Breach of Contract + Remedies Content + Interpretation of Contracts Flashcards
What is the article defining what a non-performance is?
-Art. III-1:102 (3) DCFR
Explain some examples of what non-performance can entail
- 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)
Which article encases the right to remedies for performance
Art. III-3:101(1) DCFR
Outline the remedies for Non- Performance
-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)
Which article can specific performance be found
- Art. III-3:301
Which article can termination be found in
-Art. III-3:501
Which article can price reduction be found in
-Art. III-3:601
Which article can damages be found in?
-Art. III 3:701
Are remedies allowed to be used together (cumulatively)?
Yes ! If they suit each other
E.g: termination + damages
Specific performance + damages
Which damages can be used cumulatively?
-termination + damages
-Specific performance + damages
Are terms excluding termination allowed under the DCFR?
Yes
Are terms limiting damages allowed under the DCFR?
Yes
Are terms excluding the cumulation of remedies allowed under the DCFR?
Yes
Is a term of a contract which tries to exclude or restrict liability to pay damages for personal injury caused allowed?
- No (art. III-3105)
Where can the article on contractual exclusion/restriction of remedies be found?
-Art. III-3:105 DCFR
When can a creditor invoke a remedy?
-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
Which article encases where the reasonable time for a cure of non-performance start
-Art. III-3:107(2)
In which situations can a debtor’s nonj-performance be excused
- force majeure (Art. III-3:101 (2))
Where is the article found for the debtor’s cure of non performance
-Art. III-3:202 DCFR
What are the exceptions to the right of the debtor to have an opportunity to cure their non-performance?
-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
Where can the article on the exceptions for the opportunity to cure be found
-Art. III-3:203
What are the facts of the Hochster v. de la Tour case?
-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
What was the main question of law in the Hochster v. de la Tour case?
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
Explain the facts of the Hong Kong Shipping v. Kawasaki Kisen Kaisha case
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.
Explain the facts of the Machine Peeling Artichokes case
The plaintiff supplied a machine for peeling artichokes to the defendant, a railway company. The defendant’s delay resulted in consequential damages.
Explain the judgment of the Hong Kong Shipping v. Kawasaki Kisen Kaisha case
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”)
Explain the judgment of the Machine Peeling Artichokes
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.
Explain the facts of the Bad tempered bear case
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.
Explain the judgment of the Bad-tempered Bear case
“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)
