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Fontaine, Marcel, OHADA Uniform Act On Contract Law Preliminary Draft

Title
Fontaine, Marcel, OHADA Uniform Act On Contract Law Preliminary Draft
Table of Contents
Content
Drafted by Marcel FONTAINE
Emeritus Professor, former Director of the Centre for the Law of Obligations, Law Faculty, Catholic University of Louvain (Belgium); member of the UNIDROIT Study Group for the Preparation of the Principles at the request of the International Institute for the Unification of Private Law (UNIDROIT) to be submitted to the OHADA Permanent Secretariat September 2004. (English version prepared by the UNIDROIT Secretariat in collaboration with Prof. Marcel Fontaine)

The original document and explanatory notes can be found at the UNIDROIT website.
Marcel Fontaine; Law harmonization and local specificities – a case study: OHADA and the law of contracts, Uniform Law Review, Volume 18, Issue 1, 1 June 2013, Pages 50–64.

INTRODUCTORY CHAPTER – SCOPE OF APPLICATION

– If the Act is applicable to all contracts, both commercial and non-commercial (recommended solution):

ARTICLE 00/1 (NEW)
(Scope of application)

The provisions of this Uniform Act apply to all contracts, without prejudice to the particular provisions contained in the Uniform Act on consumer contracts.

– If the Act is applicable only to commercial contracts:

ARTICLE 0/1 (NEW)
(Scope of application)

The provisions of this Uniform Act shall apply to contracts concluded between merchants, whether natural or legal persons.

CHAPTER 1 – GENERAL PROVISIONS

ARTICLE 1/1 (comp. U.Pr. Art. 1.1)

(Freedom of contract)

Subject to Article 3/1, the parties are free to enter into a contract and to determine its content.

ARTICLE 1/2 (comp. U.Pr. Art. 1.5)
(Exclusion or modification by the parties)

The parties may exclude the application of this Uniform Act or derogate from or vary the effect of any of its provisions, except as otherwise provided in this Uniform Act.

ARTICLE 1/3 (comp. U.Pr. Art. 1.2)
(Form)

(1) Nothing in this Uniform Act requires a contract, statement or any other act to be made in a particular form.
(2) Matters of evidence are governed by the relevant provisions of the law.

ARTICLE 1/4 (comp. U.Pr. Art. 1.3)
(Binding character of contract)

A contract validly entered into is binding upon the parties. It can only be modified or terminated in accordance with its terms or by agreement or as otherwise provided in this Uniform Act.

ARTICLE 1/5 (comp. U.Pr. Art. 1.6)
(Interpretation and supplementation)

(1) In the interpretation of this Uniform Act, regard is to be had to its international character and to its purposes including the need to promote uniformity in its application.
(2) Issues within the scope of this Uniform Act but not expressly settled by it are as far as possible to be settled in accordance with its underlying general principles.

ARTICLE 1/6 (comp. U.Pr. Art. 1.7)
(Good faith and fair dealing)

(1) Each party must act in accordance with good faith and fair dealing.
(2) The parties may not exclude or limit this duty.

ARTICLE 1/7 (= U.Pr. Art. 1.8)
(Inconsistent behaviour)

A party cannot act inconsistently with an understanding it has caused the other party to have and upon which that other party reasonably has acted in reliance to its detriment.

ARTICLE 1/8 (comp. U.Pr. Art. 1.9)
(Usages and practices)

(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.
(2) The parties are bound by a usage that is widely known to and regularly observed by parties to contracts of the same nature except where the application of such a usage would be unreasonable.

ARTICLE 1/9 (comp. U.Pr. Art. 1.10)
(Notice)

(1) Where notice is required it may be given by any means appropriate to the circumstances.
(2) A notice is effective when it reaches the person to whom it is given.
(3) For the purpose of paragraph (2) a notice “reaches” a person when given to that person orally or delivered at that person’s place of business or mailing address.
(4) For the purpose of this article “notice” includes a declaration, demand, request or any other communication of intention.

ARTICLE 1/10 (comp. U.Pr. Art. 1.11)
(Definitions)

In this Uniform Act:
– “court” includes an arbitral tribunal;
– where a party has more than one place of business the relevant “place of business” is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract;
– “obligor” refers to the party who is to perform an obligation and “obligee” refers to the party who is entitled to performance of that obligation.
– “writing” means any mode of communication that preserves a record of the information contained therein and is capable of being reproduced in tangible form.

ARTICLE 1/11 (comp. U.Pr. Art. 1.12)
(Computation of time set by parties)

(1) Official holidays or non-business days occurring during a period set by parties for an act to be performed are included in calculating the period.
(2) However, if the last day of the period is an official holiday or a non-business day at the place of business or place of abode of the party to perform the act, the period is extended until the first business day which follows, unless the circumstances indicate otherwise.
(3) The relevant time zone is that of the place of business of the party setting the time, unless the circumstances indicate otherwise.

CHAPTER 2 — FORMATION AND AUTHORITY OF AGENTS

SECTION 1: FORMATION

ARTICLE 2/1 (= U.Pr. Art. 2.1.1) 
(Manner of formation)

A contract may be concluded either by the acceptance of an offer or by conduct of the parties that is sufficient to show agreement.

ARTICLE 2/2 (= U.Pr. Art. 2.1.2)
(Definition of offer)

A proposal for concluding a contract constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance.

ARTICLE 2/3 (= U.Pr. Art. 2.1.3)
(Withdrawal of offer)

(1) An offer becomes effective when it reaches the offeree.
(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.

ARTICLE 2/4 (= U.Pr. Art. 2.1.4)
(Revocation of offer)

(1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before it has dispatched an acceptance.
(2) However, an offer cannot be revoked
(a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or
(b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.

ARTICLE 2/5 (= U.Pr. Art. 2.1.5)
(Rejection of offer)

An offer is terminated when a rejection reaches the offeror.

ARTICLE 2/6 (= U.Pr. Art. 2.1.6)
(Mode of acceptance)

(1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.
(2) An acceptance of an offer becomes effective when the indication of assent reaches the offeror.
(3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act without notice to the offeror, the acceptance is effective when the act is performed.

ARTICLE 2/7 (= U.Pr. Art. 2.1.7)
(Time of acceptance)

An offer must be accepted within the time the offeror has fixed or, if no time is fixed, within a reasonable time having regard to the circumstances, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.

ARTICLE 2/8 (= U.Pr. Art. 2.1.8)
(Acceptance within a fixed period of time)

A period of acceptance fixed by the offeror begins to run from the time that the offer is dispatched. A time indicated in the offer is deemed to be the time of dispatch unless the circumstances indicate otherwise.

ARTICLE 2/9 (= U.Pr. Art. 2.1.9)
(Late acceptance. Delay in transmission)

(1) A late acceptance is nevertheless effective as an acceptance if without undue delay the offeror so informs the offeree or gives notice to that effect.
(2) If a communication containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without undue delay, the offeror informs the offeree that it considers the offer as having lapsed.

ARTICLE 2/10 (= U.Pr. Art. 2.1.10)
(Withdrawal of acceptance)

An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective.

ARTICLE 2/11 (= U.Pr. Art. 2.1.11)
(Modified acceptance)

(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.
(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects to the discrepancy. If the offeror does not object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

ARTICLE 2/12 (= U.Pr. Art. 2.1.12)
(Writings in confirmation)

If a writing which is sent within a reasonable time after the conclusion of the contract and which purports to be a confirmation of the contract contains additional or different terms, such terms become part of the contract, unless they materially alter the contract or the recipient, without undue delay, objects to the discrepancy.

ARTICLE 2/13 (= U.Pr. Art. 2.1.13)
(Conclusion of contract dependent on agreement on specific matters or in a particular form)

Where in the course of negotiations one of the parties insists that the contract is not concluded until there is agreement on specific matters or in a particular form, no contract is concluded before agreement is reached on those matters or in that form.

ARTICLE 2/14 (= U.Pr. Art. 2.1.14)
(Contract with terms deliberately left open)

(1) If the parties intend to conclude a contract, the fact that they intentionally leave a term to be agreed upon in further negotiations or to be determined by a third person does not prevent a contract from coming into existence.
(2) The existence of the contract is not affected by the fact that subsequently
(a) the parties reach no agreement on the term; or
(b) the third person does not determine the term,
provided that there is an alternative means of rendering the term definite that is reasonable in the circumstances, having regard to the intention of the parties.

ARTICLE 2/15 (= U.Pr. Art. 2.1.15)
(Negotiations in bad faith)

(1) A party is free to negotiate and is not liable for failure to reach an agreement.
(2) However, a party who negotiates or breaks off negotiations in bad faith is liable for the losses caused to the other party.
(3) It is bad faith, in particular, for a party to enter into or continue negotiations when intending not to reach an agreement with the other party.

ARTICLE 2/16 (= U.Pr. Art. 2.1.16)
(Duty of confidentiality)

Where information is given as confidential by one party in the course of negotiations, the other party is under a duty not to disclose that information or to use it improperly for its own purposes, whether or not a contract is subsequently concluded. Where appropriate, the remedy for breach of that duty may include compensation based on the benefit received by the other party.

ARTICLE 2/17 (= U.Pr. Art. 2.1.17)
(Merger clauses)

A contract in writing which contains a clause indicating that the writing completely embodies the terms on which the parties have agreed cannot be contradicted or supplemented by evidence of prior statements or agreements. However, such statements or agreements may be used to interpret the writing.

ARTICLE 2/18 (= U.Pr. Art. 2.1.18)
(Modification in a particular form)

A contract in writing which contains a clause requiring any modification or termination by agreement to be in a particular form may not be otherwise modified or terminated. However, a party may be precluded by its conduct from asserting such a clause to the extent that the other party has reasonably acted in reliance on that conduct.

