Ch.9 Assignment of rights, transfer of obligations, assignment of contracts, s.2: Transfer of obligations, Art.9.2.5

2015 ◽  
Author(s):  
Mazza Francesca
Keyword(s):  
Burden Of Proof ◽  
Default Rule ◽  
Joint And Several Liability ◽  
Rights Transfer

This commentary analyses Article 9.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the circumstances under which the original obligor is discharged. According to Art 9.2.5, the obligee may discharge the original obligor or retain the original obligor as an obligor in case the new obligor does not perform properly. Otherwise the original obligor and the new obligor are jointly and severally liable. As a default rule, Art 9.2.5(3), which provides for the joint and several liability of the original and new obligor, applies unless the obligee has agreed to discharge the original obligor by virtue of Art 9.2.5(1) or (2). Art 9.2.5(3) stipulates that the obligee is not required to express a choice. If it remains silent, the default rule of joint and several liability applies. The burden of proof lies with the original obligor to provide persuasive evidence that it has been fully or partially discharged.

Ch.9 Assignment of rights, transfer of obligations, assignment of contracts, s.3: Assignment of contracts, Art.9.3.5

2015 ◽  
Author(s):  
Mazza Francesca
Keyword(s):  
The Other ◽  
Default Rule ◽  
Joint And Several Liability ◽  
Rights Transfer

This commentary analyses Article 9.3.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the circumstances under which the assignor (that is, the original obligor with respect to the transferred obligations) is discharged. As a default rule, Art 9.3.5(3) applies, unless the other party has agreed to discharge the assignor under Art 9.3.5(1) or (2). Under Art 9.3.5(3), the assignor and the assignee are jointly and severally liable. Transfer of contracts may involve the transfer of a number of obligations. In this event, the other party may choose to exercise different options in respect of the different obligations. Art 9.3.5(3) does not require the other party to express a choice. If it remains silent, the default rule of joint and several liability applies.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.8

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Default Rule ◽  
Agency Relationship ◽  
The Third ◽  
Delegation Of Authority ◽  
The Third Party

This commentary focuses on Article 2.2.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning sub-agency. In most countries, the default rule is that the agent is not permitted to delegate its authority. This rule is generally based on the confidential nature of the agency relationship. Art 2.2.8 stipulates that an agent has implied authority to appoint a sub-agent to perform acts which it is not reasonable to expect the agent to perform itself. This commentary discusses the requirements of sub-agency, the consequences of delegation of authority, cases where the sub-agent affects the legal relations of the third party, and burden of proof relating to sub-agency.

Ch.6 Performance, s.1: Performance in general, Art.6.1.6

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Default Rule ◽  
Contractual Obligation ◽  
Performance Problems ◽  
Legal Consequences ◽  
Wrong Place

This commentary analyses Article 6.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the place of performance of a contractual obligation. The place of performance is the place at which the obligor has to perform the acts necessary to honour its obligation. According to Art 6.1.6, monetary obligations must be discharged at the place of business of the obligee and non-monetary obligations at the place of business of the obligor. This commentary discusses the relevance of place of performance, problems related to interpretation of stipulations regarding place of performance, default rule for determining place of performance, place of performance for non-performance and restitution claims, the notion of place of business and consequences of a change in place of business or a change of parties, legal consequences related to performance at a wrong place, and burden of proof relating to place of performance.

Ch.9 Assignment of rights, transfer of obligations, assignment of contracts, s.1: Assignment of rights, Art.9.1.7

2015 ◽  
Author(s):  
Mazza Francesca
Keyword(s):  
Burden Of Proof ◽  
Third Parties ◽  
Legal Systems ◽  
Personal Character ◽  
Mandatory Rules ◽  
Formal Requirements ◽  
Domestic Law ◽  
Rights Transfer

This commentary analyses Article 9.1.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning a right assigned by mere agreement between the assignor and the assignee. Art 9.1.7 stipulates that a right is assigned by mere agreement between the assignor and the assignee, without notice to the obligor. The consent of the obligor is not required unless the obligation in the circumstances is of an essentially personal character. The fact that an agreement in writing is not required is implied by the reference to a ‘mere’ agreement. However, some formal requirements may apply due to mandatory rules of the applicable domestic law which apply under Art 1.4. Some legal systems distinguish between the effectiveness of the assignment of a right as between the assignor and the assignee (inter partes) and as towards third parties, such as the obligor or creditors (erga omnes). This commentary also considers the burden of proof relating to the essentially personal character of the obligation.

