Self-help and the organization of remedies. The fact that a remedy/right can be applied without any court intervention also de facto influences the organization of remedies. The easier a remedy can be applied, the fewer hurdles a creditor (a consumer) has to take to be able to invoke a remedy, and the more consumer-friendly the organization of remedies will be.

Terminology. Another important aspect to consider is the terminology in this domain. In contributions about European (consumer) contract law, the terms ‘extrajudicial remedies’ or ‘unilateral remedies’ will oft en be encountered when describing a remedy for breach of contract that can be applied by the creditor without prior court intervention. A remedy that needs prior court intervention is oft en described as a ‘judicial remedy ’. Those terms are not used in US doctrine which makes a sharp distinction between, on the one hand, the so-called ‘remedies’ (such as damages and specific performance) that can only be applied judicially and require prior court intervention and, on the other hand, the so-called rights to self-help (such as suspension and termination of the contract) or ‘privately administered remedies’.

EU CONSUMER SALES ACQUIS

CONSUMER SALES DIRECTIVE PROVIDES NO CLEAR GUIDELINES

The doubtful case for self-help and termination. The 15th recital of the Consumer Sales Directive prescribes that it will be necessary to look at national law for the specific arrangement of the remedy of termination.

Bianca is of the opinion that the remedy of termination can be invoked unilaterally in every case (whether national law prescribes it or not), and that this 15th recital only counts for ‘secondary procedural aspects’. However, in Belgian law for example, doctrine correctly follows a different approach: namely, that for this aspect (the judicial or unilateral character of this remedy), national law applies. For Belgian law this means that termination must – in principle – be invoked judicially. Only in case of an express resolutory clause or in extraordinary circumstances can termination be applied without court intervention (unilateral or extrajudicial termination).

Self-help for repair, replacement, and price reduction. When focusing on the remedies of repair, replacement, and price reduction, it should be noted that these remedies are not mentioned in this 15th recital of the Directive.