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1
Brunner, Christoph. Force majeure and hardship under general contract principles: Exemption for non-performance in international arbitration. Austin: Wolters Kluwer Law & Business, 2009.
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2
Mazzacano, Peter J. Exemptions for the non-performance of contractual obligations in CISG Article 79: The quest for uniformity in international sales law. Cambridge: Intersentia, 2014.
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3
1945-, Gilbert Richard J., i Jacquemin Alexis, red. Barriers to entry and strategic competition. London: Routledge, 2001.
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4
Oranburg, Seth. Contract Law of Conditions, Performance, Non-Performance, and Excuse of Performance. Independently Published, 2019.
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5
Pascal, Pichonnaz. Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.7. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0134.
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This commentary analyses Article 7.1.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning force majeure. According to Art 7.1.7, force majeure can be broadly defined as ‘the result of an impediment beyond a party's control and which that party could not reasonably have taken into account at the time of conclusion of the contract, or have avoided or overcome it or avoided or overcome its consequences on the ability to perform’. In other words, when non-performance is triggered by an event which could be qualified as force majeure, the obligor is no longer liable for damages. However, force majeure does not remove the ‘non-performance’ as such; as a consequence, the aggrieved party still has the right to terminate the stranded contract. This commentary discusses the relationship between the application of force majeure clauses and contractual practice, Art 7.1.7(1) as a default rule, consequences of force majeure, and burden of proof relating to force majeure.
6
Harriet, Schelhaas. Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0128.
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This commentary analyses Article 7.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the definition of non-performance. Article 7.1.1 defines non-performance as ‘failure by a party to perform any of its obligations under the contract, including defective performance or late performance’. Non-performance under Art 7.1.1 also includes violations of accessory obligations, such as a duty of confidentiality or the duty to co-operate, including the accessory obligations of the aggrieved party. This commentary discusses reasons for non-performance, the concept of ‘default’, the relationship between non-performance and non-conformity, vicarious liability for contractual obligations, and the burden of proof relating to non-performance.
7
Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.6. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0155.
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This commentary analyses Article 7.4.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning proof of harm by current price. If the aggrieved party has terminated the contract and has not made a replacement transaction but there is a current price for the performance contracted for, Art 7.4.6 stipulates that it may recover the difference between the contract price and the price current at the time of termination as well as damages for any further harm. The aim of Art 7.4.6 is to provide a measure of certainty by stipulating the measure of damages recoverable in the case where the aggrieved party has not entered into a replacement transaction. The burden of proof is upon the aggrieved party to prove that it was entitled to terminate the contract between the parties and that there is a ‘current price’, and upon the non-performing party to prove that the aggrieved party did enter into a replacement transaction.
8
Peter, Huber. Ch.7 Non-performance, s.3: Termination, Art.7.3.6. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0147.
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This commentary analyses Article 7.3.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning restitution with respect to contracts to be performed at one time. Under Art 7.3.6, when a contract to be performed at one time is terminated, either party may claim restitution of whatever it has supplied under the contract, provided that such party concurrently makes restitution of whatever it has received under the contract. This commentary discusses contracts to be performed at one time, concurrent restitution, reasonable allowance for restitution in kind that is not possible or appropriate, compensation for expenses reasonably required to preserve or maintain the performance received, rules on non-performance, rights of third parties with respect to performance, and burden of proof relating to restitution.
9
Peter, Huber. Ch.7 Non-performance, s.3: Termination, Art.7.3.7. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0148.
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This commentary analyses Article 7.3.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning restitution with respect to contracts to be performed over a period of time. When a contract to be performed over a period of time is terminated, Art 7.3.7 stipulates that restitution can only be claimed for the period after termination has taken effect, provided the contract is divisible. The purpose of this provision is to exclude retroactive restitution after termination of a divisible contract which was to be performed over a period of time, based on the idea that ‘it may be inconvenient to unravel performances that may have been made, in the past, over a long period of time’.
10
Peter, Huber. Ch.7 Non-performance, s.3: Termination, Art.7.3.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0142.
