Částečné odstoupení od smlouvy
Partial Avoidance of Contract

Summary/Abstract: This article deals with the issue of partial avoidance. For the sake of clarity, the author places the discussion of individual theoretical issues in the context of an actual case decided by the Supreme Court. First of all, the article examines the definition of partial avoidance and discusses its problematic aspects. The unilateral character of the avoidance is brought into focus as well as the related problem of debtor’s legitimate interest in the indivisibility of the obligation and the issue of the economy of the partial withdrawal. Furthermore, the article analyses the Czech law on partial avoidance and compares it in general terms with the regulation in the BGB, ABGB and CISG. While the Czech Civil Code enables partial avoidance only in specific situations specified in § 2004(2) and (3), foreign regulations allow for partial avoidance in a wider range of cases (e.g. in cases of partially defective performance or in cases where no performance occurred at all). However, most attention is dedicated to the prerequisites for partial avoidance. The paper considers five basic prerequisites, which are discussed in more detail in the text. Probably the most problematic prerequisite is the issue of the divisibility of the obligation. The author is inclined to construe the divisibility of the obligation based on inspiration provided by concepts within the context of the BGB and the CISG. In line with Austrian case law, the author also concludes that the inference regarding the divisibility of the obligation cannot be incongruous with the (legitimate) interests of the debtor. Lastly, attention is also paid to the effects of partial avoidance.

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