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European Contract Protocols - Chaperts 8 & 9

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European Contract Protocols - Chaperts 8 & 9

Post by assassin on Wed Aug 16, 2017 3:19 am

CHAPTER 8 - NON-PERFORMANCE AND REMEDIES IN GENERAL

Article 8.101 (ex art. 3.101) - Remedies Available
(1) Whenever a party does not perform an obligation under the contract and the non-performance is not excused under Article 8.108, the aggrieved party may resort to any of the remedies set out in Chapter 9.
(2) Where a party's non-performance is excused under Article 8.108, the aggrieved party may resort to any of the remedies set out in Chapter 9 except claiming performance and damages.
(3) A party may not resort to any of the remedies set out in Chapter 9 to the extent that its own act caused the other party's non-performance.

Article 8.102 (ex art. 3.102) - Cumulation of Remedies

Remedies which are not incompatible may be cumulated. In particular, a party is not deprived of its right to damages by exercising its right to any other remedy.

Article 8.103 (ex art. 3.103) - Fundamental Non-Performance

A non-performance of an obligation is fundamental to the contract if:
(a) strict compliance with the obligation is of the essence of the contract; or
(b) the non-performance substantially deprives the aggrieved party of what it was entitled to expect under the contract, unless the other party did not foresee and could not reasonably have foreseen that result; or
(c) the non-performance is intentional and gives the aggrieved party reason to believe that it cannot rely on the other party's future performance.

Article 8.104 (ex art. 3.104) - Cure by Non-Performing Party

A party whose tender of performance is not accepted by the other party because it does not conform to the contract may make a new and conforming tender where the time for performance has not yet arrived or the delay would not be such as to constitute a fundamental non-performance.

Article 8.105 (ex art. 3.105) - Assurance of Performance

(1) A party who reasonably believes that there will be a fundamental non-performance by the other party may demand adequate assurance of due performance and meanwhile may withhold performance of its own obligations so long as such reasonable belief continues.
(2) Where this assurance is not provided within a reasonable time, the party demanding it may terminate the contract if it still reasonably believes that there will be a fundamental non-performance by the other party and gives notice of termination without delay.

Article 8.106 (ex art. 3.106) - Notice Fixing Additional Period for Performance

(1) In any case of non-performance the aggrieved party may by notice to the other party allow an additional period of time for performance.
(2) During the additional period the aggrieved party may withhold performance of its own reciprocal obligations and may claim damages, but it may not resort to any other remedy. If it receives notice from the other party that the latter will not perform within that period, or if upon expiry of that period due performance has not been made, the aggrieved party may resort to any of the remedies that may be available under Chapter 9.
(3) If in a case of delay in performance which is not fundamental the aggrieved party has given a notice fixing an additional period of time of reasonable length, it may terminate the contract at the end of the period of notice. The aggrieved party may in its notice provide that if the other party does not perform within the period fixed by the notice the contract shall terminate automatically. If the period stated is too short, the aggrieved party may terminate, or, as the case may be, the contract shall terminate automatically, only after a reasonable period from the time of the notice.

Article 8.107 (ex art. 3.107) - Performance Entrusted to Another

A party who entrusts performance of the contract to another person remains responsible for performance.

Article 8.108 (ex art 3.108) - Excuse Due to an Impediment

(1) A party's non-performance is excused if it proves that it is due to an impediment beyond its control and that it could not reasonably have been expected to take the impediment into account at the time of the conclusion of the contract, or to have avoided or overcome the impediment or its consequences.
(2) Where the impediment is only temporary the excuse provided by this article has effect for the period during which the impediment exists. However, if the delay amounts to a fundamental non-performance, the obligee may treat it as such.
(3) The non-performing party must ensure that notice of the impediment and of its effect on its ability to perform is received by the other party within a reasonable time after the non-performing party knew or ought to have known of these circumstances. The other party is entitled to damages for any loss resulting from the non-receipt of such notice.

Article 8.109 (ex 3.109) - Clause Limiting or Excluding Remedies

Remedies for non-performance may be excluded or restricted unless it would be contrary to good faith and fair dealing to invoke the exclusion or restriction.