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This commentary analyses Article 7.3.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the aggrieved party's right to terminate the contract if the other party fails to perform an obligation under the contract. Art 7.3.1 sets out the requirements which must be met if one party wishes to terminate the contract in response to the other party's non-performance. The basic rule is that termination will be available as a remedy if the other party's non-performance amounts to a fundamental non-performance. This commentary discusses the policy considerations underlying Art 7.3.1, freedom of contract, termination for fundamental non-performance, termination after expiry of an additional period of time for performance, use of the Nachfrist mechanism within the doctrine of fundamental non-performance, termination for partial non-performance, burden of proof relating to termination, and effects of termination.
11
Peter, Huber. Ch.7 Non-performance, s.3: Termination, Art.7.3.5. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0146.
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This commentary analyses Article 7.3.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the general effects of a lawful termination. Lawful termination refers to a termination which has been declared (in time) and which is based on a valid ground for termination. According to Art 7.3.5, termination of the contract releases both parties from their obligation to effect and to receive future performance. Termination does not preclude a claim for damages for non-performance and has no effect on any provision in the contract for the settlement of disputes or any other term of the contract which is to operate even after termination. This commentary discusses release from future performance obligations, autonomy of ‘termination-resistant’ provisions, effects of unlawful termination, and proprietary aspects of rules in Arts 7.3.5–7.3.7.
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Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.5. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0154.
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This commentary analyses Article 7.4.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning proof of harm in case of replacement transactions. Under Art 7.4.5, entry into a substitute transaction generally entitles the aggrieved party to recover damages. If the aggrieved party has terminated the contract and has made a replacement transaction within a reasonable time and in a reasonable manner, it may recover the difference between the contract price and the price of the replacement transaction as well as damages for any further harm. This commentary discusses Art 7.4.5's overlap with Art 7.4.8 and the burden of proof of the aggrieved party to establish that it has terminated the contract, that it was entitled to do so, and that it has made a replacement transaction within a reasonable time and in a reasonable manner.
13
Peter, Huber. Ch.7 Non-performance, s.3: Termination, Art.7.3.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0143.
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This commentary analyses Article 7.3.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning notice of termination. Under Art 7.3.2, termination of the contract has to be made by notice to the other party and sets a time limit for giving notice in certain cases of breach. The provision serves two objectives: first, it aims to prevent the aggrieved party from speculating on market fluctuations by postponing its decision on whether or not to terminate and, secondly, it allows the non-performing party to avoid any losses due to uncertainty as to whether the aggrieved party will terminate the contract. This commentary also discusses time limits for the exercise of the right to terminate and the burden of proof concerning notice of termination.
14
Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.4. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0153.
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This commentary analyses Article 7.4.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the foreseeability of harm. According to Art 7.4.4, the non-performing party is liable only for harm which it foresaw or could reasonably have foreseen at the time of the conclusion of the contract as being likely to result from its non-performance. This rule places a limit on the liability of the non-performing party. This commentary discusses the concept of foresight enshrined in Art 7.4.4, the phrases ‘could reasonably have foreseen’, ‘at the time of the conclusion of the contract’, and ‘likely to result’ as they relate to the foreseeability of harm. It also considers intentional or grossly negligent non-performance and the burden of proof of the aggrieved party to establish the foreseeability of harm.
15
Harriet, Schelhaas. Ch.7 Non-performance, s.1: Non-performance in general, Introduction to Section 7.1 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0127.
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Section 7.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the concept of non-performance. It first presents a definition of non-performance before discussing the three main remedies: the right to performance, the right to terminate the contract, and the right to damages. It then outlines the conditions under which the parties can react to non-performance before any of the main remedies are invoked. First, the aggrieved party (the obligee) may withhold performance temporarily and it may fix an additional period of time for performance. Second, the non-performing party (the obligor) may have a right to cure non-performance and it may object to its liability for non-performance because of an exemption clause, interference of the obligee, or force majeure. This introduction to Section 7.1 discusses the relationship between the different remedies, with particular emphasis on the choice of remedy, accumulation of remedies, and non-performance and mistake. It also considers the general limitations to remedies for non-performance.
