Why the Proposed Optional Common European Sales Law has not but should have Abandoned the Principle of All or Nothing

Abstract

It is widespread accepted that a creditor, who after a breach of contract wishes to safeguard his entitlement to full compensation for loss incurred, has a responsibility to take reasonable steps to mitigate this loss. There are, however, different views with regard to the scope of this duty to mitigate. Here it is advocated that the legal consequences of a failure to avert or minimize a loss must be similar to those of any joint occurrence of a fault of the wrongdoer with neglect of the aggrieved party. This implies that the liability of the wrongdoer should be reduced by apportioning the loss, which both parties could and should have avoided, between them both. Most modern legal systems do in fact acknowledge the assimilation of the doctrines of contributory negligence and failure to mitigate the loss and thus recognize the prospect of an apportionment of the damage. Not so, however, the European Commission's Expert Group. They exempt the debtor from liability insofar as the creditor contributed to his own loss. This contribution presents some critical reflections on how the duty to mitigate the loss is sanctioned in the newly proposed instrument on European contract law. The author illustrates that the provision in question - Article 163 of the proposal - does not provide for an adequate representation of the latest developments in the various European legal systems on this matter.