28 Book II

The definition of ‘contract’ in II. — 1:101(1) has been shortened. It now refers to ‘an agreement which is intended to give rise to a binding legal relationship or to have some other legal effect.’ The definition formerly contained additional words designed to cater for the case where there was no subjective intention but an agreement was carved out of what the parties said or did. However, that point is sufficiently provided for by a later Article (II. — 4:102) and does not need to be repeated here. There is a similar change in the definition of ‘juridical act’ in II. — 1:101(2). The earlier definition had been criticised by commentators on the ground that it did not make the element of intention necessary and was therefore too wide. Again, the point that intention may have to be objectively ascertained is sufficiently covered by a later Article (II. — 4:302). A reference to the rules on good faith and fair dealing in II. — 1:102 (Party autonomy) gave rise to confusion and has been deleted. The words ‘promise or undertaking’ formerly in II. — 1:103 (Binding effect) were criticised as unnecessary duplication. ‘Undertaking’ alone is now used. A new paragraph (3) has been added to II. — 1:106 (Form). This generalises a rule which originally appeared in the Chapter on donation. There are numerous changes in Chapter 3 in particular with regard to information duties, which reflect further work done by the Acquis Group and also react to many comments received. Of particular note is the provision on specific duties for businesses marketing to consumers (II. — 3:102), where paragraph (1) has been reformulated in order to reflect the underlying acquis more closely. The provisions on sanctions for breach of information duties have been refined and a new Article (II. — 3:501) on liability for damages for breach of a duty imposed by Chapter 3 has been included. The contra proferentem rule in II. — 8:103 has been modified and expanded, following a suggestion by the evaluative group formed by the Association Henri Capitant and the Société de Législation Comparée.