The effect of a change of circumstances on the binding force of contracts. Comparative perspectives
PhD student: Dr R.A. Momberg Uribe
Promotor: Prof E.H. Hondius
Duration: 15/2/2008 - 14/8/2011
PhD defence: Utrecht, 27/5/2011
With the methods of comparative law, the research will study the main topic of the effect of supervening changes in circumstances on the binding force of contracts, in relation with the Western major legal systems and regarding not only European Jurisdictions but also American Common Law and Latin American Civil Law Jurisdictions. The research project will also study three modern sets of principles: the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law (PECL) and the Draft Common Frame of Reference (DCFR). The United Nations Convention on Contracts for the International Sale of goods will be also considered. Moreover, regarding its practical importance, the adjustment of the contract and allocation of risks by the parties also will be examined. The old principle of the law of contract pacta sunt servanda provides a starting point to the analysis of the question. This principle implies the binding force of the contractual obligations, except when physically impossible. In other words, a person who has once assumed contractual liability cannot escape it on the ground that he has miscalculated the future. Pacta sunt servanda seems to be a principle accepted by all developed legal systems, in the sense that contractual obligations validly concluded must be fulfilled, but equally a exception has to been made in the case that the contract is rendered impossible to perform, has become deprived of its commercial purpose by an event not due to the act or fault of either party or finally, altered circumstances have placed a heavy burden on the debtor or the creditor. Furthermore, frustration, impossibility or force majeure and the situation in which the performance of the contract has become more much difficult (e.g. hardship, impracticability, imprvision, among other concepts) are closely interconnected. Therefore, this research project will focus on circumstances, prerequisites and legal solutions related with the cases which render the performance of the contract impossible, those which render it much more difficult and those which frustrate the purpose of the transaction. The expected outcome of the project is to state a critical comparison between the examined legal families, ending up with conclusions about the proper policy for the law to adopt, with the aims to aid the national legislator, serve as a tool of construction and interpretation of national and international law, and contribute to the unification of law. The research method will be basically a literature-based research, including analysis and study of primary (cases, statutes, regulations, or decisions of administrative bodies) and secondary sources (law review articles, scholarly treatises, bar journals, encyclopaedias and on-line sources among others).