16
Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0150.
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This commentary analyses Article 7.4.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of the aggrieved party to recover damages. According to Art 7.4.1, any non-performance gives the aggrieved party a right to damages either exclusively or in conjunction with any other remedies except where the non-performance is excused under these Principles. The right of the aggrieved party to recover damages depends upon proof of non-performance by the other party to the contract. There is no requirement that the aggrieved party prove that the non-performance was attributable to the fault of the other party to the contract. Proof of fault may be relevant when deciding whether or not there has been non-performance, but fault is not the touchstone of liability in damages. Rather, the non-performance is what triggers liability in damages. The burden of proof is upon the aggrieved party to prove the non-performance of the defendant, and upon the defendant to prove that its non-performance was excused.
17
Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.11. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0160.
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This commentary analyses Article 7.4.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the manner of monetary redress. According to Art 7.4.11, damages are to be paid in a lump sum. However, they may be payable in instalments where the nature of the harm makes this appropriate. Damages to be paid in instalments may be subjected to indexation. This provision was considered to be ‘the mode of payment best suited to international trade’. A lump sum payment enables the parties to settle their dispute, draw a line under their relationship (assuming the contract to have been terminated), and move on to new contractual relationships elsewhere. It also avoids the administrative burdens associated with periodical payments of damages.
18
Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.12. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0161.
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This commentary analyses Article 7.4.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the currency in which to assess damages. Art 7.4.12 deals with the assessment of damages and the currency in which damages are to be assessed, and not with the currency of payment under the contract. According to this provision, damages are to be assessed either in the currency in which the monetary obligation was expressed or in the currency in which the harm was suffered, whichever is more appropriate. The text of Art 7.4.12 does not make it clear who is to decide which currency is ‘more appropriate’ for this purpose. However, the Official Comment states that the choice between the two currencies is ‘left to the aggrieved party, provided that the principle of full compensation is respected’.
19
Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.13. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0162.
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This commentary analyses Article 7.4.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the agreed payment for non-performance. Art 7.4.13 applies where a term of the contract provides that ‘a party who does not perform is to pay a specified sum to the aggrieved party for such non-performance’. According to Art 7.4.13, the aggrieved party is entitled to recover the specified sum from the non-performing party and it can do so irrespective of the harm which it has in fact suffered as a result of the non-performance. However, the specified sum may be reduced to a reasonable amount where it is grossly excessive in relation to the harm resulting from the non-performance and to the other circumstances. This commentary discusses the scope of Art 7.4.13 and the burden of proof relating to payment for non-performance.
20
Force majeure and hardship under general contract principles: Exemption for non-performance in international arbitration. Austin: Wolters Kluwer Law & Business, 2009.
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21
Peter, Huber. Ch.7 Non-performance, s.3: Termination, Introduction to Section 7.3 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0141.
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Section 7.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the aggrieved party's right to terminate the contract if the other party does not perform. However, the PICC also severely restrict the scope of termination as a remedy. The crucial question is not whether there is a right to terminate, but rather when it will be available to the aggrieved party. Art 7.3.1(1) accepts the doctrine of fundamental breach as the basic rule for the availability of termination. For cases of delay, Art 7.3.1(3) introduces the Nachfrist mechanism. The basic structure of the system of remedies in Section 7.3 bears a strong resemblance to both the Commission on European Contract Law, Principles of European Contract Law (1998), and the United Nations Convention on Contracts for the International Sale of Goods (CISG) regimes.
22
Harriet, Schelhaas. Ch.7 Non-performance, s.2: Right to performance, Introduction to Section 7.2 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0135.
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Section 7.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the right to performance, one of the remedies available for the non-performance of a contract. It covers the right to require performance of monetary obligations, the right to require the performance of non-monetary obligations, cure for defective performance, penalties for non-compliance, and the right of the aggrieved party to change the remedies sought. Section 7.2 is not modelled on any particular domestic jurisdiction, or on an international treaty or set of rules. However, the discretionary power to attach penalties to a court order is modelled on French law.