CHAPTER 9 - PARTICULAR REMEDIES FOR NON-PERFORMANCE

Section 1 - Right to Performance

Article 9.101 (ex art. 4.101) - Monetary Obligations

(1) The creditor is entitled to recover money which is due.
(2) Where the creditor has not yet performed its obligation and it is clear that the debtor will be unwilling to receive performance, the creditor may nonetheless proceed with its performance and may recover any sum due under the contract unless:
(a) it could have made a reasonable substitute transaction without significant effort or expense; or
(b) performance would be unreasonable in the circumstances.

Article 9.102 (ex art. 4.102) - Non-monetary Obligations

(1) The aggrieved party is entitled to specific performance of an obligation other than one to pay money, including the remedying of a defective performance.
(2) Specific performance cannot, however, be obtained where:
(a) performance would be unlawful or impossible; or
(b) performance would cause the obligor unreasonable effort or expense; or
(c) the performance consists in the provision of services or work of a personal character or depends upon a personal relationship, or
(d) the aggrieved party may reasonably obtain performance from another source.
(3) The aggrieved party will lose the right to specific performance if it fails to seek it within a reasonable time after it has or ought to have become aware of the non-performance.

Article 9.103 (ex art 4.103) - Damages Not Precluded

The fact that a right to performance is excluded under this Section does not preclude a claim for damages.

Section 2 - Right To Withhold Performance

Article 9.201 (ex art 4.201) - Right to Withhold Performance

(1) A party who is to perform simultaneously with or after the other party may withhold performance until the other has tendered performance or has performed. The first party may withhold the whole of its performance or a part of it as may be reasonable in the circumstances.
(2) A party may similarly withhold performance for as long as it is clear that there will be a non-performance by the other party when the other party's performance becomes due.

Section 3 - Termination Of The Contract

Article 9.301 (ex art. 4.301) - Right to Terminate the Contract

(1) A party may terminate the contract if the other party's non-performance is fundamental.
(2) In the case of delay the aggrieved party may also terminate the contract under Article 8.106 (3).

Article 9.302 (ex art 4.302) - Contract to be Performed in Parts

If the contract is to be performed in separate parts and in relation to a part to which a counter-performance can be apportioned, there is a fundamental non-performance, the aggrieved party may exercise its right to terminate under this Section in relation to the part concerned. It may terminate the contract as a whole only if the non-performance is fundamental to the contract as a whole.

Article 9.303 (ex art. 4.303) - Notice of Termination

(1) A party's right to terminate the contract is to be exercised by notice to the other party.
(2) The aggrieved party loses its right to terminate the contract unless it gives notice within a reasonable time after it has or ought to have become aware of the non-performance.
(3) (a) When performance has not been tendered by the time it was due, the aggrieved party need not give notice of termination before a tender has been made. If a tender is later made it loses its right to terminate if it does not give such notice within a reasonable time after it has or ought to have become aware of the tender.
(b) If, however, the aggrieved party knows or has reason to know that the other party still intends to tender within a reasonable time, and the aggrieved party unreasonably fails to notify the other party that it will not accept performance, it loses its right to terminate if the other party in fact tenders within a reasonable time.
(4) If a party is excused under Article 8.108 through an impediment which is total and permanent, the contract is terminated automatically and without notice at the time the impediment arises.

Article 9.304 (ex art. 4.304) - Anticipatory Non-Performance

Where prior to the time for performance by a party it is clear that there will be a fundamental non-performance by it the other party may terminate the contract.

Article 9.305 (ex art. 4.305) - Effects of Termination in General

(1) Termination of the contract releases both parties from their obligation to effect and to receive future performance, but, subject to Articles 9.306 to 9.308, does not affect the rights and liabilities that have accrued up to the time of termination.
(2) Termination does not affect any provision of the contract for the settlement of disputes or any other provision which is to operate even after termination.

Article 9.306 (ex art. 4.306) - Property Reduced in Value

A party who terminates the contract may reject property previously received from the other party if its value to the first party has been fundamentally reduced as a result of the other party's non-performance.

