Ch.5 Content, third party rights and conditions, s.1: Content, Art.5.1.9
This commentary focuses on Article 5.1.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning release of a contractual right by agreement. Under Art 5.1.9, an obligee may release its right by agreement with the obligor. An offer to release a right gratuitously shall be deemed accepted if the obligor does not reject the offer without delay after having become aware of it. The terminology used in Art 5.1.9 was chosen with particular care. The term ‘release’ was preferred over the concept of ‘waiver’ that has no agreed meaning between the common law systems. This commentary argues that the use of ‘release’ is somewhat problematic from the perspective of U.S. contract law. It also discusses the agreement in terms of offer and acceptance, the legal consequences of a release by agreement, and the burden of proof relating to release of a contractual right by agreement.