23
Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Introduction to Section 7.4 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0149.
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Section 7.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) is concerned with remedy of damages. It covers the right to recover damages in the event of non-performance as well as the measure of damages, particularly the use of foreseeability as a limiting factor on the recoverability of damages. A notable feature of Section 7.4 is that the entitlement to recover damages is not linked to any notion of fault, nor to any system of notification of the defaulting party. Instead, the right arises on non-performance by the other party to the contract unless the non-performance is excused. The articles in Section 7.4 build upon, and in places develop, the rules to be found in the United Nations Convention on Contracts for the International Sale of Goods (CISG).
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Yesim, Atamer. Ch.6 Performance, s.1: Performance in general, Art.6.1.17. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0122.
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This commentary analyses Article 6.1.17 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning cases where a request for public permission was filed with the relevant authority but was rejected. According to Art 6.1.17, the refusal of a permission affecting the validity of the contract renders the contract void. If the refusal affects the validity of some terms only, only such terms are void if, having regard to the circumstances, it is reasonable to uphold the remaining contract. Where the refusal of a permission renders the performance of the contract impossible in whole or in part, the rules on non-performance apply. This commentary discusses cases where application for public permission was refused, as well as the effect of refusal on the validity of contract and on performance.
25
Roy, Goode, Kronke Herbert i McKendrick Ewan, red. Part III Harmonization of General Contract Law, 16 Restatements of Contract Law. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198735441.003.0017.
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This chapter examines non-binding restatements of contract law, in particular the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law. It considers the nature, purposes, scope, sphere of application, and substantive content of these Principles (including freedom of contract, pacta sunt servanda, good faith, interpretation, adequate assurance of performance, specific performance, and other remedies and hardship and change of circumstances). The chapter considers the extent to which these Principles can be used in litigation and in arbitration and their relative advantages and disadvantages.
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Naidoo, André. Complete Contract Law. Oxford University Press, 2021. http://dx.doi.org/10.1093/he/9780198749868.001.0001.
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This book provides choice extracts, supported by clear commentary and useful learning features. The text starts with an introduction to contract law. Part I looks at creating the contract, with coverage of the offer, acceptance, the legal partnership, and consideration and promissory estoppel. Part II is about the content of the contract and performance. It looks at the terms of the contract, exemption clauses, and unfair terms and issues related to breach and termination of the contract. Part III is about enforcement of the contract. It considers compensatory damages following a breach as well as third-party rights and non-compensatory remedies. Part IV explains the facts that end a contract such as misrepresentation, duress, frustration, and mistake.
27
Chunyan, Ding. Contract Formation under Chinese Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0002.
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This chapter discusses the law on contract formation in Chinese law which largely follows the UN Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles of International Commercial Contracts. An objective approach is adopted in determining the parties’ intentions but exceptions are allowed where parties have not accurately expressed their true agreement, the contract is a sham, or one party’s intentional false expression is known to the other. For a contract to be binding, its ‘essential elements’ must be agreed (names of the parties, subject matter, and quantity); other terms may be agreed by the parties after the conclusion of the contract or, failing that, determination by the court. In reality, however, courts use soft laws and the nature of the contract, to augment what is required. A purported acceptance which makes a ‘non-material’ alteration to the content of the offer can bind the offeror unless the offeror timely rejects it, but there is little scope for non-materiality. Nevertheless, even a materially varied acceptance can bind if the original offeror’s performance amounts to acceptance where the usage of transaction or the express terms of the offer allows acceptance by conduct. Furthermore, courts show willingness to recognize an acceptance by conduct of performance beyond these two situations. There is no general requirement of form for a valid contract, although exceptionally, laws or administrative regulations may require writing or approval/registration. There is no general requirement of consideration; gratuitous contracts are enforceable. However, the latter attract far less legal force than onerous contracts. An offer is irrevocable only if it is an option or if the offeree reasonably believes the offer is irrevocable and has made preparations for the performance of the contract. An acceptance takes effect only when it arrives. A late acceptance that is not attributed to the offeree is ineffective unless the offeror gives timely notice of its intention to ratify the acceptance. Electronic means of communication are treated in the same way as paper-based communications with specific rules to determine the time and place of contract formation and the validity of electronic signature. Reliance-based pre-contractual liability may be imposed, on the basis of the requirement of good faith, in the circumstances including negotiating with no intention of concluding a contract, intentional concealment of material facts, or breach of confidentiality.