ARTICLE 2/19 (= U.Pr. Art. 2.1.19)
(Contracting under standard terms)

(1) Where one party or both parties use standard terms in concluding a contract, the general rules on formation apply, subject to Articles 2.1.20 – 2.1.22.
(2) Standard terms are provisions which are prepared in advance for general and repeated use by one party and which are actually used without negotiation with the other party.

ARTICLE 2/20 (= U.Pr. Art. 2.1.20)
(Surprising terms)

(1) No term contained in standard terms which is of such a character that the other party could not reasonably have expected it, is effective unless it has been expressly accepted by that party.
(2) In determining whether a term is of such a character regard shall be had to its content, language and presentation.

ARTICLE 2/21 (= U.Pr. Art. 2.1.21)
(Conflict between standard terms and non-standard terms)

In case of conflict between a standard term and a term which is not a standard term the latter prevails.

ARTICLE 2/22 (= U.Pr. Art. 2.1.22)
 
(Battle of forms)

Where both parties use standard terms and reach agreement except on those terms, a contract is concluded on the basis of the agreed terms and of any standard terms which are common in substance unless one party clearly indicates in advance, or later and without undue delay informs the other party, that it does not intend to be bound by such a contract.

SECTION 2: AUTHORITY OF AGENTS

ARTICLE 2/23 (= U.Pr. Art. 2.2.1)
(Scope of the Section)

(1) This Section governs the authority of a person (“the agent”) to affect the legal relations of another person (“the principal”) by or with respect to a contract with a third party, whether the agent acts in its own name or in that of the principal.
(2) It governs only the relations between the principal or the agent on the one hand, and the third party on the other.
(3) It does not govern an agent’s authority conferred by law or the authority of an agent appointed by a public or judicial authority.

ARTICLE 2/24 (= U.Pr. Art. 2.2.2)
(Establishment and scope of the authority of the agent)

(1) The principal’s grant of authority to an agent may be express or implied.
(2) The agent has authority to perform all acts necessary in the circumstances to achieve the purposes for which the authority was granted.

ARTICLE 2/25 (= U.Pr. Art. 2.2.3)
(Agency disclosed)

(1) Where an agent acts within the scope of its authority and the third party knew or ought to have known that the agent was acting as an agent, the acts of the agent shall directly affect the legal relations between the principal and the third party and no legal relation is created between the agent and the third party.
(2) However, the acts of the agent shall affect only the relations between the agent and the third party, where the agent with the consent of the principal undertakes to become the party to the contract.

ARTICLE 2/26 (= U.Pr. Art. 2.2.4)
(Agency undisclosed)

(1) Where an agent acts within the scope of its authority and the third party neither knew nor ought to have known that the agent was acting as an agent, the acts of the agent shall affect only the relations between the agent and the third party.
(2) However, where such an agent, when contracting with the third party on behalf of a business, represents itself to be the owner of that business, the third party, upon discovery of the real owner of the business, may exercise also against the latter the rights it has against the agent.

ARTICLE 2/27 (= U.Pr. Art. 2.2.5)
(Agent acting without or exceeding its authority)

(1) Where an agent acts without authority or exceeds its authority, its acts do not affect the legal relations between the principal and the third party.
(2) However, where the principal causes the third party reasonably to believe that the agent has authority to act on behalf of the principal and that the agent is acting within the scope of that authority, the principal may not invoke against the third party the lack of authority of the agent.

ARTICLE 2/28 (= U.Pr. Art. 2.2.6)
(Liability of agent acting without or exceeding its authority)

(1) An agent that acts without authority or exceeds its authority is, failing ratification by the principal, liable for damages that will place the third party in the same position as if the agent had acted with authority and not exceeded its authority.
(2) However, the agent is not liable if the third party knew or ought to have known that the agent had no authority or was exceeding its authority.

ARTICLE 2/29 (= U.Pr. Art. 2.2.7)
(Conflict of interests)

(1) If a contract concluded by an agent involves the agent in a conflict of interests with the principal of which the third party knew or ought to have known, the principal may avoid the contract. The right to avoid is subject to Articles 3.14, 3° and 3/16 to 3/18.
(2) However, the principal may not avoid the contract
(a) if the principal had consented to, or knew or ought to have known of, the agent’s involvement in the conflict of interests; or
(b) if the agent had disclosed the conflict of interests to the principal and the latter had not objected within a reasonable time.

ARTICLE 2/30 (= U.Pr. Art. 2.2.8)
(Sub-agency)

An agent has implied authority to appoint a sub-agent to perform acts which it is not reasonable to expect the agent to perform itself. The rules of this Section apply to the subagency.

ARTICLE 2/31 (= U.Pr. Art. 2.2.9)
(Ratification)

(1) An act by an agent that acts without authority or exceeds its authority may be ratified by the principal. On ratification the act produces the same effects as if it had initially been carried out with authority.
(2) The third party may by notice to the principal specify a reasonable period of time for ratification. If the principal does not ratify within that period of time it can no longer do so.
(3) If, at the time of the agent’s act, the third party neither knew nor ought to have known of the lack of authority, it may, at any time before ratification, by notice to the principal indicate its refusal to become bound by a ratification.

ARTICLE 2/32 (= U.Pr. Art. 2.2.10)
(Termination of authority)

(1) Termination of authority is not effective in relation to the third party unless the third party knew or ought to have known of it.
(2) Notwithstanding the termination of its authority, an agent remains authorised to perform the acts that are necessary to prevent harm to the principal’s interests.

CHAPTER 3 — VALIDITY

SECTION 1: GROUNDS OF INVALIDITY

ARTICLE 3/1 (new)
(Illegality)

Any contract or term that is contrary to
(a) public order or good moral standards; or to
(b) mandatory provisions of the law, except where the law provides otherwise; is void.

ARTICLE 3/2 (new)
(Capacity)

All questions of capacity are governed by the relevant provisions of the law.

ARTICLE 3/3 (= U.Pr. Art. 3.3)
(Initial impossibility)

(1) The mere fact that at the time of the conclusion of the contract the performance of the obligation assumed was impossible does not affect the validity of the contract.
(2) The mere fact that at the time of the conclusion of the contract a party was not entitled to dispose of the assets to which the contract relates does not affect the validity of the contract.

ARTICLE 3/4 (= U.Pr. Art. 3.4)
(Definition of mistake)

Mistake is an erroneous assumption relating to facts or to law existing when the contract was concluded.

ARTICLE 3/5 (= U.Pr. Art. 3.5)
(Relevant mistake)

(1) A party may only avoid the contract for mistake if, when the contract was concluded, the mistake was of such importance that a reasonable person in the same situation as the party in error would only have concluded the contract on materially different terms or would not have concluded it at all if the true state of affairs had been known, and
(a) the other party made the same mistake, or caused the mistake, or knew or ought to have known of the mistake and it was contrary to reasonable commercial standards of fair dealing to leave the mistaken party in error; or
(b) the other party had not at the time of avoidance reasonably acted in reliance on the contract.
(2) However, a party may not avoid the contract if
(a) it was grossly negligent in committing the mistake; or
(b) the mistake relates to a matter in regard to which the risk of mistake was assumed or, having regard to the circumstances, should be borne by the mistaken party.

ARTICLE 3/6 (= U.Pr. Art. 3.6)
(Error in expression or transmission)

An error occurring in the expression or transmission of a declaration is considered to be a mistake of the person from whom the declaration emanated.

ARTICLE 3/7 (= U.Pr. Art. 3.7)
(Remedies for non-performance)

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.

ARTICLE 3/8 (= U.Pr. Art. 3.8)
(Fraud)

A party may avoid the contract when it has been led to conclude the contract by the other party’s fraudulent representation, including language or practices, or fraudulent non-disclosure of circumstances which, according to reasonable commercial standards of fair dealing, the latter party should have disclosed.

ARTICLE 3/9 (= U.Pr. Art. 3.9)
(Threat)

A party may avoid the contract when it has been led to conclude the contract by the other party’s unjustified threat which, having regard to the circumstances, is so imminent and serious as to leave the first party no reasonable alternative. In particular, a threat is unjustified if the act or omission with which a party has been threatened is wrongful in itself, or it is wrongful to use it as a means to obtain the conclusion of the contract.

ARTICLE 3/10 (comp. U.Pr. Art. 3.10)
(Gross disparity)

(1) A party may avoid the contract or an individual term of it if, at the time of the conclusion of the contract, the contract or term unjustifiably gave the other party an excessive advantage. Regard is to be had, among other factors, to
(a) the fact that the other party has taken unfair advantage of the first party’s dependence, economic distress or urgent needs, or of its improvidence, ignorance, inexperience or lack of bargaining skill, and
(b) the nature and purpose of the contract.
(2) Upon the request of the party entitled to avoidance, a court may adapt the contract or term in order to make it accord with reasonable standards of fair dealing.
(3) A court may also adapt the contract or term upon the request of the party receiving notice of avoidance, provided that that party informs the other party of its request promptly after receiving such notice and before the other party has reasonably acted in reliance on it. The provisions of Article 3.15(2) apply accordingly.

ARTICLE 3/11 (comp. U.Pr. Art. 3.11)
(Third persons)

(1) Where fraud, threat, gross disparity or a party’s mistake is imputable to, or is known or ought to be known by, a third person for whose acts the other party is responsible, the contract may be avoided under the same conditions as if the behaviour or knowledge had been that of the party itself.
(2) Where fraud, threat or gross disparity is imputable to a third person for whose acts the other party is not responsible, the contract may be avoided if that party knew or ought to have known of the fraud, threat or disparity, or has not at the time of avoidance reasonably acted in reliance on the contract.

SECTION 2: NULLITY

ARTICLE 3/12 (new)
(Sanction of conditions of formation of contract)

Any contract that does not comply with the conditions required for its formation may be avoided.

