Chapter 2 - Hierarchy of Remedies – So Different and Yet So Alike

Summary

Meaning of hierarchy of remedies. The very concept of a ‘hierarchy of remedies’ might seem disturbing to a US scholar. Indeed, while EU scholars often refer to a hierarchy of sales remedies, US scholars almost never do. Does something like a ‘hierarchy’ of consumer sales remedies exist in case of breach of contract by a seller? The question that is asked is whether the legislator or case law consistently favors a certain remedy over another. If one remedy is favored over another – and one of the remedies is more readily available to the consumer – this implies a certain ‘hierarchy’ between them. On the other hand, it is also possible that the consumer is given a free choice between the remedies, if their respective conditions of application are fulfilled. In that case, there is no hierarchy between the remedies.

Of course, the mere examination of the ‘hierarchy of remedies’ in statutory law and case law, might give a distorted and rigid view of reality. This leaves out a lot of factors such as out-of-court negotiations, dispute resolution, and practical behavior that the seller and the buyer can adopt. One might think about a seller who agrees with the buyer to remedy a breach of contract in a certain way or a buyer informally asking a seller for the best solution. In this way, reality will be much more flexible than the theoretical rules that will be described and analyzed in this book.

Hierarchy of remedies as only a starting point towards an organization of remedies. Inquiring into the hierarchy of remedies is merely a starting point. When studying the ‘hierarchy of remedies’ only the ‘intrinsic characteristics’ of the remedy are taken into account: is the remedy subject to a seller's right to cure? Can it only be applied if another remedy is not adequate? Can it only be applied in case of a fundamental or substantial non-performance? The hierarchy of remedies is, of course, influenced by many other factors. Apart from the intrinsic factors, ‘extrinsic factors’ can also be taken into account. Two important factors that will be studied