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Beatson FBA, Jack, Andrew Burrows FBA, QC (Hon) i John Cartwright. Anson's Law of Contract. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198829973.001.0001.
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Anson’s Law of Contract offers an accurate and authoritative account of the law and its underlying principles. This 31st edition continues to provide comprehensive and detailed coverage of all topics covered on modern contract law courses, and has been revised and updated to incorporate all notable developments in case law, legislation, and academic debate. Topics covered include, in the first part, the agreement, the formation of the contract, and promissory estoppel. The second part looks at the terms of the contract, exemption clauses, and unfair terms. Next the book looks at incapacity, mistake, misrepresentation and non-disclosure, duress, and illegality. The fourth part considers performance and discharge. The next part looks at damages and specific remedies. The sixth part of the book covers third parties, assignment and agency in terms of the limits of the contractual obligation.
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Merkin QC, Robert, i Séverine Saintier. Poole's Casebook on Contract Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198817864.001.0001.
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The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. The book begins with some guidance on reading cases, and then turns to agreement and agreement problems. Next it looks at the enforceability of promises and intention to be legally bound and the capacity to contract. The content of the contract is examined. Exemption clauses and unfair contract terms are analysed in detail. The book also considers issues relating to breach of contract and remedies, and excuses for non-performance. Finally it discusses initial impossibility, misrepresentation, duress, undue influence, and illegality.
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Merkin QC, Robert, i Séverine Saintier. Poole's Casebook on Contract Law. Wyd. 15. Oxford University Press, 2021. http://dx.doi.org/10.1093/he/9780198869986.001.0001.
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Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. The book begins with some guidance on reading cases, and then turns to agreement and agreement problems. Next it looks at the enforceability of promises and intention to be legally bound and the capacity to contract. The content of the contract is examined. Exemption clauses and unfair contract terms are analysed in detail. The book then considers initial impossibility, misrepresentation, duress, undue influence, and illegality. The book ends by discussing issues relating to breach of contract and remedies, and excuses for non-performance.
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Merkin QC, Robert, i Séverine Saintier. Poole's Textbook on Contract Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198816980.001.0001.
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Course-focused and comprehensive, the series provides an accessible overview of the key areas on the law curriculum. This book has been guiding students through contract law for many years. It places the law of contract clearly within its wider context, including the growing distinction between commercial and consumer contracting, before proceeding to provide detailed yet accessible treatment of all the key areas encountered when studying contract law. Part 1 considers formation, looking in detail at agreement, certainty and agreement mistakes, the enforceability of promises and the intention to be legally bound. Part 2 looks at content, interpretation, exemption clauses and unfair terms, performance, and breach. Part 3 considers the enforcement of contractual obligations including remedies, detailed treatment of damages for breach of contract, privity and third party rights, and discharge by frustration. Part 4 looks at methods of policing the making of a contract, such as non-agreement mistakes which render the contract void, misrepresentation, duress, undue influence, unconscionable bargains, and illegality. The book also includes references to relevant EU consumer legislation and introduces students to the various attempts (international and European) to produce a harmonized set of contract principles.
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Merkin QC, Robert, i Séverine Saintier. Poole's Textbook on Contract Law. Wyd. 15. Oxford University Press, 2021. http://dx.doi.org/10.1093/he/9780198869993.001.0001.