ARTICLE 3/13 (new)
(Absolute nullity)

(1) A contract is absolutely void when the condition of formation sanctioned by its nullity is necessary for the protection of the general interest; this is the case when the contract is void for the purposes of Article 3/1.
(2) Absolute nullity may be invoked by any interested party; it is invoked by the court at its own motion.
(3) A contract that is absolutely void shall not be confirmed.

ARTICLE 3/14 (new; comp. U.Pr. Art. 3.12)
(Relative nullity)

(1) A contract is relatively void where the condition for formation sanctioned by its nullity is necessary for the protection of an individual interest; this is the case when the consent of both or one of the parties is invalid for the purposes of Articles 3/4 to 3/11.
(2) Relative nullity may be invoked only by the person in whose interest it is established; it may not be invoked by the court at its own motion.
(3) A contract cannot be avoided for relative nullity if the party entitled to avoid it expressly or impliedly confirms the contract after the period of time for giving notice of avoidance has begun to run.

ARTICLE 3/15 (comp. U.Pr. Art. 3.13)
(Loss of right to avoid)

(1) If a party is entitled to avoid the contract for mistake but the other party declares itself willing to perform or performs the contract as it was understood by the party entitled to avoidance, the contract is considered to have been concluded as the latter party understood it. The other party must make such a declaration or render such performance promptly after having been informed of the manner in which the party entitled to avoidance had understood the contract and before that party has reasonably acted in reliance on a notice of avoidance.
(2) After such a declaration or performance the right to avoidance is lost and any earlier notice of avoidance is ineffective.

ARTICLE 3/16 (= U.Pr. Art. 3.14)
(Notice of avoidance)

The right of a party to avoid the contract is exercised by notice to the other party.

ARTICLE 3/17 (= U.Pr. Art. 3.15)
(Time limits)

(1) Notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely.
(2) Where an individual term of the contract may be avoided by a party under Article 3/10, the period of time for giving notice of avoidance begins to run when that term is asserted by the other party.

ARTICLE 3/18 (= U.Pr. Art. 3.16)
(Partial avoidance)

Where a ground of avoidance affects only individual terms of the contract, the effect of avoidance is limited to those terms unless, having regard to the circumstances, it is unreasonable to uphold the remaining contract.

ARTICLE 3/19 (= U.Pr. Art. 3.17)
(Retroactive effect of avoidance)

(1) Avoidance takes effect retroactively.
(2) On avoidance either party may claim restitution of whatever it has supplied under the contract or the part of it avoided, provided that it concurrently makes restitution of whatever it has received under the contract or the part of it avoided or, if it cannot make restitution in kind, it makes an allowance for what it has received.

ARTICLE 3/20 (= U.Pr. Art. 3.18)
(Damages)

Irrespective of whether or not the contract has been avoided, the party who knew or ought to have known of the ground for avoidance is liable for damages so as to put the other party in the same position in which it would have been if it had not concluded the contract.

SECTION 3: GENERAL PROVISIONS

ARTICLE 3/21 (comp. U.Pr. Art. 3.19)
(Mandatory character of the provisions)

The provisions of this Chapter are mandatory, except insofar as they relate to initial impossibility or mistake.

ARTICLE 3/22 (= U.Pr. Art. 3.20)
(Unilateral declarations)

The provisions of this Chapter apply with appropriate adaptations to any communication of intention addressed by one party to the other.

CHAPTER 4 — INTERPRETATION

ARTICLE 4/1 (= U.Pr. Art. 4.1)
(Intention of the parties)

(1) A contract shall be interpreted according to the common intention of the parties.
(2) If such an intention cannot be established, the contract shall be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances.

ARTICLE 4/2 (= U.Pr. Art. 4.2)
(Interpretation of statements and other conduct)

(1) The statements and other conduct of a party shall be interpreted according to that party’s intention if the other party knew or could not have been unaware of that intention.
(2) If the preceding paragraph is not applicable, such statements and other conduct shall be interpreted according to the meaning that a reasonable person of the same kind as the other party would give to it in the same circumstances.

ARTICLE 4/3 (comp. U.Pr. Art. 4.3)
(Relevant circumstances)

In applying Articles 4/1 and 4/2, regard shall be had to all the circumstances, including
(a) preliminary negotiations between the parties;
(b) practices which the parties have established between themselves;
(c) the conduct of the parties subsequent to the conclusion of the contract;
(d) the nature and purpose of the contract;
(e) the meaning commonly given to terms and expressions in the trade concerned;
(f) usages.

ARTICLE 4/4 (= U.Pr. Art. 4.4)
(Reference to contract or statement as a whole)

Terms and expressions shall be interpreted in the light of the whole contract or statement in which they appear.

ARTICLE 4/5 (= U.Pr. Art. 4.5)
(All terms to be given effect)

Contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect.

ARTICLE 4/6 (= U.Pr. Art. 4.6)
(Contra proferentem rule)

If contract terms supplied by one party are unclear, an interpretation against that party is preferred.

ARTICLE 4/7 (= U.Pr. Art. 4.7)
(Linguistic discrepancies)

Where a contract is drawn up in two or more language versions which are equally authoritative there is, in case of discrepancy between the versions, a preference for the interpretation according to a version in which the contract was originally drawn up.

ARTICLE 4/8 (= U.Pr. Art. 4.8)
(Supplying an omitted term)

(1) Where the parties to a contract have not agreed with respect to a term which is important for a determination of their rights and duties, a term which is appropriate in the circumstances shall be supplied.
(2) In determining what is an appropriate term regard shall be had, among other factors, to
(a) the intention of the parties;
(b) the nature and purpose of the contract;
(c) good faith and fair dealing;
(d) reasonableness.

CHAPTER 5 — CONTENT AND THIRD PARTY RIGHTS

SECTION 1: CONTENT

ARTICLE 5/1 (= U.Pr. Art. 5.1.1)
(Express and implied obligations)

The contractual obligations of the parties may be express or implied.

ARTICLE 5/2 (= U.Pr. Art. 5.1.2)
(Implied obligations)

Implied obligations stem from
(a) the nature and purpose of the contract;
(b) practices established between the parties and usages;
(c) good faith and fair dealing;
(d) reasonableness.

ARTICLE 5/3 (= U.Pr. Art. 5.1.3)
(Co-operation between the parties)

Each party shall cooperate with the other party when such co-operation may reasonably be expected for the performance of that party’s obligations.

ARTICLE 5/4 (= U.Pr. Art. 5.1.4)
(Duty to achieve a specific result Duty of best efforts)

(1) To the extent that an obligation of a party involves a duty to achieve a specific result, that party is bound to achieve that result.
(2) To the extent that an obligation of a party involves a duty of best efforts in the performance of an activity, that party is bound to make such efforts as would be made by a reasonable person of the same kind in the same circumstances.

ARTICLE 5/5 (= U.Pr. Art. 5.1.5)
(Determination of kind of duty involved)

In determining the extent to which an obligation of a party involves a duty of best efforts in the performance of an activity or a duty to achieve a specific result, regard shall be had, among other factors, to
(a) the way in which the obligation is expressed in the contract;
(b) the contractual price and other terms of the contract;
(c) the degree of risk normally involved in achieving the expected result;
(d) the ability of the other party to influence the performance of the obligation.

ARTICLE 5/6 (= U.Pr. Art. 5.1.6)
(Determination of quality of performance)

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.

ARTICLE 5/7 (comp. U.Pr. Art. 5.1.7)
(Price determination)

(1) Where a contract does not fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have made reference to the price generally charged at the time of the conclusion of the contract for such performance in comparable circumstances in the trade concerned or, if no such price is available, to a reasonable price.
(2) Where the price is to be determined by one party and that determination is manifestly unreasonable, a reasonable price shall be substituted notwithstanding any contract term to the contrary.
(3) Where the price is to be fixed by a third person, and that person cannot or will not do so, the price shall be a reasonable price.
(4) Where the price is to be fixed by reference to factors which do not exist or have ceased to exist or to be accessible, the nearest equivalent factor shall be treated as a substitute.

ARTICLE 5/8 (= U.Pr. Art. 5.1.8)
(Contract for an indefinite period)

A contract for an indefinite period may be ended by either party by giving notice a reasonable time in advance.

ARTICLE 5/9 (= U.Pr. Art. 5.1.9)
(Release by agreement)

(1) An obligee may release its right by agreement with the obligor.
(2) An offer to release a right gratuitously shall be deemed accepted if the obligor does not reject the offer without delay after having become aware of it.

SECTION 2: THIRD PARTY RIGHTS

ARTICLE 5/10 (new)
(Privity of contract)

(1) The rights and obligations arising from the contract shall only bind the parties to the contract.
(2) The legal situation arising from the contract can as of right be invoked by or against third parties, except insofar as the law imposes specific formal requirements.

ARTICLE 5/11 (new)
(Transfer to heirs)

Upon the demise of one of the parties, the rights and obligations arising from the contract shall be transferred to that party’s heirs unless the nature of the contract forbids it.

ARTICLE 5/12 (= U.Pr. Art. 5.2.1)
(Contracts in favour of third parties)

(1) The parties (the “promisor” and the “promisee”) may confer by express or implied agreement a right on a third party (the “beneficiary”).
(2) The existence and content of the beneficiary’s right against the promisor are determined by the agreement of the parties and are subject to any conditions or other limitations under the agreement.

ARTICLE 5/13 (= U.Pr. Art. 5.2.2)
(Third party identifiable)

The beneficiary must be identifiable with adequate certainty by the contract but need not be in existence at the time the contract is made.

ARTICLE 5/14 (= U.Pr. Art. 5.2.3)
(Exclusion and limitation clauses)

The conferment of rights in the beneficiary includes the right to invoke a clause in the contract which excludes or limits the liability of the beneficiary.

ARTICLE 5/15 (= U.Pr. Art. 5.2.4)
(Defences)

The promisor may assert against the beneficiary all defences which the promisor could assert against the promisee.