Article 9.307 (ex art. 4.307) - Recovery of Money Paid

On termination of the contract a party may recover money paid for a performance which it did not receive or which it properly rejected.

Article 9.308 (ex art 4.308) - Recovery of Property

On termination of the contract a party who has supplied property which can be returned and for which it has not received payment or other counter-performance may recover the property.

Article 9.309 (ex art. 4.309) - Recovery for Performance that Cannot be Returned

On termination of the contract a party who has rendered a performance which cannot be returned and for which it has not received payment or other counter-performance may recover a reasonable amount for the value of the performance to the other party.

Section 4 - Price Reduction

Article 9.401 (ex art 4.401) - Right to Reduce Price

(1) A party who accepts a tender of performance not conforming to the contract may reduce the price. This reduction shall be proportionate to the decrease in the value of the performance at the time this was tendered compared to the value which a conforming tender would have had at that time.
(2) A party who is entitled to reduce the price under the preceding paragraph and who has already paid a sum exceeding the reduced price may recover the excess from the other party.
(3) A party who reduces the price cannot also recover damages for reduction in the value of the performance but remains entitled to damages for any further loss it has suffered so far as these are recoverable under Section 5 of this Chapter.

Section 5 - Damages and Interest

Article 9.501 (ex art. 4.501) - Right to Damages

(1) The aggrieved party is entitled to damages for loss caused by the other party's non-performance which is not excused under Article 8.108.
(2) The loss for which damages are recoverable includes:
(a) non-pecuniary loss; and
(b) future loss which is reasonably likely to occur.

Article 9.502 (ex art 4.502) - General Measure of Damages

The general measure of damages is such sum as will put the aggrieved party as nearly as possible into the position in which it would have been if the contract had been duly performed. Such damages cover the loss which the aggrieved party has suffered and the gain of which it has been deprived.

Article 9.503 (ex art. 4.503) - Foreseeability

The non-performing party is liable only for loss which it foresaw or could reasonably have foreseen at the time of conclusion of the contract as a likely result of its non-performance, unless the non-performance was intentional or grossly negligent.

Article 9.504 - Loss Attributable to Aggrieved Party (new; previously part of 4.504)

The non-performing party is not liable for loss suffered by the aggrieved party to the extent that the aggrieved party contributed to the non-performance or its effects.

Article 9.505 - Reduction of loss (previously part of 4.504)

(1) The non-performing party is not liable for loss suffered by the aggrieved party to the extent that the aggrieved party could have reduced the loss by taking reasonable steps.
(2) The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce the loss.

Article 9.506 (ex art. 4.505) - Substitute Transaction

Where the aggrieved party has terminated the contract and has made a substitute transaction within a reasonable time and in a reasonable manner, it may recover the difference between the contract price and the price of the substitute transaction as well as damages for any further loss so far as these are recoverable under this Section.

Article 9.507 (ex art. 4.506) - Current Price

Where the aggrieved party has terminated the contract and has not made a substitute transaction but there is a current price for the performance contracted for, it may recover the difference between the contract price and the price current at the time the contract is terminated as well as damages for any further loss so far as these are recoverable under this Section.

Article 9.508 (ex art. 4.507) - Delay in Payment of Money

(1) If payment of a sum of money is delayed, the aggrieved party is entitled to interest on that sum from the time when payment is due to the time of payment at the average commercial bank short-term lending rate to prime borrowers prevailing for the contractual currency of payment at the place where payment is due.
(2) The aggrieved party may in addition recover damages for any further loss so far as these are recoverable under this Section.

Article 9.509 (ex art. 4.508) - Agreed Payment for Non-performance

(1) Where the contract provides that a party who fails to perform is to pay a specified sum to the aggrieved party for such non-performance, the aggrieved party shall be awarded that sum irrespective of its actual loss.
(2) However, despite any agreement to the contrary the specified sum may be reduced to a reasonable amount where it is grossly excessive in relation to the loss resulting from the non-performance and the other circumstances.

Article 9.510 (ex art. 4.509) - Currency by which Damages to be Measured

Damages are to be measured by the currency which most appropriately reflects the aggrieved party's loss.

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