Download - COMPARATIVE PRIVATE LAW NON-PERFORMANCE - LIABILITY University of Oslo Prof. Giuditta Cordero Moss
COMPARATIVE PRIVATE LAW
NON-PERFORMANCE -LIABILITY
University of Oslo
Prof. Giuditta Cordero Moss
Case I – Destruction of subject-matter (1)
• Sale of car components built on specifications
• An earthquake destroys the facilities and the stored components
• Delivery cannot be made according to contract
• Is the seller liable for non-performance?
Destruction of subject-matter (1)
• Norwegian law: Seller is excused
• German law: Seller is excused
• Italian law: Seller is excused
• English law: Seller is excused
• UNIDROIT: Seller is excused
• PECL: Seller is excused
• CISG: Seller is excused
Case II – Destruction of subject-matter (2)
• Sale of car components built on specifications• A fire destroys the facilities and the stored
components• The fire alarm had not been installed due to
illness of the person in charge of security in the seller’s company
• Delivery cannot be made according to contract• Is the seller liable for non-performance?
Destruction of subject-matter (2)
• Norwegian law: Seller is not excused
• German law: Seller is not excused
• Italian law: Seller is not excused
• English law: Seller is not excused
• UNIDROIT: Seller is not excused
• PECL: Seller is not excused
• CISG: Seller is not excused
Case III – Act of god (factum principis) (1)
• Sale of car components built on specifications
• New governmental regulations forbid export of various technical equipment, i.a. car components
• Delivery cannot be made according to contract
• Is the seller liable for non-performance?
Act of god (1)
• Norwegian law: Seller is excused
• German law: Seller is excused
• Italian law: Seller is excused
• English law: Seller is excused
• UNIDROIT: Seller is excused
• PECL: Seller is excused
• CISG: Seller is excused
Case IV – Act of god (factum principis) (2)
• Sale of car components built on specifications
• The seller’s export licence is withdrawn because of the seller’s non-compliance with governmental requiremenets
• Delivery cannot be made according to contract
• Is the seller liable for non-performance?
Act of god (2)
• Norwegian law: Seller is not excused
• German law: Seller is not excused
• Italian law: Seller is not excused
• English law: Seller is not excused
• UNIDROIT: Seller is not excused
• PECL: Seller is not excused
• CISG: Seller is not excused
Case V – Supplier’s failure
• Sale of car components built on specifications• The aluminium supplier fails to deliver aluminium
on time for the production of the components• The aluminium supplier is a recognised supplier
on the market, but due to extraordinary wheather conditions cannot ship on time
• Delivery cannot be made according to contract• Is the seller liable for non-performance?
Supplier’s failure
• Norwegian law: Seller is excused
• Italian law: Seller is excused
• German law: Seller is excused
• English law: Seller is not excused
• CISG: Seller is not excused
• UNIDROIT, PECL: Seller is not excused
Case VI – Sub-contractor’s failure
• Sale of car components built on specifications
• A sub-contractor fails to performe properly its part of the production, due to internal reorganisation
• Delivery cannot be made according to contract
• Is the seller liable for non-performance?
Sub-contractor failure
• Norwegian law: Seller is not excused
• German law: Seller is not excused
• Italian law: Seller is not excused
• English law: Seller is not excused
• UNIDROIT: Seller is not excused
• PECL: Seller is not excused
• CISG: Seller is not excused
Case VII – Choice between contracts
• Sale of car components built on specifications
• Destruction of part of the seller’s storage• Volumes in store sufficient to meet
obligations towards one buyer, but not all buyers
• Delivery cannot be made according to contract
• Is the seller liable for non-performance?
Choice between contracts
• Norwegian law: Seller is excused
• Italian law: Seller is excused
• German law: Seller is excused
• CISG: Seller is excused (?)
• UNIDROIT, PECL: Seller is excused (?)
• English law: Seller is not excused
Case VIII – Unaffordability (1)
• Sale of car components built on specifications
• Due to unexpected weather conditions the ship cannot leave the harbour unless an ice-breaker is especially ordered from abroad
• Delivery cannot be made according to contract
• Is the seller liable for non-performance?
Unaffordability (1)
• Norwegian law: Seller is excused
• Italian law: Seller is excused
• German law: Seller is excused (but first: renegotiation)
• UNIDROIT, PECL: Seller can require renegotiation
• English law: Seller is not excused
• CISG: Seller is not excused
Case IX – Unaffordability (2)
• Sale of car components built on specifications
• The price of aluminium increases significantly, and sale of the components at the agreed price would result in considerable losses for the seller
• Delivery “cannot” be made according to contract
• Is the seller liable for non-performance?
Unaffordability (2)
• Norwegian law: Seller is not excused
• Italian law: Seller is not excused
• German law: Seller is not excused
• UNIDROIT, PECL: Seller is not excused
• English law: Seller is not excused
• CISG: Seller is not excused
Case X – Unaffordability (3)
• Sale of car components built on specifications
• The price of aluminium increases significantly, and due to its numerous obligations the seller cannot pay for its raw materials
• Delivery cannot be made according to contract
• Is the seller liable for non-performance?
Unaffordability (3)
• Norwegian law: Seller is not excused
• Italian law: Seller is not excused
• German law: Seller is not excused
• UNIDROIT, PECL: Seller is not excused
• English law: Seller is not excused
• CISG: Seller is not excused
Possible aims of rules excusing non-performance
• Allocate the risk of supervening events
• Sanction negligence and reward diligence
• Avoid unfair situations
Norwegian law
• Kjpl.§ 27 : A party is not liable for failure to perform if due to impediment beyond his control that could not reasonably be taken into account or overcome
• ”Beyond his control”– Not Directly or indirectly caused by him, but– That could actually be controlled or affected
by him
German law
• §§ 276, 280 BGB: liability assumes negligence (presumed) or wilful misconduct
• §313: change in circumstances (including economic impossibility) – supervening events, unforeseen
Italian law
• Art. 1218 cc: Liability assumes that impediment was not due to the prevented party
• Art. 1176 cc: Evidence of diligence is sufficient• Art. 1175, 1375: Requesting performance is
against good faith if performance is unaffordable• Art. 1467: Request termination if unaffordability
due to unforseeable, extraordinary supervening event
English law
• Debtor has absolute obligation to perform accurately
• Discharge only if supervening events (without default) radically change the nature of the obligations (frustration)
• Inconvenience or increased onerousness do not qualify
• Self-induced events do not qualify• Expressed provisions are deemed to have
allocated the risk
CISG
• Art. 79: A party is not liable for failure to perform if due to impediment beyond his control that could not reasonably be taken into account or overcome
• To be constructed narrowly as frustration or flexibly as Norwegian law?
UNIDROIT
• Art. 7.1.7: A party is not liable for failure to perform if due to impediment beyond his control that could not reasonably be taken into account or overcome
• Art. 6.2.2: Change in circumstances – fundamental alteration of contract’s balance due to supervening event, unforeseeable, beyond the control, and no assumption of risk was made in the contract
PECL
• Art. 8:108: A party is not liable for failure to perform if due to impediment beyond his control that could not reasonably be taken into account or overcome
• Art. 6.111: Change in circumstances – contract becomes excessively onerous due to supervening event, unforeseeable, and no assumption of risk was made in the contract
Common features
• Supervening, external and unforeseeable event that objectively prevents performance excuses
Supervening events that excuse non-performance
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Norway Germany Italy England CISG UNIDROIT PECL
Impossib.
diligence
fact.ctrl.