ARTICLE 5/16 (= U.Pr. Art. 5.2.5)
(Revocation)

The parties may modify or revoke the rights conferred by the contract on the beneficiary until the beneficiary has accepted them or reasonably acted in reliance on them.

ARTICLE 5/17 (= U.Pr. Art. 5.2.6)
(Renunciation)

The beneficiary may renounce a right conferred on it.

ARTICLE 5/18 (new)
(Promise for another)

A party may not, by way of a contract made in its own name, bind anyone but itself and its heirs, but it may promise in its own name that a third party will perform an obligation; in that case, the first party shall be liable vis-à-vis the second party to the contract for any damage that might result if the third person fails to perform.

CHAPTER 6 — PERFORMANCE

SECTION 1: PERFORMANCE IN GENERAL

ARTICLE 6/1 (= U.Pr. Art. 6.1.1)
(Time of performance)

A party must perform its obligations:
(a) if a time is fixed by or determinable from the contract, at that time;
(b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the other party is to choose a time;
(c) in any other case, within a reasonable time after the conclusion of the contract.

ARTICLE 6/2 (comp. U.Pr. Art. 6.1.2)
(Performance at one time or in instalments)

In cases under Article 6/1 (b) and (c), a party must perform its obligations at one time if that performance can be rendered at one time and the circumstances do not indicate otherwise.

ARTICLE 6/3 (= U.Pr. Art. 6.1.3)
(Partial performance)

(1) The obligee may reject an offer to perform in part at the time performance is due, whether or not such offer is coupled with an assurance as to the balance of the performance, unless the obligee has no legitimate interest in so doing.
(2) Additional expenses caused to the obligee by partial performance are to be borne by the obligor without prejudice to any other remedy.

ARTICLE 6/4 (= U.Pr. Art. 6.1.4)
(Order of performance)

(1) To the extent that the performances of the parties can be rendered simultaneously, the parties are bound to render them simultaneously unless the circumstances indicate otherwise.
(2) To the extent that the performance of only one party requires a period of time, that party is bound to render its performance first, unless the circumstances indicate otherwise.

ARTICLE 6/5 (= U.Pr. Art. 6.1.5)
(Earlier performance)

(1) The obligee may reject an earlier performance unless it has no legitimate interest in so doing.
(2) Acceptance by a party of an earlier performance does not affect the time for the performance of its own obligations if that time has been fixed irrespective of the performance of the other party’s obligations.
(3) Additional expenses caused to the obligee by earlier performance are to be borne by the obligor, without prejudice to any other remedy.

ARTICLE 6/6 (new)
(Expiry of period for performance)

(1) The obligor shall not be entitled to the period for performance stipulated under Article 6/1 if it becomes insolvent or if it reduces, unilaterally and without the obligee’s consent, the security offered to the latter.
(2) If the period for performance has expired for the purposes of paragraph (1), the obligation falls due immediately.
(3) Where there are several obligors, who may or may not be acting jointly and severally, the expiry of the period for performance by one of these obligors shall not affect the other obligors.

ARTICLE 6/7 (comp. U.Pr. Art. 6.1.6)
(Place of performance)

(1) If the place of performance is neither fixed by, nor determinable from, the contract, a party is to perform:
(a) a monetary obligation, at the obligee’s place of business or place of abode;
(b) any other obligation, at its own place of business or place of abode.
(2) A party must bear any increase in the expenses incidental to performance which is caused by a change in its place of business or place of abode subsequent to the conclusion of the contract.

ARTICLE 6/8 (new)
(Person vis-à-vis whom the obligation must be performed)

(1) The obligation must be performed vis-à-vis the obligor or vis-à-vis a person authorised by the former.
(2) Where the obligation is performed vis-à-vis a third party, the performance shall be valid if the obligor ratifies it; failing such ratification, it shall be valid only to the extent that the obligor benefits by it.
(3) An obligation performed in good faith vis-à-vis an apparent obligor shall be valid even when the latter is subsequently found not to be the true obligor.

ARTICLE 6/9 (new)
(Performance to the detriment of an attaching obligee)

An obligation performed by an obligor vis-à-vis its obligee to the detriment of an attaching obligee is not valid against the attaching obligee who, according to its rights, may compel the obligor to pay again; in that case, the obligor has a remedy against the obligee so paid.

ARTICLE 6/10 (new)
(Performance by a third party)

An obligation may be performed by anyone, even by a third party. However, the obligee shall not be compelled to accept performance by a third party where it is to the obligee’s advantage to receive performance by the obligor in person.

ARTICLE 6/11 (= U.Pr. Art. 6.1.7)
(Payment by cheque or other instrument)

(1) Payment may be made in any form used in the ordinary course of business at the place for payment.
(2) However, an obligee who accepts, either by virtue of paragraph (1) or voluntarily, a cheque, any other order to pay or a promise to pay, is presumed to do so only on condition that it will be honoured.

ARTICLE 6/12 (= U.Pr. Art. 6.1.8) 
(Payment by funds transfer)

(1) Unless the obligee has indicated a particular account, payment may be made by a transfer to any of the financial institutions in which the obligee has made it known that it has an account.
(2) In case of payment by a transfer the obligation of the obligor is discharged when the transfer to the obligee’s financial institution becomes effective.

ARTICLE 6/13 (= U.Pr. Art. 6.1.9)
(Currency of payment)

(1) If a monetary obligation is expressed in a currency other than that of the place for payment, it may be paid by the obligor in the currency of the place for payment unless
(a) that currency is not freely convertible; or
(b) the parties have agreed that payment should be made only in the currency in which the monetary obligation is expressed.
(2) If it is impossible for the obligor to make payment in the currency in which the monetary obligation is expressed, the obligee may require payment in the currency of the place for payment, even in the case referred to in paragraph (1)(b).
(3) Payment in the currency of the place for payment is to be made according to the applicable rate of exchange prevailing there when payment is due.
(4) However, if the obligor has not paid at the time when payment is due, the obligee may require payment according to the applicable rate of exchange prevailing either when payment is due or at the time of actual payment.

ARTICLE 6/14 (= U.Pr. Art. 6.1.10)
(Currency not expressed)

Where a monetary obligation is not expressed in a particular currency, payment must be made in the currency of the place where payment is to be made.

ARTICLE 6/15 (= U.Pr. Art. 6.1.11)
(Costs of performance)

Each party shall bear the costs of performance of its obligations.

ARTICLE 6/16 (= U.Pr. Art. 6.1.12)
(Imputation of payments)

(1) An obligor owing several monetary obligations to the same obligee may specify at the time of payment the debt to which it intends the payment to be applied. However, the payment discharges first any expenses, then interest due and finally the principal.
(2) If the obligor makes no such specification, the obligee may, within a reasonable time after payment, declare to the obligor the obligation to which it imputes the payment, provided that the obligation is due and undisputed.
(3) In the absence of imputation under paragraphs (1) or (2), payment is imputed to that obligation which satisfies one of the following criteria in the order indicated:
(a) an obligation which is due or which is the first to fall due;
(b) the obligation for which the obligee has least security;
(c) the obligation which is the most burdensome for the obligor;
(d) the obligation which has arisen first.
If none of the preceding criteria applies, payment is imputed to all the obligations proportionally.

ARTICLE 6/17 (comp. U.Pr. Art. 6.1.13)
(Imputation en cas d’obligations non pécuniaires)

Article 6/16 applies with appropriate adaptations to the imputation of performance of nonmonetary obligations.

ARTICLE 6/18 (comp. U.Pr. Art. 6.1.14)
(Application for public permission) 

Where the law of a State requires a public permission affecting the validity of the contract or its performance and neither that law nor the circumstances indicate otherwise
(a) if only one party has its place of business or place of abode in that State, that party shall take the measures necessary to obtain the permission;
(b) in any other case the party whose performance requires permission shall take the necessary measures.

ARTICLE 6/19 (= U.Pr. Art. 6.1.15)
(Procedure in applying for permission)

(1) The party required to take the measures necessary to obtain the permission shall do so without undue delay and shall bear any expenses incurred.
(2) That party shall whenever appropriate give the other party notice of the grant or refusal of such permission without undue delay.

ARTICLE 6/20 (= U.Pr. Art. 6.1.16)
(Permission neither granted nor refused)

(1) If, notwithstanding the fact that the party responsible has taken all measures required, permission is neither granted nor refused within an agreed period or, where no period has been agreed, within a reasonable time from the conclusion of the contract, either party is entitled to terminate the contract.
(2) Where the permission affects some terms only, paragraph (1) does not apply if, having regard to the circumstances, it is reasonable to uphold the remaining contract even if the permission is refused.

ARTICLE 6/21 (= U.Pr. Art. 6.1.17)
(Permission refused)

(1) 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.
(2) Where the refusal of a permission renders the performance of the contract impossible in whole or in part, the rules on non-performance apply.

SECTION 2: HARDSHIP

ARTICLE 6/22 (comp. U.Pr. Art. 6.2.1)
(Contract to be observed)
Where the performance of a contract becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions.

ARTICLE 6/23 (comp. U.Pr. Art. 6.2.2)
(Definition)

There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, and
(a) the events occur or become known to the disadvantaged party after the conclusion of the contract;
(b) the events could not reasonably have been taken into account by the disadvantaged party at the time of the conclusion of the contract;
(c) the events are beyond the control of the disadvantaged party; and
(d) the risk of the events was not assumed by the disadvantaged party.

ARTICLE 6/24 (comp. U.Pr. Art. 6.2.3)
(Effects of hardship)

(1) In case of hardship the disadvantaged party is entitled to request renegotiations. The request shall be made without undue delay and shall indicate the grounds on which it is based.
(2) The request for renegotiation does not in itself entitle the disadvantaged party to withhold performance.
(3) Upon failure to reach agreement within a reasonable time either party may resort to the court.
(4) If the court finds hardship it may, if reasonable,
(a) terminate the contract at a date and on terms to be fixed, or
(b) adapt the contract with a view to restoring its equilibrium.

