Identities in Contract: Merchant Law in Europe and the Future of European Contract Law

Abstract

The European Union legislator has concentrated on the consumer contract neglecting its counterpart, the commercial contract, the B2B transaction. The result is the absence of any dedicated EU commercial contract law. By contrast, international codification work has concentrated only on commercial contract law. A new dichotomy of consumer and trader or entrepreneur has thereby emerged. This is not part of the traditional legal orders of the EU Member States. Most European jurisdictions except the UK maintain another dichotomy, that of merchant and non-merchant. Another distinction remains, that of the objective and subjective approaches taken towards defining commercial transactions. This article observes that only the subjective approach has inspired EU legislation which has led to an identity-based structure of European contract law of which the trader and consumer dichotomy is one expression. The author criticizes this approach and proposes to explore the objective basis for future European contract law.