THE LIMITS OF THE DUTY TO PERFORM IN THE PRINCIPLES OF EUROPEAN CONTRACT LAW

The Principles of European Contract Law (PECL) contain two Articles limiting the duty to perform if performance has become more burdensome. On the one hand, Article 6:111 PECL, 'Change of Circumstances', is based on the idea of a clausula rebus sic stantibus and may lead to an adaptation of the contract by the court. On the other hand, it is Article 8:108 PECL, 'Excuse Due to an Impediment', excusing non-performance without giving the court the power to adapt the contract. This article analyses the scope of the provisions and their relationship critically, and investigates whether such a dichotomy, i.e. two rules limiting the duty to perform with probably different results, is desirable in a future European private law. The author takes a comparative approach by looking at the sole concept of frustration in English and Scots Law on the one hand and a similar division in German law on the other.

A. Introduction

B. Article 8:108: 'Excuse Due to an Impediment'

B.I Prerequisites

B.II Results

B.III English law: Frustration

B.IV German law: Impossibility

C. Article 6:111: 'Change of Circumstances'

C.I Prerequisites

C.II Results

C.III English law: Frustration again

C.IV German law: Störung der Geschäftsgrundlage and impossibility

D. The relationship between Article 6:111 and Article 8:108 PECL

E. Conclusion

Notes

Bibliography