CHAPTER 7 — NON-PERFORMANCE

SECTION 1: NON-PERFORMANCE IN GENERAL

ARTICLE 7/1 (= U.Pr. Art. 7.1.1)
(Non-performance defined)

Non-performance is failure by a party to perform any of its obligations under the contract, including defective performance or late performance.

ARTICLE 7/2 (= U.Pr. Art. 7.1.2)
(Interference by the other party)

A party may not rely on the non-performance of the other party to the extent that such nonperformance was caused by the first party’s act or omission or by another event as to which the first party bears the risk.

ARTICLE 7/3 (= U.Pr. Art. 7.1.3)
(Withholding performance)

(1) Where the parties are to perform simultaneously, either party may withhold performance until the other party tenders its performance.
(2) Where the parties are to perform consecutively, the party that is to perform later may withhold its performance until the first party has performed.

ARTICLE 7/4 (= U.Pr. Art. 7.1.4)
(Cure by non-performing party)

(1) The non-performing party may, at its own expense, cure any non-performance, provided that
(a) without undue delay, it gives notice indicating the proposed manner and timing of the cure;
(b) cure is appropriate in the circumstances;
(c) the aggrieved party has no legitimate interest in refusing cure; and
(d) cure is effected promptly.
(2) The right to cure is not precluded by notice of termination.
(3) Upon effective notice of cure, rights of the aggrieved party that are inconsistent with the non-performing party’s performance are suspended until the time for cure has expired.
(4) The aggrieved party may withhold performance pending cure.
(5) Notwithstanding cure, the aggrieved party retains the right to claim damages for delay as well as for any harm caused or not prevented by the cure.

ARTICLE 7/5 (= U.Pr. Art. 7.1.5)
(Additional period for performance)
(1) In a 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 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 this Chapter.
(3) Where in a case of delay in performance which is not fundamental the aggrieved party has given notice allowing an additional period of time of reasonable length, it may terminate the contract at the end of that period. If the additional period allowed is not of reasonable length it shall be extended to a reasonable length. The aggrieved party may in its notice provide that if the other party fails to perform within the period allowed by the notice the contract shall automatically terminate.
(4) Paragraph (3) does not apply where the obligation which has not been performed is only a minor part of the contractual obligation of the non-performing party.

ARTICLE 7/6 (= U.Pr. Art. 7.1.6)
(Exemption clauses)

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, having regard to the purpose of the contract.

ARTICLE 7/7 (= U.Pr. Art. 7.1.7)
(Force majeure)

(1) Non-performance by a party is excused if that party proves that the non-performance was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.
(2) When the impediment is only temporary, the excuse shall have effect for such period as is reasonable having regard to the effect of the impediment on the performance of the contract.
(3) The party who fails to perform must give notice to the other party of the impediment and its effect on its ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, it is liable for damages resulting from such non-receipt.
(4) Nothing in this article prevents a party from exercising a right to terminate the contract or to withhold performance or request interest on money due.

SECTION 2: RIGHT TO PERFORMANCE

ARTICLE 7/8 (= U.Pr. Art. 7.2.1)
(Performance of monetary obligation)

Where a party who is obliged to pay money does not do so, the other party may require payment.

ARTICLE 7/9 (= U.Pr. Art. 7.2.2)
(Performance of non-monetary obligation)

Where a party who owes an obligation other than one to pay money does not perform, the other party may require performance, unless
(a) performance is impossible in law or in fact;
(b) performance or, where relevant, enforcement is unreasonably burdensome or expensive;
(c) the party entitled to performance may reasonably obtain performance from another source;
(d) performance is of an exclusively personal character; or
(e) 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.

ARTICLE 7/10 (comp. U.Pr. Art. 7.2.3)
(Repair and replacement of defective performance)

The right to performance includes in appropriate cases the right to require repair, replacement, or other cure of defective performance. The provisions of Articles 7/8 and 7/9 apply accordingly.

ARTICLE 7/11 (= U.Pr. Art. 7.2.4)
(Judicial penalty)

(1) 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.
(2) 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.

ARTICLE 7/12 (= U.Pr. Art. 7.2.5)
(Change of remedy)

(1) An aggrieved party who has required performance of a non-monetary obligation and who has not received performance within a period fixed or otherwise within a reasonable period of time may invoke any other remedy.
(2) Where the decision of a court for performance of a non-monetary obligation cannot be enforced, the aggrieved party may invoke any other remedy.

SECTION 3: TERMINATION

ARTICLE 7/13 (comp. U.Pr. Art. 7.3.1)
(Right to terminate the contract)

(1) A party may terminate the contract where the failure of the other party to perform an obligation under the contract amounts to a fundamental non-performance.
(2) In determining whether a failure to perform an obligation amounts to a fundamental non-performance regard shall be had, in particular, to whether
(a) 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 such result;
(b) strict compliance with the obligation which has not been performed is of essence under the contract;
(c) the non-performance is intentional or reckless;
(d) the non-performance gives the aggrieved party reason to believe that it cannot rely on the other party’s future performance;
(e) the non-performing party will suffer disproportionate loss as a result of the preparation or performance if the contract is terminated.
(3) In the case of delay the aggrieved party may also terminate the contract if the other party fails to perform before the time allowed it under Article 7/5 has expired.

ARTICLE 7/14 (= U.Pr. Art. 7.3.2)
(Notice of termination)

(1) The right of a party to terminate the contract is exercised by notice to the other party.
(2) If performance has been offered late or otherwise does not conform to the contract the aggrieved party will lose its right to terminate the contract unless it gives notice to the other party within a reasonable time after it has or ought to have become aware of the offer or of the non-conforming performance.

ARTICLE 7/15 (= U.Pr. Art. 7.3.3)
(Anticipatory non-performance)

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

ARTICLE 7/16 (= U.Pr. Art. 7.3.4)
(Adequate assurance of due performance)

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 may meanwhile withhold its own performance. Where this assurance is not provided within a reasonable time the party demanding it may terminate the contract.

ARTICLE 7/17 (= U.Pr. Art. 7.3.5)
(Effects of termination in general)

(1) Termination of the contract releases both parties from their obligation to effect and to receive future performance.
(2) Termination does not preclude a claim for damages for non-performance.
(3) Termination does not affect any provision in the contract for the settlement of disputes or any other term of the contract which is to operate even after termination.

ARTICLE 7/18 (= U.Pr. Art. 7.3.6)
(Restitution)

(1) On termination of the contract either party may claim restitution of whatever it has supplied, provided that such party concurrently makes restitution of whatever it has received. If restitution in kind is not possible or appropriate allowance should be made in money whenever reasonable.
(2) However, if performance of the contract has extended over a period of time and the contract is divisible, such restitution can only be claimed for the period after termination has taken effect.

SECTION 4: DAMAGES

ARTICLE 7/19 (comp. U.Pr. Art. 7.4.1)
(Right to damages)

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 this Uniform Act.

ARTICLE 7/20 (= U.Pr. Art. 7.4.2)
(Full compensation)

(1) The aggrieved party is entitled to full compensation for harm sustained as a result of the non-performance. Such harm includes both any loss which it suffered and any gain of which it was deprived, taking into account any gain to the aggrieved party resulting from its avoidance of cost or harm.
(2) Such harm may be non-pecuniary and includes, for instance, physical suffering or emotional distress.

ARTICLE 7/21 (= U.Pr. Art. 7.4.3)
(Certainty of harm)

(1) Compensation is due only for harm, including future harm, that is established with a reasonable degree of certainty.
(2) Compensation may be due for the loss of a chance in proportion to the probability of its occurrence.
(3) Where the amount of damages cannot be established with a sufficient degree of certainty, the assessment is at the discretion of the court.

ARTICLE 7/22 (= U.Pr. Art. 7.4.4)
(Foreseeability of harm)

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 nonperformance.

ARTICLE 7/23 (= U.Pr. Art. 7.4.5)
(Proof of harm in case of replacement transaction)

Where 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.

ARTICLE 7/24 (= U.Pr. Art. 7.4.6)
(Proof of harm by current price)

(1) Where 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, 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 harm.
(2) Current price is the price generally charged for goods delivered or services rendered in comparable circumstances at the place where the contract should have been performed or, if there is no current price at that place, the current price at such other place that appears reasonable to take as a reference.

ARTICLE 7/25 (= U.Pr. Art. 7.4.7)
(Harm due in part to aggrieved party)

Lorsque le préjudice est partiellement imputable à un acte ou une omission du créancier ou à un autre événement dont il a assumé le risque, le montant des dommages-intérêts est réduit dans la mesure où ces facteurs ont contribué à la réalisation du préjudice et compte tenu du comportement respectif des parties.

ARTICLE 7/26 (= U.Pr. Art. 7.4.8)
(Mitigation of harm)

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

ARTICLE 7/27 (= U.Pr. Art. 7.4.9)
(Interest for failure to pay money)

(1) If a party does not pay a sum of money when it falls due the aggrieved party is entitled to interest upon that sum from the time when payment is due to the time of payment whether or not the non-payment is excused.
(2) The rate of interest shall be the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place for payment, or where no such rate exists at that place, then the same rate in the State of the currency of payment. In the absence of such a rate at either place the rate of interest shall be the appropriate rate fixed by the law of the State of the currency of payment.
(3) The aggrieved party is entitled to additional damages if the non-payment caused it a greater harm.

ARTICLE 7/28 (= U.Pr. Art. 7.4.10)
(Interest on damages)

Unless otherwise agreed, interest on damages for non-performance of non-monetary obligations accrues as from the time of non-performance.

ARTICLE 7/29 (= U.Pr. Art. 7.4.11)
(Manner of monetary redress)

(1) 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.
(2) Damages to be paid in instalments may be indexed.