Ch.11 Plurality of obligors and of obligees, s.1: Plurality of Obligors, Art.11.1.9

2015 ◽  
Author(s):  
Meier Sonja
Keyword(s):  
Burden Of Proof ◽  
The Other ◽  
Default Rule ◽  
Legal Systems

This commentary analyses Article 11.1.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the apportionment of shares among joint and several obligors. In a contractual setting, joint and several obligations arise from a common commitment of all the obligors towards the obligee or from separate commitments by each obligor acting in the knowledge of the other commitments. In general, it is not for the obligee to decide which of the obligors in the end has to bear the burden of the performance. Accordingly, all legal systems provide for an apportionment among the joint and several obligors under which the obligor which has performed to the obligee can claim contribution from its co-obligors. Under Art 11.1.9, joint and several obligors are bound in equal shares, unless the circumstances indicate otherwise. Art 11.1.9 is a default rule. The obligors are bound in equal shares only if the agreement between the obligors and the circumstances do not reveal a different measure. The party asserting a different measure of apportionment bears the burden of proof.

Ch.6 Performance, s.1: Performance in general, Art.6.1.1

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Default Rule ◽  
Reasonable Time ◽  
Contractual Obligation ◽  
Performance Time ◽  
Contractual Obligations

This commentary focuses on Article 6.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the time of performing a contractual obligation. Art 6.1.1 determines when a party has to perform its contractual obligations. This is the time, or within the period of time, explicitly or impliedly stipulated in the contract within a reasonable time after the conclusion of the contract. This commentary discusses the notion of timely performance and the consequences of untimely performance, time of performance fixed by the parties, time of performance according to the default rule, obligee's failure to co-operate in regard to timely performance, changes in time of performance, and the burden of proof relating to time of performance.

Ch.9 Assignment of rights, transfer of obligations, assignment of contracts, s.1: Assignment of rights, Art.9.1.13

2015 ◽  
Author(s):  
Mazza Francesca
Keyword(s):  
Burden Of Proof ◽  
Scope Of Application ◽  
Rights Transfer

This commentary analyses Article 9.1.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences and rights of set-off. According to Art 9.1.13, the obligor may assert against the assignee all defences that the obligor could assert against the assignor. The obligor may exercise against the assignee any right of set-off available to the obligor against the assignor up to the time notice of assignment of a right was received. The purpose of this provision is to protect the obligor's interests. This commentary discusses the notion of defences with respect to set-off, the time at which the defences come into existence, procedural defences, waiver of defences, remedy available to the assignee. It also considers the scope of application and rationale of Art 9.1.13 regarding rights of set-off, including the requirements, burden of proof, and consequences in the case of notice of set-off.

Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.7

2015 ◽  
Author(s):  
Pichonnaz Pascal
Keyword(s):  
Burden Of Proof ◽  
Default Rule ◽  
Force Majeure ◽  
The Right ◽  
The Relationship

This commentary analyses Article 7.1.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning force majeure. According to Art 7.1.7, force majeure can be broadly defined as ‘the result of an impediment beyond a party's control and which that party could not reasonably have taken into account at the time of conclusion of the contract, or have avoided or overcome it or avoided or overcome its consequences on the ability to perform’. In other words, when non-performance is triggered by an event which could be qualified as force majeure, the obligor is no longer liable for damages. However, force majeure does not remove the ‘non-performance’ as such; as a consequence, the aggrieved party still has the right to terminate the stranded contract. This commentary discusses the relationship between the application of force majeure clauses and contractual practice, Art 7.1.7(1) as a default rule, consequences of force majeure, and burden of proof relating to force majeure.

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