Breach of Contract + Remedies Content + Interpretation of Contracts

Question 1

What is the article defining what a non-performance is?

Answer 1

-Art. III-1:102 (3) DCFR

Question 2

Explain some examples of what non-performance can entail

Answer 2

• anything not in accordance of the terms of the obligation in the contract
  -quantity/ volume of that promised (less than agreed)
  -quality/features of the product (e.g: different colour, not up to par of the quality promised)
  -Time (e.g: late delivery of the goods)

Question 3

Which article encases the right to remedies for performance

Answer 3

Art. III-3:101(1) DCFR

Question 4

Outline the remedies for Non- Performance

Answer 4

-Specific Performance (Art. III-3:301)
-Termination (Art. III- 3:501 DCFR)
-Price Reduction (Art. III-3:601 DCFR)
-Damages (Art. III-3:701 ff. DCFR)

Question 5

Which article can specific performance be found

Answer 5

• Art. III-3:301

Question 6

Which article can termination be found in

Answer 6

-Art. III-3:501

Question 6

Which article can price reduction be found in

Answer 6

-Art. III-3:601

Question 6

Which article can damages be found in?

Answer 6

-Art. III 3:701

Question 7

Are remedies allowed to be used together (cumulatively)?

Answer 7

Yes ! If they suit each other
E.g: termination + damages
Specific performance + damages

Question 8

Which damages can be used cumulatively?

Answer 8

-termination + damages
-Specific performance + damages

Question 9

Are terms excluding termination allowed under the DCFR?

Answer 9

Yes

Question 10

Are terms limiting damages allowed under the DCFR?

Answer 10

Yes

Question 11

Are terms excluding the cumulation of remedies allowed under the DCFR?

Answer 11

Yes

Question 12

Is a term of a contract which tries to exclude or restrict liability to pay damages for personal injury caused allowed?

Answer 12

• No (art. III-3105)

Question 13

Where can the article on contractual exclusion/restriction of remedies be found?

Answer 13

-Art. III-3:105 DCFR

Question 14

When can a creditor invoke a remedy?

Answer 14

-Non-performance of debtor

 AND -They sent a notice of default to debtor (III-3:107)
  AND THEN
        Opportunity of debtor to cure the non-performance has passed (III-3:204)

      NB: Creditor has burden of proof

Question 15

Which article encases where the reasonable time for a cure of non-performance start

Answer 15

-Art. III-3:107(2)

Question 16

In which situations can a debtor’s nonj-performance be excused

Answer 16

• force majeure (Art. III-3:101 (2))

Question 17

Where is the article found for the debtor’s cure of non performance

Answer 17

-Art. III-3:202 DCFR

Question 18

What are the exceptions to the right of the debtor to have an opportunity to cure their non-performance?

Answer 18

-Art. III- 3:203
-failure to perform a contractual obligation within the time allowed for performance originally=fundamental non-performance
-C has reason to believe that the debtor will be unable to cure the non-performance within a reasonable amount of time
-a cure of nonperformance would be inappropriate given the situation

Question 19

Where can the article on the exceptions for the opportunity to cure be found

Answer 19

-Art. III-3:203

Question 20

What are the facts of the Hochster v. de la Tour case?

Answer 20

-Hochster had a contract with De la Tour to be his courier during Euro trip
-but before they leave for the trip
-De la Tour says that Hochster is no longer needed
-Hochster sues De La Tour

Question 21

What was the main question of law in the Hochster v. de la Tour case?

Answer 21

Can you get damages before contract/ obligation is due?
-Judgment: Yes (“breach of an implied contract”)
-Possibility to bring a lawsuit before the contract was due?
- Judgment: Yes

Question 22

Explain the facts of the Hong Kong Shipping v. Kawasaki Kisen Kaisha case

Answer 22

The ship was delivered in an unseaworthy condition due to various issues: old engines requiring constant maintenance, inadequately trained and inefficient staff, and multiple repairs needed both during the journey and at the destination. It took 18 weeks to make the vessel seaworthy.

Question 23

Explain the facts of the Machine Peeling Artichokes case

Answer 23

The plaintiff supplied a machine for peeling artichokes to the defendant, a railway company. The defendant’s delay resulted in consequential damages.

Question 24

Explain the judgment of the Hong Kong Shipping v. Kawasaki Kisen Kaisha case

Answer 24

NO termination; Damages instead.

Seaworthiness and maintenance clauses ≠ current conditions
Delay = termination only if it frustrates the contract
18 weeks or 2 years = not a big deal! (“No substantial deviation”)

Question 25

Explain the judgment of the Machine Peeling Artichokes

Answer 25

The judgment stated that consequential damages were not foreseeable. According to the law, a debtor is obligated to pay damages that were either anticipated or reasonably foreseeable at the time the contract was made.

Question 26

Explain the facts of the Bad tempered bear case

Answer 26

A visitor at the zoo fell against a barrier designed to keep visitors at a safe distance from a bear cage, causing the barrier to collapse. As a result, the visitor was bitten by a bear and subsequently sued the zoo.

Question 27

Explain the judgment of the Bad-tempered Bear case

Answer 27

“A debtor whose non-performance has caused injury to the creditor should be liable in full for her injuries unless he is exonerated on the grounds of force majeure¡ or unless she contributed to her own injury through her own fault”

Damages can only be reduced:
In case of force majeure
If victim contributed to her own injury through her own fault (contributory negligence)