ARTICLE 7/30 (= U.Pr. Art. 7.4.12)
(Currency in which to assess damages)

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.

ARTICLE 7/31 (= U.Pr. Art. 7.4.13)
(Agreed payment for non-performance)

(1) Where the contract provides that a party who does not perform is to pay a specified sum to the aggrieved party for such non-performance, the aggrieved party is entitled to that sum irrespective of its actual harm.
(2) However, notwithstanding any agreement to the contrary 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.

CHAPTER 8 – SET-OFF

ARTICLE 8/1 (= U.Pr. Art. 8.1)
(Conditions of set-off)

(1) Where two parties owe each other money or other performances of the same kind, either of them ("the first party") may set off its obligation against that of its obligee ("the other party") if at the time of set-off,
(a) the first party is entitled to perform its obligation;
(b) the other party’s obligation is ascertained as to its existence and amount and performance is due.
(2) If the obligations of both parties arise from the same contract, the first party may also set off its obligation against an obligation of the other party which is not ascertained as to its existence or to its amount.

ARTICLE 8/2 (= U.Pr. Art. 8.2)
(Foreign currency set-off)

Where the obligations are to pay money in different currencies, the right of set-off may be exercised, provided that both currencies are freely convertible and the parties have not agreed that the first party shall pay only in a specified currency.

ARTICLE 8/3 (= U.Pr. Art. 8.3)
(Set-off by notice)

The right of set-off is exercised by notice to the other party.

ARTICLE 8/4 (= U.Pr. Art. 8.4)
(Content of notice)

(1) The notice must specify the obligations to which it relates.
(2) If the notice does not specify the obligation against which set-off is exercised, the other party may, within a reasonable time, declare to the first party the obligation to which set-off relates. If no such declaration is made, the set-off will relate to all the obligations proportionally.

ARTICLE 8/5 (= U.Pr. Art. 8.5)
(Effect of set-off)

(1) Set-off discharges the obligations.
(2) If obligations differ in amount, set-off discharges the obligations up to the amount of the lesser obligation.
(3) Set-off takes effect as from the time of notice.

CHAPTER 9 – MERGER OF OBLIGATIONS

ARTICLE 9/1 (new)
(Notion – effect)

If the obligee and the obligor are one and the same person, a merger results which extinguishes the obligation.

ARTICLE 9/2 (new)
(Sureties)

Merger of the qualities of obligee and obligor in the same person avails the sureties. Merger of the qualities of surety and obligee or of surety and principal obligor does not extinguish the primary obligation.

ARTICLE 9/3 (new)
(Joint and several co-obligors)

Merger of the qualities of obligee and joint and several co-obligors, or of obligor and joint and several co-obligees, only extinguishes the obligation up to the amount of the co-obligor’s or the co-obligee’s obligation.

CHAPTER 10 – CONDITIONAL, JOINT AND SEVERAL AND ALTERNATIVE OBLIGATIONS

SECTION 1: CONDITIONAL OBLIGATIONS

ARTICLE 10/1 (new)
(Notion – Types of condition)

(1) A contractual obligation is conditional where the parties make it depend on a future and uncertain event, either by suspending it until the event occurs (a suspensive condition), or by extinguishing it when the event occurs (a resolutory condition).
(2) An obligation is not conditional if it depends on an event that, unbeknown to the obligor, had already occurred at the time that the obligation was entered into.

ARTICLE 10/2 (new)
(Impossible or unlawful condition)

A condition to which an obligation is subject must be possible and may be neither unlawful nor contrary to public order or good moral standards; otherwise it is void and renders void the obligation that depends upon it.

ARTICLE 10/3 (new)
(Discretional condition)

An obligation that depends upon a condition that is at the sole discretion of the obligor is void.

ARTICLE 10/4 (new)
(Interference by a party)

(1) A condition is deemed to be fulfilled where one of the parties, acting in breach of its duty of good faith or its duty to co-operate, prevents the condition from being fulfilled.
(2) A condition is deemed not to be fulfilled where one of the parties, acting in breach of its duty of good faith or its duty to co-operate, deliberately causes the condition to be fulfilled.

ARTICLE 10/5 (new)
(Pending condition)

(1) An obligee, pending fulfilment of the condition, may take any useful measures to preserve its rights.
(2) The conditional nature of an obligation does not prevent it from being transferable or transmissible.

ARTICLE 10/6 (new)

(Condition fulfilled)

(1) An obligation with a suspensive condition takes effect when the condition is fulfilled.
(2) An obligation with a resolutory condition is discharged when the condition is fulfilled.

SECTION 2: JOINT AND SEVERAL OBLIGATIONS

§ 1. Plurality of obligors

ARTICLE 10/7 (new)
(Notion)

Obligors are jointly and severally bound where they are bound to the obligee for the same thing in such a way that each of them may be compelled separately to perform the whole obligation, and where performance by a single obligor releases the others towards the obligee.

ARTICLE 10/8 (new)
(Sources)

(1) Where several obligors are obligated to an obligee for the same thing under the same contract, they are considered joint and several co-obligors unless the contract or the law provide otherwise.
(2) A joint and several obligation also arises:
(a) from the indivisible nature of the obligation,
(b) from a contract clause or
(c) from the law.

ARTICLE 10/9 (new)
(Obligee’s option)

(1) The obligee of a joint and several obligation has the option of choosing which of the coobligors shall make full payment.
(2) Proceedings brought against any one of the joint and several obligors do not prevent the obligee from bringing suit against any of the other obligors.

ARTICLE 10/10 (new)
(Defences)

(1) A joint and several obligor who is sued by its obligee may set up against the obligee all the defences that are personal to it or that are common to all the co- obligors, but it may not set up defences that are purely personal to one or several of the other co- obligors.
(2) An obligee who renounces joint and several liability in favour of one of the obligors retains its solidary remedy against the other obligors for the whole debt.
(3) An obligee who agrees to renounce its rights in favour of a joint and several obligor discharges the other obligors up to the share of the beneficiary obligor.
(4) Performance or set-off exercised by a joint and several obligor, or set-off exercised by the obligee against the obligation of a joint and several obligor releases the other obligors in relation to the obligee up to the amount of the performance or the set-off.
(5) Merger of obligations arising out of the relationship between the obligee and a joint and several obligor only releases the co- obligors up to the amount of the portion of that obligor.

ARTICLE 10/11 (new)
(Contributory action)

(1) The joint and several obligors are liable in equal amounts, unless the contract or the law provide otherwise.
(2) An obligor who has paid more than its share may claim reimbursement of the amount paid in excess from any of the other obligors, up to the amount for which each obligor remains liable, as well as the share of the costs it has incurred.
(3) A joint and several obligor to whom the provision set out in paragraph (2) applies may also, subject to any rights which the obligee may have retained, be subrogated in the rights and actions of the obligee, including any sureties attached thereto, in order to recover the outstanding shares of any of the other obligors.
(4) A joint and several obligor who is sued for contribution by whoever of its co-obligors discharged the obligation may assert any common defence not asserted by that co-obligor against the obligee; it may also assert any defence that is purely personal and does not apply to any of its co-obligors.
(5) The loss arising from the insolvency of one of the joint and several obligors is equally divided among the other co-obligors up to the amount of their respective shares.

ARTICLE 10/12 (new)
(Decease of a solidary obligor)

The obligation of a joint and several obligor is divided, as of right, among its heirs, unless the obligation is indivisible.

§ 2. Plurality of obligees

ARTICLE 10/13 (new)
(Notion)

Several obligees are joint and several when each of them is entitled to exact the whole performance of the obligation from the obligor and to give a full acquittance for it.

ARTICLE 10/14 (new)
(Source)

Obligees are joint and several only where it has been expressly stipulated.

ARTICLE 10/15 (new)
(Effect)

(1) Performance of an obligation in favour of one of the joint and several obligees releases the obligor towards the other obligees.
(2) An obligor has the option of performing the obligation in favour of any of the joint and several obligees, provided it has not been sued by any of them.
(3) A release from the obligation granted by one of the joint and several obligees releases the obligor , but only for the portion of that obligee. The same rule applies to all cases in which the obligation is extinguished otherwise than by performance thereof.

ARTICLE 10/16 (new)
(Division between obligees)

(1) Joint and several obligees are entitled to equal shares unless the contract or the law stipulate otherwise.
(2) An obligee who has received more than its share shall reimburse the surplus to the other obligees pro rata of their respective shares.

SECTION 3 : ALTERNATIVE OBLIGATIONS

ARTICLE 10/17 (new)
(Notion)

An alternative obligation is one which has two principal undertakings as its object, the performance of either of which releases the obligor for the whole.

ARTICLE 10/18 (new)
(Choice of performance)

(1) The choice of the undertaking to be performed belongs to the obligor, unless it has been expressly granted to the obligee.
(2) Where, after being put in default, the party who has the choice of the undertaking to be performed fails to exercise it within the time allotted to it to do so, the choice of the undertaking passes to the other party.

ARTICLE 10/19 (new)
(Impossibility of performance– choice of the obligor)

(1) An obligor who may choose the undertaking it is to perform is held, if performance becomes impossible, to perform the undertaking that is still possible.
(2) If, in such case, all the undertakings become impossible to perform and if the obligor is to blame for the impossibility in each case, the obligor shall be liable towards the obligee for an amount equal to the value of the last undertaking that it was possible to perform.

ARTICLE 10/20 (new)
(Impossibility of performance– choice of the obligee)

(1) An obligee who may choose which undertaking is to be performed must, if one of the undertakings becomes impossible to perform, accept performance of whichever undertaking remains possible, unless the obligor was to blame for the impossibility; in that case, the obligee may exact either performance in kind of one of the remaining possible undertakings, or claim damages for the harm resulting from non-performance of the undertaking that has become impossible.
(2) If, in these circumstances, all the undertakings become impossible to perform and the obligor is to blame, the obligee may claim damages for the harm resulting from nonperformance of any of these undertakings.

