ODPOWIEDZIALNOŚĆ Z TYTUŁU NIEWYKONANIA ZOBOWIĄZANIA W ŚWIETLE ZASAD EUROPEJSKIEGO PRAWA KONTRAKTÓW ORAZ ZASAD MIĘDZYNARODOWYCH KONTRAKTÓW HANDLOWYCH
THE LIABILITY FOR NON-PERFORMANCE UNDER THE PRINCIPLES OF EUROPEAN CONTRACT LAW (PECL) AND THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL...

Summary/Abstract: A dozen or so years after the first appearance of the PECL and UNIDROIT Principles it is fair to say that they have been very well acknowledged, both in academic circles and in contractual practice. The numerous countries in Europe and all over the world have regarded them as a source of inspiration for their law reform projects. The model law is more commonly being relied on by lawyers and business as a guide in the drafting of commercial contracts and also, what should be emphasized with great contentment, by arbitrators and judges that resort more and more frequently to its provisions while deciding transnational commercial disputes. The remedies for non-performance make up the indispensable part of the model European (Chapter 8 and 9) and UNIDROIT Principles (Chapter 7) regulations. The non-performance, instead of damage, seems to be the most important legal feature of both model laws that identify also the circumstances under which a non-performance is excused. The contractual liability ought to be considered in the feasible widest way, as a responsibility for any lack of conformity with the contract of the received performance and the duty of the non-performing party to redress all consequences of improper performance or non-performance. This article will discuss certain issues concerning particular remedies an aggrieved party is entitled to in the case of the failure of the other party to perform an obligation under the contract. The discussion is conceived as an analysis of the content of the PECL and UNIDROIT Principles in comparison with one another and also with the remedies set out in the UN Vienna Convention on Contracts for the International Sale of Goods and the principal national legal systems. The structure of the presentation is threefold. The first, shortest section, will give a brief overview of the genesis of European and UNIDROIT model law, its role and functions in the modern commerce with special regard of rules relating to the liability for non-performance. The second section will analyze the meaning and interpretation of the notion of non-performance and the fundamental non-performance as key elements of the model system of remedies and third, the final section, will draw attention on particular remedies that aggrieved party may resort to. There are the claim for performance, price reduction, the contract termination (the right of avoidance) and the claim for damages and interest.

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