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Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This book has been guiding students through contract law for many years. It places the law of contract clearly within its wider context, including the growing distinction between commercial and consumer contracting, before proceeding to provide detailed yet accessible treatment of all the key areas encountered when studying contract law. Part 1 considers formation, looking in detail at agreement, certainty and agreement mistakes, the enforceability of promises and the intention to be legally bound. Part 2 looks at content, interpretation, exemption clauses and unfair terms, performance, and breach. Part 3 considers the enforcement of contractual obligations including remedies, detailed treatment of damages for breach of contract, privity and third party rights, and discharge by frustration. Part 4 looks at methods of policing the making of a contract, such as non-agreement mistakes which render the contract void, misrepresentation, duress, undue influence, unconscionable bargains, and illegality. The book also includes references to relevant EU consumer legislation and introduces students to the various attempts (international and European) to produce a harmonized set of contract principles.
33
Harriet, Schelhaas. Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.3. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0130.
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This commentary analyses Article 7.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of a contracting party to withhold or suspend performance. Art 7.1.3 lays down the exceptio non adimpleti contractus and confers on a contracting party the right to withhold or suspend performance if the other party does not comply with its obligations. Where the parties are to perform simultaneously, either party may withhold performance until the other party tenders its performance. Where the parties are to perform consecutively, the party that is to perform later may withhold its performance until the first party has performed. This commentary discusses the requirements for allowing the suspension of performance, including non-performance of the other party. It also considers order of performance, partial performance, and legal consequences of withholding or suspending performance.
34
Francesca, Mazza. Ch.9 Assignment of rights, transfer of obligations, assignment of contracts, s.1: Assignment of rights, Art.9.1.9. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0178.
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This commentary analyses Article 9.1.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning non-assignment clauses. Under Art 9.1.9, the assignment of a right to the payment of a monetary sum is effective notwithstanding an agreement between the assignor and the obligor limiting or prohibiting such an assignment. However, the assignor may be liable to the obligor for breach of contract. The assignment of a right to other performance is ineffective if it is contrary to an agreement between the assignor and the obligor limiting or prohibiting the assignment. This commentary discusses rights to payment of a monetary sum and to a non-monetary performance, along with the legal consequences of violating a non-assignment clause.
35
Harriet, Schelhaas. Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0129.
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This commentary analyses Article 7.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning interference by the other party. Art 7.1.2 deals with the situation known as mora creditoris — the obligee's failure to perform its duty to co-operate in order to allow the performance of the other party. It also addresses the situation in which the obligor's failure to perform is not due to a lack of co-operation by the obligee, but to another event for which the obligee bears the risk. The obligee that is responsible for the other party's resulting failure to perform is estopped from invoking non-performance. Art 7.1.2 is thus a particular instance of the general principle of the prohibition of venire contra factum proprium. This commentary also discusses partial interference, legal consequences of failure to perform, and the burden of proof relating to interference.
36
Stefan, Vogenauer. Ch.5 Content, third party rights and conditions, s.1: Content, Art.5.1.6. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0089.
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This commentary focuses on Article 5.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the determination of the quality of performance. Under Art 5.1.6, where the quality of performance is neither fixed by, nor determinable from, the contract, a party is bound to render a performance of a quality that is reasonable and not less than average in the circumstances. The provision is a specific application of one of the general underlying principles of the PICC: the idea of favor contractus. This commentary discusses the priority of the general rules of contractual interpretation, average quality as a minimum threshold, standard of reasonableness, and burden of proof of the party alleging non-performance because of insufficient quality of performance.
37
Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.4. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0058.
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This commentary focuses on Article 3.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning remedies for non-performance. Art 3.2.4 solves the notorious conflict between the rules on mistake and the rules on non-performance in favour of the latter. It stipulates that a party is not entitled to avoid the contract on the ground of mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance. This commentary discusses the requirements for exclusion of the right of avoidance for mistake, consequences of non-performance, and burden of proof relating to non-performance.
38
Peter, Huber. Ch.3 Validity, s.1: General provisions, Art.3.1.3. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0053.