ARTICLE 10/21 (new)
(Impossibility not attributable)

Where it becomes impossible to perform any of the undertakings but the obligor is not to blame, the obligation is extinguished.

CHAPTER 11 – ASSIGNMENT OF RIGHTS, TRANSFER OF OBLIGATIONS, ASSIGNMENT OF CONTRACTS

SECTION 1 : ASSIGNMENT OF RIGHTS

ARTICLE 11/1 (= U.Pr. Art. 9.1.1)
(Definitions)

“Assignment of a right” means the transfer by agreement from one person (the “assignor”) to another person (the “assignee”), including transfer by way of security, of the assignor’s right to payment of a monetary sum or other performance from a third person (“the obligor”).

ARTICLE 11/2 (= U.Pr. Art. 9.1.2)
(Exclusions)

This Section does not apply to transfers made under the special rules governing the transfers:
(a) of instruments such as negotiable instruments, documents of title or financial instruments, or
(b) of rights in the course of transferring a business.

ARTICLE 11/3 (= U.PR. ART. 9.1.3)
(Assignability of non-monetary rights)

A right to non-monetary performance may be assigned only if the assignment does not render the obligation significantly more burden¬some.

ARTICLE 11/4 (= U.Pr. Art. 9.1.4)
(Partial assignment)

(1) A right to the payment of a monetary sum may be assigned partially.
(2) A right to other performance may be assigned partially only if it is divisible, and the assignment does not render the obligation significantly more burdensome.

ARTICLE 11/5 (= U.Pr. Art. 9.1.5)
(Future rights)

A future right is deemed to be transferred at the time of the agreement, provided the right, when it comes into existence, can be identified as the right to which the assignment relates.

ARTICLE 11/6 (= U.PR. ART. 9.1.6)
(Rights assigned without individual specification)

A number of rights may be assigned without individual specification, provided such rights can be identified as rights to which the assignment relates at the time of the assignment or when they come into existence.

ARTICLE 11/7 (= U.Pr. Art. 9.1.7)
(Agreement between assignor and assignee sufficient)

(1) A right is assigned by mere agreement between the assignor and the assignee, without notice to the obligor.
(2) The consent of the obligor is not required unless the obligation in the circum¬stances is of an essentially personal character.

ARTICLE 11/8 (= U.Pr. Art. 9.1.8)
(Obligor’s additional costs)

The obligor has a right to be compensated by the assignor or the assignee for any additional costs caused by the assignment.

ARTICLE 11/9 (= U.Pr. Art. 9.1.9)
(Non-assignment clauses)

(1) 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.
(2) 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. Never¬theless, the assignment is effective if the assignee, at the time of the assignment, neither knew nor ought to have known of the agreement. The assignor may then be liable to the obligor for breach of contract.

ARTICLE 11/10 (= U.Pr. Art. 9.1.10)
(Notice to the obligor)

(1) Until the obligor receives a notice of the assignment from either the assignor or the assignee, it is discharged by paying the assignor.
(2) After the obligor receives such a notice, it is discharged only by paying the assignee.

ARTICLE 11/11 (= U.Pr. Art. 9.1.11)

(Successive assignments)

If the same right has been assigned by the same assignor to two or more successive assignees, the obligor is discharged by paying according to the order in which the notices were received.

ARTICLE 11/12 (= U.Pr. Art. 9.1.12)
(Adequate proof of assignment)

(1) If notice of the assignment is given by the assignee, the obligor may request the assignee to provide within a reasonable time adequate proof that the assignment has been made.
(2) Until adequate proof is provided, the obligor may withhold payment.
(3) Unless adequate proof is provided, notice is not effective.
(4) Adequate proof includes, but is not limited to, any writing emanating from the assignor and indicating that the assignment has taken place.

ARTICLE 11/13 (= U.Pr. Art. 9.1.13)
(Defences and rights of set-off)

(1) The obligor may assert against the assignee all defences that the obligor could assert against the assignor.
(2) The obligor may exercise against the assignee any right of set-off available to the obligor against the assignor up to the time notice of assignment was received.

ARTICLE 11/14 (= U.Pr. Art. 9.1.14)
(Rights related to the right assigned)

The assignment of a right transfers to the assignee:
(a) all the assignor’s rights to payment or other performance under the contract in respect of the right assigned, and
(b) all rights securing performance of the right assigned.

ARTICLE 11/15 (= U.Pr. Art. 9.1.15)
(Undertakings of the assignor)

The assignor undertakes towards the assignee, except as otherwise disclosed to the assignee, that:
(a) the assigned right exists at the time of the assignment, unless the right is a future right;
(b) the assignor is entitled to assign the right;
(c) the right has not been previously assigned to another assignee, and it is free from any right or claim from a third party;
(d) the obligor does not have any defences;
(e) neither the obligor nor the assignor has given notice of set-off concerning the assigned right and will not give any such notice;
(f) the assignor will reimburse the assignee for any payment received from the obligor before notice of the assignment was given.

SECTION 2: TRANSFER OF OBLIGATIONS

ARTICLE 11/16 (= U.Pr. Art. 9.2.1)
(Modes of transfer)

An obligation to pay money or render other performance may be transferred from one person (the “original obligor”) to another person (the “new obligor”) either
a) by an agreement between the original obligor and the new obligor subject to Article 9.2.3, or
b) by an agreement between the obligee and the new obligor, by which the new obligor assumes the obligation.

ARTICLE 11/17 (= U.Pr. Art. 9.2.2)
(Exclusion)

This Section does not apply to transfers of obligations made under the special rules governing transfers of obligations in the course of transferring a business.

ARTICLE 11/18 (= U.Pr. Art. 9.2.3)
(Requirement of obligee’s consent to transfer)

The transfer of an obligation by an agreement between the original obligor and the new obligor requires the consent of the obligee.

ARTICLE 11/19 (= U.Pr. Art. 9.2.4)
(Advance consent of obligee)

(1) The obligee may give its consent in advance.
(2) If the obligee has given its consent in advance, the transfer of the obligation becomes effective when a notice of the transfer is given to the obligee or when the obligee acknowledges it.

ARTICLE 11/20 (= U.Pr. Art. 9.2.5)
(Discharge of original obligor)

(1) The obligee may discharge the original obligor.
(2) The obligee may also retain the original obligor as an obligor in case the new obligor does not perform properly.
(3) Otherwise the original obligor and the new obligor are jointly and severally liable.

ARTICLE 11/21 (comp. U.Pr. Art. 9.2.6)
(Third party performance)

(1) Without the obligee’s consent, the obligor may contract with another person that this person will perform the obligation in place of the obligor, unless the obligation in the circumstances has an essentially personal character.
(2) The obligee retains its claim against the obligor.

ARTICLE 11/22 (= U.Pr. Art. 9.2.7)
(Defences and rights of set-off)

(1) The new obligor may assert against the obligee all defences which the original obligor could assert against the obligee.
(2) The new obligor may not exercise against the obligee any right of set-off available to the original obligor against the obligee.

ARTICLE 11/23 (comp. U.Pr. Art. 9.2.8)
(Rights related to the obligation transferred)

(1) The obligee may assert against the new obligor all its rights to payment or other performance under the contract in respect of the obligation transferred.
(2) If the original obligor is discharged under Article 11/20, a security granted by any person other than the new obligor for the performance of the obligation is discharged, unless that other person agrees that it should continue to be available to the obligee.
(3) Discharge of the original obligor also extends to any security of the original obligor given to the obligee for the performance of the obligation, unless the security is over an asset which is transferred as part of a transaction between the original obligor and the new obligor.

SECTION 3: ASSIGNMENT OF CONTRACTS

ARTICLE 11/24 (= U.Pr. Art. 9.3.1)
(Definitions)

“Assignment of a contract” means the transfer by agreement from one person (the “assignor”) to another person (the “assignee”) of the assignor’s rights and obligations arising out of a contract with another person (the “other party”).

ARTICLE 11/25 (= U.Pr. Art. 9.3.2)
(Exclusion)

This Section does not apply to the assignment of contracts made under the special rules governing transfers of contracts in the course of transferring a business.

ARTICLE 11/26 (= U.Pr. Art. 9.3.3)
(Requirement of consent of the other party)

The assignment of a contract requires the consent of the other party.

ARTICLE 11/27 (= U.Pr. Art. 9.3.4)
(Advance consent of the other party)

(1) The other party may give its consent in advance.
(2) If the other party has given its consent in advance, the assignment of the contract becomes effective when a notice of the assignment is given to the other party or when the other party acknowledges it.

ARTICLE 11/28 (= U.Pr. Art. 9.3.5)
(Discharge of the assignor)

(1) The other party may discharge the assignor.
(2) The other party may also retain the assignor as an obligor in case the assignee does not perform properly.
(3) Otherwise the assignor and the assignee are jointly and severally liable.

ARTICLE 11/29 (comp. U.Pr. Art. 9.3.6)
(Defences and rights of set-off)

(1) To the extent that the assignment of a contract involves an assignment of rights, Article 11/13 applies accordingly.
(2) To the extent that the assignment of a contract involves a transfer of obligations, Article 11/22 applies accordingly.

ARTICLE 11/30 (comp. U.Pr. Art. 9.3.7)
(Rights transferred with the contract)

(1) To the extent that the assignment of a contract involves an assignment of rights, Article 11/14 applies accordingly.
(2) To the extent that the assignment of a contract involves a transfer of obligations, Article 11/23 applies accordingly.

CHAPTER 12 – LIMITATION PERIODS

ARTICLE 12/1 (comp. U.Pr. Art. 10.1)
(Scope of the Chapter)

(1) The exercise of rights governed by this Uniform Act is barred by the expiration of a period of time, referred to as “limitation period”, according to the rules of this Chapter.
(2) This Chapter does not govern the time within which one party is required under this Uniform Act, as a condition for the acquisition or exercise of its right, to give notice to the other party or to perform any act other than the institution of legal proceedings.

