pray;
All on confused heapes themselues assay,
And snatch, and byte, and rend, and tug, and teare;
That who them sees, would wonder at their tray,
And who sees not, would be affrayd to heare.
Such was the conflict of those cruell Brigants there.
But first of all, their captiues they doe kill, xviii

Least they should ioyne against the weaker side,
Or rise against the remnant at their will;
Old Melibœ is slaine, and him beside
His aged wife, with many others wide,
But Coridon escaping craftily,
Creepes forth of dores, whilst darknes him doth hide,
And flyes away as fast as he can hye,
Ne stayeth leaue to take, before his friends doe dye.
But Pastorella, wofull wretched Elfe, xix

Was by the Captaine all this while defended,
Who minding more her safety then himselfe,
His target alwayes ouer her pretended;[582]
By meanes whereof, that mote not be amended,
He at the length was slaine, and layd on ground,
Yet holding fast twixt both his armes extended
Fayre Pastorell, who with the selfe same wound
Launcht through the arme, fell down with him in drerie swound.
There lay she couered with confused preasse xx

Of carcases, which dying on her fell.
Tho when as he was dead, the fray gan ceasse,
And each to other calling, did compell
To stay their cruell hands from slaughter fell,
Sith they that were the cause of all, were gone.
Thereto they all attonce agreed well,
And lighting candles new, gan search anone,
How many of their friends were slaine, how many fone.
Their Captaine there they cruelly found kild, xxi

And in his armes the dreary dying mayd,
Like a sweet Angell twixt two clouds vphild:
Her louely light was dimmed and decayd,
With cloud of death vpon her eyes displayd;
Yet did the cloud make euen that dimmed light
Seeme much more louely in that darknesse layd,
And twixt the twinckling of her eye-lids bright,
To sparke out litle beames, like starres in foggie night.
But when they mou’d the carcases aside, xxii

They found that life did yet in her remaine:
Then all their helpes they busily applyde,
To call the soule backe to her home againe;
And wrought so well with labour and long paine,
That they to life recouered her at last.
Who sighing sore, as if her hart in twaine
Had riuen bene, and all her hart strings brast,
With drearie drouping eyne lookt vp like one aghast.
There she beheld, that sore her grieu’d to see, xxiii

Her father and her friends about her lying,
Her selfe sole left, a second spoyle to bee
Of those, that hauing saued her from dying,
Renew’d her death by timely death denying:
What now is left her, but to wayle and weepe,
Wringing her hands, and ruefully loud crying?
Ne cared she her wound in teares to steepe,
Albe with all their might those Brigants her did keepe.
But when they saw her now reliu’d[583] againe, xxiv

They left her so, in charge of one the best
Of many worst, who with vnkind disdaine
And cruell rigour her did much molest;
Scarse yeelding her due food, or timely rest,
And scarsely suffring her infestred wound,
That sore her payn’d, by any to be drest.
So leaue we her in wretched thraldome bound,
And turne we backe to Calidore, where we him found.
Who when he backe returned from the wood, xxv

And saw his shepheards cottage spoyled quight,
And his loue reft away, he wexed wood,
And halfe enraged at that ruefull sight,
That euen his hart for very fell despight,
And his owne flesh he readie was to teare,
He chauft, he grieu’d, he fretted, and he sight,
And fared like a furious wyld Beare,
Whose whelpes are stolne away, she being otherwhere.
Ne wight he found, to whom he might complaine, xxvi

Ne wight he found, of whom he might inquire;
That more increast the anguish of his paine.
He sought the woods; but no man could see there:[584]
He sought the plaines; but could no tydings heare.
The woods did nought but ecchoes vaine rebound;
The playnes all waste and emptie did appeare:
Where wont the shepheards oft their pypes resound,
And feed an hundred flocks, there now not one he found.
At last as there he romed vp and downe, xxvii

He chaunst one comming towards him to spy,
That seem’d to be some sorie simple clowne,
With ragged weedes, and lockes vpstaring hye,
As if he did from some late daunger fly,
And yet his feare did follow him behynd:
Who as he vnto him approched nye,
He mote perceiue by signes, which he did fynd,
That Coridon it was, the silly shepherds hynd.
Tho to him running fast, he did not stay xxviii

To greet him first, but askt where were the rest;
Where Pastorell? who full of fresh dismay,
And gushing forth in teares, was so opprest,
That he no word could speake, but smit his brest,
And vp to heauen his eyes fast streming threw.
Whereat the knight amaz’d, yet did not rest,
But askt againe, what ment that rufull hew;

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© sellier european law publishers

© sellier european law publishers

ISBN (print) 978-3-86653-241-0

The Deutsche Nationalbibliothek lists this publication in the Deut­sche

© 2015 by sellier european law publishers GmbH, Munich.

All rights reserved. No part of this publication may be reproduced,

Production: Karina Hack, Munich. Typesetting: fidus Publikations-Ser­­­

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Parties to any transaction require predictability and legal certainty, as it is

To reach the desired predictability and legal certainty in an international

The Regulation (EC) No 593/2008 of the European Parliament and of the

New York, 11 October 2014 Franco Ferrari

© sellier european law publishers

Dr. Markus Altenkirch, LL.M. (London)

Dr. Christoph Althammer

Dr. Jan Asmus Bischoff

Dr. Tim W. Dornis, J.S.M. (Stanford), Attorney-at-law (New York)

Dr. Ulrich Kühle

Dr. Jan D. Lüttringhaus, LL.M. (Columbia)

Dr. Spyros Makris, LL.M. (Konstanz)

Dr. Sebastian Omlor, LL.M. (NYU), LL.M. Eur.

Dr. Francesca Ragno

Dr. Martin Schmidt-Kessel

Dr. Ansgar Staudinger

List of Authors vii

Regulation (EC) No 593/2008 of the European

Chapter II: Uniform Rules 73

Chapter III: Other Provisions 478

Chapter IV: Final Provisions 511

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in

1 OJ C 318, 23.12.2006, p. 56.

recognition of decisions in civil and commercial matters.3 The programme

of contract. Where the contract cannot be categorised as being one of the

and that the concept be interpreted harmoniously in Regulation (EC) No 44/

9 OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive 2008/18/EC of

10 OJ L 280, 29.10.1994, p. 83.

11 OJ L 166, 11.6.1998, p. 45.

Council concerning the procedures and conditions according to which

HAVE ADOPTED THIS REGULATION:

Article 1: Material scope

14 OJ L 345, 19.12.2002, p.1. Directive as last amended by Directive 2008/19/EC (OJ

Article 2: Universal application

Chapter II: Uniform Rules

Article 3: Freedom of choice

Article 4: Applicable law in the absence of choice

Article 5: Contracts of carriage

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