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This commentary focuses on Article 3.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning initial impossibility. Art 3.1.3 excludes those domestic rules that invalidate a contract simply because there is initial impossibility or simply because (‘the mere fact that’) one party was not entitled to dispose of the assets concerned. As a result of Art 3.1.3, neither initial impossibility nor lack of power to dispose of the assets as such makes a contract invalid. However, this does not mean that initial impossibility or lack of power to dispose of the assets has no consequences. On the contrary, these cases are treated under the PICC's rules on non-performance or mistake. Art 3.1.3 applies irrespective of how the relevant domestic law classifies its rule that initial impossibility (or initial lack of power of disposition) leads to invalidity. It also does not cover other domestic rules on invalidity.
39
Harriet, Schelhaas. Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.4. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0131.
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This commentary analyses Article 7.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the non-performing party's right to cure its non-performance. Under Art 7.1.4, the non-performing party is allowed to cure its non-performance. The aggrieved party is obliged to allow cure if it has no legitimate interest in refusing. If the non-performing party offers cure, the remedies of the aggrieved party are only available after the other party has had a second chance to perform or cure its performance. This commentary discusses the requirements with respect to cure by non-performing party, the right of the non-performing party to cure its non-performance even after a notice of termination by the aggrieved party, and legal consequences of cure.
40
Harriet, Schelhaas. Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.6. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0133.
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This commentary analyses Article 7.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning exemption clauses. According to Art 7.1.6, a clause which limits or excludes one party's liability for non-performance, or which permits one party to render performance substantially different from what the other party reasonably expected, may not be invoked if it would be grossly unfair to do so. The possibility of striking down exemption clauses by virtue of Art 7.1.6 is an exceptional control mechanism. Art 7.1.6 acts as a specific safeguard against unfair exemption clauses. The scope of this provision applies not only to exemption clauses in standard terms, but also to individually negotiated exemption clauses. An exemption clause may not be invoked if it would be grossly unfair to do so. This commentary also discusses the legal consequences of an exemption clause being ‘grossly unfair’.
41
Harriet, Schelhaas. Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.5. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0132.
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This commentary analyses Article 7.1.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the additional period for performance allowed by the aggrieved party in a case of non-performance. Art 7.1.4 stipulates that the aggrieved party can only react to the other's party proposal to cure its non-performance by accepting appropriate and prompt cure. Under Art 7.1.5, the aggrieved obligee may adopt a proactive approach to non-performance. The obligee can set the obligor an additional period of time for finally performing its obligations. Art 7.1.5 also allows the obligee to resort to the full panoply of remedies after the period has lapsed, particularly to termination, even if the delay in performance is not fundamental. This commentary discusses the requirements for fixing an additional period of time, as well as the legal consequences of allowing an additional time limit for performance.
42
D--V--S, Miss. Trial Wherein Miss d--V--s Was Plaintiff, and the Rev. Dr. W-l-n, Defendant. in an Action of Ten Thousand Pounds, ... Against the Defendant for the Non-performance of a Marriage-contract. Creative Media Partners, LLC, 2018.
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43
MG, Bridge. Part II International Sales Governed by the UN Sale Convention 1980 (CISG), 12 Remedies for Breach of Contract. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198792703.003.0012.
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This chapter builds on the previous chapter's discussion in drawing distinctions between the CISG and English law. This time the chapter considers the remedies for a breach of contract. In the event of non-performance by one of the contracting parties, various remedies are made available to the other under the CISG, largely recognizable by a common lawyer if not always available in the circumstances and to the same extent in English law. There is, however, a major structural difference that should be observed from the outset. English law draws a sharp distinction between breach of contract and the effect on a contract of impossibility or frustrating circumstances.
44
Harriet, Schelhaas. Ch.7 Non-performance, s.2: Right to performance, Art.7.2.3. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0138.