ARTICLE 12/2 (= U.Pr. Art. 10.2)
(Limitation periods)

(1) The general limitation period is three years beginning on the day after the day the obligee knows or ought to know the facts as a result of which the obligee’s right can be exercised.
(2) In any event, the maximum limitation period is ten years beginning on the day after the day the right can be exercised.

ARTICLE 12/3 (= U.Pr. Art. 10.3)
(Modification of limitation periods by the parties)

(1) The parties may modify the limitation periods.
(2) However they may not
(a) shorten the general limitation period to less than one year;
(b) shorten the maximum limitation period to less than four years;
(c) extend the maximum limitation period to more than fifteen years.

ARTICLE 12/4 (= U.Pr. Art. 10.4)
(New limitation period by acknowledgement)

(1) Where the obligor before the expiration of the general limitation period acknowledges the right of the obligee, a new general limitation period begins on the day after the day of the acknowledgement.
(2) The maximum limitation period does not begin to run again, but may be exceeded by the beginning of a new general limitation period under Art. 10.2(1).

ARTICLE 12/5 (= U.Pr. Art. 10.5)
(Suspension by judicial proceedings)

(1) The running of the limitation period is suspended
(a) when the obligee performs any act, by commencing judicial proceedings or in judicial proceedings already instituted, that is recognised by the law of the court as asserting the obligee’s right against the obligor;
(b) in the case of the obligor’s insolvency when the obligee has asserted its rights in the insolvency proceedings; or
(c) in the case of proceedings for dissolution of the entity which is the obligor when the obligee has asserted its rights in the dissolution proceedings.
(2) Suspension lasts until a final decision has been issued or until the proceedings have been otherwise terminated.

ARTICLE 12/6 (= U.Pr. Art. 10.6)
(Suspension by arbitral proceedings)

(1) The running of the limitation period is suspended when the obligee performs any act, by commencing arbitral proceedings or in arbitral proceedings already instituted, that is recognised by the law of the arbitral tribunal as asserting the obligee’s right against the obligor. In the absence of regulations for arbitral proceedings or provisions determining the exact date of the commencement of arbitral proceedings, the proceedings are deemed to commence on the date on which a request that the right in dispute should be adjudicated reaches the obligor.
(2) Suspension lasts until a binding decision has been issued or until the proceedings have been otherwise terminated.

ARTICLE 12/7 (comp. U.Pr. Art. 10.7)
(Alternative dispute resolution)

The provisions of Articles 12/5 and 12/6 apply with appropriate modifications to other proceedings whereby the parties request a third person to assist them in their attempt to reach an amicable settlement of their dispute.

ARTICLE 12/8 (= U.Pr. Art. 10.8)
(Suspension in case of force majeure, death or incapacity)

(1) Where the obligee has been prevented by an impediment that is beyond its control and that it could neither avoid nor overcome, from causing a limitation period to cease to run under the preceding articles, the general limitation period is suspended so as not to expire before one year after the relevant impediment has ceased to exist.
(2) Where the impediment consists of the incapacity or death of the obligee or obligor, suspension ceases when a representative for the incapacitated or deceased party or its estate has been appointed or a successor has inherited the respective party’s position. The additional one-year period under paragraph (1) applies accordingly.

ARTICLE 12/9 (= U.Pr. Art. 10.9)
(The effects of expiration of limitation period)

(1) The expiration of the limitation period does not extinguish the right.
(2) For the expiration of the limitation period to have effect, the obligor must assert it as a defence.
(3) A right may still be relied on as a defence even though the expiration of the limitation period for that right has been asserted.

ARTICLE 12/10 (= U.Pr. Art. 10.10)
(Right of set-off)

The obligee may exercise the right of set-off until the obligor has asserted the expiration of the limitation period.

ARTICLE 12/11 (= U.Pr. Art. 10.11)
(Restitution)

Where there has been performance in order to discharge an obligation, there is no right of restitution merely because the limitation period has expired.

CHAPTER 13 – PROTECTION OF CREDITORS AND THIRD PARTIES

SECTION 1: OBLIQUE ACTION

ARTICLE 13/1 (new)
(Exercise of the rights belonging to the obligor)

An obligee whose claim is ascertained as to its existence and as to its amount and is due may exercise the rights and actions belonging to the obligor, in the obligor’s name, where the obligor refuses or neglects to exercise them to the prejudice of the obligee.
However, it may not exercise rights and actions which are strictly personal to the obligor.

ARTICLE 13/2 (new)
(Conditions)

It is not necessary for the claim to be ascertained as to its amount and to be due at the time the action is instituted, but it is necessary that it be so at the time judgment is rendered.

ARTICLE 13/3 (new)
(Defences)

The person against whom an oblique action is brought may set up against the obligee all the defences he could have set up against his own obligee.

ARTICLE 13/4 (new)
(Benefit of the action)

Property recovered by an obligee in the name of the obligor falls into the patrimony of the obligor and benefits all its obligees.

SECTION 2: PAULIAN ACTION

ARTICLE 13/5 (new)
(Fraudulent acts that cannot be set up against the obligee)

An obligee who suffers prejudice through a juridical act made by its obligor in fraud of its rights, in particular an act by which the obligor renders or seeks to render itself insolvent, or by which, being insolvent, it grants preference to another obligee may obtain a declaration that the act may not be set up against it.

SECTION 3: SIMULATION

ARTICLE 13/6 (new)
(Notion)

Simulation exists where the parties agree to express their true intent, not in an apparent contract, but in a secret contract, also called a counter letter.

ARTICLE 13/7 (new)
(Effects between the parties)

Between the parties, a counter letter prevails over an apparent contract.

ARTICLE 13/8 (new)
(Effects vis-à-vis third persons)

Third persons in good faith may, according to their interest, avail themselves of the apparent contract or the counter letter; however, where conflicts of interest arise between them, preference is given to the person who avails itself of the apparent contract.
Referring Principles
Trans-Lex Principle: I.1.1 - Good faith and fair dealing in international trade
Trans-Lex Principle: I.2.2 - Trade usages
Trans-Lex Principle: I.1.2 - Prohibition of inconsistent behavior
Trans-Lex Principle: II.1 - Prerequisites and effects of agency
Trans-Lex Principle: II.3 - Agent acting without or outside his authority
Trans-Lex Principle: II.4 - Agency by estoppel / apparent authority
Trans-Lex Principle: III.1 - Set-off
Trans-Lex Principle: IV.1.1 - Freedom of contract
Trans-Lex Principle: IV.1.2 - Sanctity of contracts
Trans-Lex Principle: IV.2.1 - Contractual consent
Trans-Lex Principle: IV.2.2 - Silence by offeree
Trans-Lex Principle: IV.2.4 - Lapse of an offer
Trans-Lex Principle: IV.2.6 - Modified Acceptance
Trans-Lex Principle: IV.2.7 - Writings in confirmation
Trans-Lex Principle: IV.3.1 - Scope of application; definition
Trans-Lex Principle: IV.3.3 - No surprising standard terms
Trans-Lex Principle: IV.3.4 - Conflicting terms; battle of forms
Trans-Lex Principle: IV.4.1 - Freedom of form
Trans-Lex Principle: IV.5.1 - Intentions of the parties
Trans-Lex Principle: IV.5.4 - Interpretation against the party that supplied the term
Trans-Lex Principle: IV.5.2 - Context-oriented interpretation
Trans-Lex Principle: IV.5.7 - Merger clauses
Trans-Lex Principle: IV.6.1 - Express and implied obligations
Trans-Lex Principle: IV.6.3 - Fixing of price by third party
Trans-Lex Principle: IV.6.4 - No contract to detriment of third party
Trans-Lex Principle: IV.6.5 - Best efforts undertakings
Trans-Lex Principle: IV.6.9 - Duty to notify / to cooperate
Trans-Lex Principle: IV.6.11 - Plurality of debtors
Trans-Lex Principle: IV.6.12 - Plurality of creditors
Trans-Lex Principle: IV.6.13 - Duty of confidentiality
Trans-Lex Principle: IV.7.1 - Invalidity of contract that violates good morals (boni mores)
Trans-Lex Principle: IV.7.3 - Right to avoid the contract for mistake in fact or law
Trans-Lex Principle: IV.7.4 - Right to avoid the contract for fraudulent misrepresentation
Trans-Lex Principle: IV.7.5 - Severability of contract provisions
Trans-Lex Principle: IV.8.1 - Principle of pre-contractual liability
Trans-Lex Principle: V.1.1 - Place of performance
Trans-Lex Principle: V.1.2 - Time of performance
Trans-Lex Principle: V.1.3 - Early performance
Trans-Lex Principle: V.1.5 - Costs of performance
Trans-Lex Principle: V.1.4 - Principle of simultaneous performance; right to withhold performance
Trans-Lex Principle: VI.1 - Termination of contract in case of fundamental non-performance
Trans-Lex Principle: VI.3 - Force majeure
Trans-Lex Principle: VI.4 - Promise to pay in case of non-performance
Trans-Lex Principle: VI.5 - Anticipatory breach
Trans-Lex Principle: VII.1 - Damages in case of non-performance
Trans-Lex Principle: VII.2 - Principle of foreseeability of loss
Trans-Lex Principle: VII.3.1 - Limits to claims for damages
Trans-Lex Principle: VII.3.2 - Calculation of damages
Trans-Lex Principle: VII.4 - Duty to mitigate
Trans-Lex Principle: VIII.1 - Definition
Trans-Lex Principle: VIII.2 - Legal consequences
Trans-Lex Principle: V.2.1 - Payment in currency of place of payment
Trans-Lex Principle: VII.6 - Duty to pay interest
Trans-Lex Principle: IX.1 - Basic rule
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