Breach of contract

Question 1

how can you breach a contract?

Answer 1

if there is non-performance

Question 2

possible causes of non-performance

Answer 2

no performance at all
delayed performance
defective performance
partial performance

Question 3

how can liabilities can be divided between parties

Answer 3

extended, limited, excluded

Question 4

main remedies of the obligee/ creditor

Answer 4

1. damages
2. equitable remedies- termination, specific performance

Question 5

damages

Answer 5

1. is there a breach of contract?
2. is there damage
3. attributability
4. notice
5. causation/ foreseeability
6. contributory negligence/ the duty to mitigate

Question 6

what are damages

Answer 6

a remedy for the breach of the contract. the purpose is to compensate the injured party for loss or damage arising from the breach.
main rule: monetary compensation. the causation determines the amount

Question 7

attributability in civil law

Answer 7

breach must be attributable to the promisor

Question 8

attributability in English law

Answer 8

strict liability= no requirement of attributability

Question 9

mistakes arising from the third person used by the obligor

Answer 9

the obligor is liable for mistakes made by persons used by him or her to execute the agreement

Question 10

mistakes arising from the use of goods

Answer 10

by the obligor are also for his account

Question 11

attributability in German law

Answer 11

The obligee may demand damages for the damage caused thereby. This does not apply if the obligor is not responsible for the breach of duty

Question 12

attributability in French law

Answer 12

The debtor is ordered to pay damages unless he shows that his performance was prevented by force majeure.

Question 13

Force majeure (civil law) 2 possibilites

Answer 13

performance still possible- the obligee can still demand performance, so the obligation can be postponed
performance impossible- the obligee can terminate immediately the agreement

Question 14

force majeure French Law

Answer 14

renegotiate the contract or terminate or ask the court by common agreement to adapt it

Question 15

force majeure German Law

Answer 15

adaptation of the contract or revocation

Question 16

Frustration (English law)

Answer 16

automatically results in the discharge of all parties from their obligations.
1. Destruction or unavailability of the subject matter
2. Death or illness of one of the parties
3. Supervening illegality
4. Government intervention
5. The event on which the contract is based fails to occur
6. Delay in performance (caused by supervening event!)

Question 17

notice

Answer 17

civil law- a notice is required; no notice if the promisor refuses to perform
English law- no notice

Question 18

causation/ foreseeability

Answer 18

a promisor is bound only to damages which were foreseen or could have been foreseeable at the time of conclusion of the contract
EXCEPT where non-performance was due to a gross and dishonest fault

Question 19

contributory negligence/ duty to mitigate

Answer 19

the injured party has to mitigate any losses
contributory negligence may reduce the amount of damages

Question 20

termination

Answer 20

if the promisor does not perform, the promisee can terminate the contract.
damage can be claimed

Question 21

termination and agreed remedies

Answer 21

1. agreed damages:
   - liquidated clauses= calculated then, all countries
   - penalty clauses= already stated in the contract, only civil law (in extreme cases the court may reduce the amount)
2. termination clauses= states when it is allowed and what consequences there will be if you terminate the contract

Question 22

specific performance- civil law

Answer 22

1. you claim specific performance
2. damages

not granted when:
- it is impossible
- disproportion between expense and effort needed to perform on the one hand, and the interest that the promisee has in the performance on the other
- personal services

Question 23

specific performance- common law

Answer 23

1. damages
2. specific performance

claim when:
- it is at the court’s discretion
- damages are inadequate:
- unique item
- cannot buy substitute performance on the market
- makes a more just result