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This commentary analyses Article 7.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning repair and replacement as cure for defective performance. Under Art 7.2.3, the right to performance includes the right to require the defect to be cured by means of a repair or replacement. Art 7.2.3 is the counterpart of Art 7.1.4, which gives the non-performing party a right to cure non-performance by, for instance, repair or replacement. Art 7.2.3 provides a right for the aggrieved party to request such a cure. This commentary also discusses repair and replacement with respect to payment of money, along with other forms of curing defects.
45
Harriet, Schelhaas. Ch.7 Non-performance, s.2: Right to performance, Art.7.2.4. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0139.
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This commentary analyses Article 7.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning judicial penalty. Under Art 7.2.4, where the court orders a party to perform, it may also direct that this party pay a penalty if it does not comply with the order. The penalty shall be paid to the aggrieved party unless mandatory provisions of the law of the forum provide otherwise. Payment of the penalty to the aggrieved party does not exclude any claim for damages. This commentary explains judicial penalty and the court's discretionary power to determine whether or not to impose a judicial penalty, and mandatory provisions with regard to the beneficiary.
46
Inadempimento delle obbligazioni: Accertamento, oneri probatori, danni patrimoniali e non patrimoniali. [Padua]: CEDAM, 2010.
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47
Harriet, Schelhaas. Ch.7 Non-performance, s.2: Right to performance, Art.7.2.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0137.
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This commentary analyses Article 7.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of an aggrieved party to require performance of non-monetary obligations. According to Article 7.2.2, a party may require performance from the other party who does not perform unless: performance is impossible in law or in fact; performance or, where relevant, enforcement is unreasonably burdensome or expensive; the party entitled to performance may reasonably obtain performance from another source; performance is of an exclusively personal character; or the party entitled to performance does not require performance within a reasonable time after it has — or ought to have — become aware of the non-performance. This commentary discusses the conditions and exceptions with respect to the right to require performance of a non-monetary obligation.
48
Harriet, Schelhaas. Ch.7 Non-performance, s.2: Right to performance, Art.7.2.5. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0140.
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This commentary analyses Article 7.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of the aggrieved party to change the remedies sought. An aggrieved party has the freedom to choose between the available remedies (that is, termination, damages, or performance), provided that the requirements for these remedies are met. According to Art 7.2.5, an aggrieved party that has already demanded performance may in certain circumstances invoke another remedy (ius variandi). Where the decision of a court for performance of a non-monetary obligation cannot be enforced, the aggrieved party may invoke any other remedy. This commentary discusses the requirements that an aggrieved party must satisfy before it can change its remedy, the required time limit for a notice of termination, and the question of consistency of a demand for performance with other remedies.
49
Harriet, Schelhaas. Ch.7 Non-performance, s.2: Right to performance, Art.7.2.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0136.
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This commentary analyses Article 7.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of an aggrieved party to require performance of monetary obligations. Art 7.2.1 stipulates that a creditor of a monetary obligation is always entitled to require payment of an agreed sum of money. This rule is an expression of the principle pacta sunt servanda. The PICC distinguish between the right to request performance of a monetary obligation and the right to demand performance of non-monetary obligations. A right to require payment is usually known as the ‘action for an agreed sum’ or ‘action for the price’, whereas performance of non-monetary obligations is referred to as ‘specific performance’. This commentary discusses the conditions for the right to demand payment, the effect of the currency in which payment is due on the application of Art 7.2.1, and cases where the right to require payment may be excluded.
50
Sonja, Meier. Ch.11 Plurality of obligors and of obligees, Introduction to Chapter 11 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0212.
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Chapter 11 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the plurality of obligors and obligees. It addresses those legal issues arising from the fact that performance of a contractual obligation is owed by more than one obligor and/or owed to more than one obligee. In principle, the chapter does not deal with questions of plurality of parties to a contract as such. One example is the question of whether the right of termination for fundamental non-performance (Art 7.3.1) may be exercised by just one out of several buyers, and the consequences this might entail. However, the question of whether one of the obligors or obligees may exercise a right of avoidance according to Section 3.2 of the PICC, and what the consequences of such avoidance might be, is discussed.