random
contractual allocation of risk: 2 clauses for unforseen circumstances
1. force majeure clauses
2. hardship clauses
contarct definition
a contract is a legally binding agreement: to be legally binding, it must meet certain requirements--> contract law ensures that contracts are binding, meaning that they can be enforced in court
subjective and objective interpretation
sub= gives priority to the parties true intention
obj= gives priority to the external expression
impossibility in civil law
1. absolute
2.relative
3.practical
4.moral and legal
5.specific and generic goods
defensive remedies
1. refuse to counterduty
2.suspend early
3. ius retentionis
types of damages
1. damages for delay
2. damages in lieu of performance
3. collateral damage
classification of contracts
1.based on the parties envolved (B2B, B2C, C2C)
2.based on the type of performance, so according to the obligations taken
3.based on the purpose of obligations taken: bilateral / unilateral
factors relevant to interpretation
1. falsa demostratio non nocet
2. common understanding
3. ambiguous clauses
4. expertise
2 criteria for granting specific performance in common law
1. adequacy of damage
2. unique subject matter
definition of contract for 3rd parties
a 3rd party obatins a right enforcable against the other 2
forseability of damages: english Vs civil law
english= standard course of events + special circumstance--> liable
civil= liable only for forseable damage
main principles of contract law
1. freedom of contract
2. binding force
3.absence of formalities
4. fairness
gap filling: 2 methods
1. ad hoc
2. default rules--> in civil codes or terms implied in law
change of circumstances: doctrines used in common and civil law
comm= frustration--> automatically terminates
civil= adaptation and renegotiation
linked contracts: termination
it can influence the other contracts--> pecl says that terminated sale contract also terminates credit agreement
contractually fixed sums: the 2 clauses
-liquidated damages clauses
-penalty clauses
sources of contract law
1. party agreement
2. official sources
3. informal rules
4. national law
5. european law
6.supranational law
3 functions of good faith in civil law
1. interpretative
2. restrictive (abuse of rights and unforseen circmustances)
3. supplementing
liability for damages: when is it excused?
common= strict liability, only frustration
civil= excused by force majeur
civil= direct representation / procuration
common= agent can bind his principal
termination:threshold
-pecl= foundamental non performance
-english= condition vs warrantly
-french= sufficiently serious breach
-german= second chance
-dutch= any breach
what is CISG
convention on the international scale of goods, concluded in 1980: idea that the adoption of uniform rules promotes development of international trade
policing unfair terms in EU
directive on unfair terms in consumer contracts
minimum harmonisation
non-negotiated term is unfair if it creates significant imbalance
legal limitation on damaes: positive and negative
-positive= expectation interest
-negative= reliance interest
what is assignement
transfer of a contractual right by one person, resulting in the assignee being able to claim from the debtor