行契精類行年年行立律參理良理年

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1 行契精類行年年行立律參理良理年

2 契 A Comparative Study on the Supervening Hardship in Contract Law 契 2004 年契 2004 UNIDROIT Principles of International Commercial Contracts 2004 六契履行 Art 更 Hardship 契說 1 Art 契履履行列不 Art 更履履契 a 不利契 b 不利契理見 c 不利 d 不利 1 es2004-e.pdf 2007 年

3 Art 力 1 不利 2 不不利履行 3 理 4 列理 a 契 b 契復契狀契 2004 UNIDROIT Principles of International Commercial Contracts 2004 SECTION 2: HARDSHIP ARTICLE (Contract to be observed) Art 契 Where the performance of a contract 履 becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions on hardship. 履行列不 ARTICLE (Definition of hardship) There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either Art 更履履 because the cost of a party s 契 performance has increased or because the value of the performance a party receives has diminished, and (a) the events occur or become known a 不利 to the disadvantaged party after the 契 conclusion of the contract; (b) the events could not reasonably b 不利 have been taken into account by the 契理見 disadvantaged party at the time of the conclusion of the contract; (c) the events are beyond the control of the disadvantaged party; and c 不利 (d) the risk of the events was not d 2

4 ARTICLE assumed by the disadvantaged party. (Effects of hardship) (1) In case of hardship the disadvantaged party is entitled to request renegotiations. The request shall be made without undue delay and shall indicate the grounds on which it is based. (2) The request for renegotiation does not in itself entitle the disadvantaged party to withhold performance. (3) Upon failure to reach agreement within a reasonable time either party may resort to the court. (4) If the court finds hardship it may, if reasonable, (a) terminate the contract at a date and on terms to be fixed, or (b) adapt the contract with a view to restoring its equilibrium. 不利 Art 力 1 不利 2 不不利履行 3 理 4 列理 a 契 b 契復契狀 2 Art 契履履行列不履行履行列 Art 更履履契 a 不利履履了 a 不利年

5 Art 契 b 不利契理見 c 不利 d 不利力 1 不利 2 不不利履行 3 理 4 列理 a 契 b 契復契狀立 b 不利立不理見 c 不不利 d 不不利 1 若不利不說理 2 不不利履 3 理不 4 理 a b 復 2 契 2004 六 Art 契 Art 說 Art 契履履行列不契立 3 契契不履行 3 Art. 1.3 UNIDROIT Principles 2004 契立契力契契 (Binding character of contract) : A contract validly entered into is binding upon the parties. It can only be modified or terminated in accordance with its terms or by agreement or as otherwise provided in these Principles. 4

6 履行契履行利不契力契履行例 1990 年 1 立契兩年紐料不理行履行契履行 4 羅契例契 2004 Art Art 更履履契 a 不利契 b 不利契理見 c 不利 d 不利來識易契 hardship clauses 5 Art 列說 a 更契更契 the equilibrium of the contract 契 fundamentally 例 1989 年 A B B 1990 年年 11 A B 不兩兩 1990 年 10 3 X A 6 兩契立兩 A 契兩契履履履履行金履例料度令更履履行論 4 Unidroit Principles of International Commercial Contracts 2004, p Unidroit Principles of International Commercial Contracts 2004, p Unidroit Principles of International Commercial Contracts 2004, p184. 5

7 金金履烈契契履行不令不履量不契履行不 7 b 不利契契不利契立契不利列量不 c 不利契理見不利契理見見不例 A 年 X B 契若兩年暴 A 見不契更更契立若契更度例 A B 立契契 X 契立 X X 80 見 d 不利 Art C 不利 e 不利契不利不契不契論若契易不 7 Unidroit Principles of International Commercial Contracts 2004, p185. 6

8 例 A 契暴暴 A 不契不說 a 契履行契履行履行契利若履行履行例 A 理 B 契年理兩年 X B 來履行兩年 b 契類契契契履行 c 不力 force majeure 契不力履行契 2004 不履行不履行 Art 契 2004 不力例不力不力 8 Art UNIDROIT Principles 2004 不力 1 不履行理見 2 參契履行不力 3 不履行履力不履行理 4 不契履行利利 (Force majeure):(1) Non-performance by a party is excused if that party proves that the nonperformance was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. (2) When the impediment is only temporary, the excuse shall have effect for such period as is reasonable having regard to the effect of the impediment on the performance of the contract. (3) The party who fails to perform must give notice to the other party of the impediment and its effect on its ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, it is liable for damages resulting from such nonreceipt. (4) Nothing in this article prevents a party from exercising a right to terminate the contract or to withhold performance or request interest on money due. 7

9 不履行契契力 d 契契契更易 3 力力契 2004 力 Art 說 a 契契狀力 Art 不利不利利利不利利契更狀例 Y A B 立契 Y Y 不暴 A B 契契更若契契數不不例例若料契數 A 不履 Y 令理 A 契不利利利行行立 8

10 更若利不契 9 不利易理理理易見不說理力利不契不利行 10 the general principle of good faith 力 11 the duty of cooperation 不利不略不切 b 不契履行 Art Art 不利不履行契理例濫例履行例 A B 契 X 契契 A 履 A 行履行契 c 若不理 Art 理 9 Unidroit Principles of International Commercial Contracts 2004, p Art. 1.7 UNIDROIT Principles 2004 易 1 易行易 2 不 (Good faith and fair dealing) (1) Each party must act in accordance with good faith and fair dealing in international trade. (2) The parties may not exclude or limit this duty. 11 Art UNIDROIT Principles 2004 力履行理契力 (Co-operation between the parties) Each party shall cooperate with the other party when such co-operation may reasonably be expected for the performance of that party s obligations. 9

11 不利理 d Art 列理 a 契 b 契復契狀列契契不履行履行不履行契力不 12 契契復契狀契契不更量 12 契 2004 不履行契不履行契 termination 不履行契力 Art Art 說不履行 termination 契力不 termination 契契力履行不不履行 termination 理不契 Art 復狀 Restitution 力契復狀領契履行契復狀力契不履行類契念例類力見契 2004 契不履行契不契 2004 不履行 termination 不念理說 Art UNIDROIT Principles 2004 契力 1 契履行來領 2 契不不履行 3 契不契契行 (Effects of termination in general)(1) Termination of the contract releases both parties from their obligation to effect and to receive future performance. (2) Termination does not preclude a claim for damages for non-performance. (3) Termination does not affect any provision in the contract for the settlement of disputes or any other term of the contract which is to operate even after termination. Art UNIDROIT Principles 2004 復狀 1 契復狀領不不 2 契履行契復狀力契 (Restitution)(1) On termination of the contract either party may claim restitution of whatever it has supplied, provided that such party concurrently makes restitution of whatever it has received. If restitution in kind is not possible or appropriate allowance should be made in money whenever reasonable. 10

12 度領履行利契利 Art 契理不契契例 A X B 契 A B 年契兩年 X 令 X 料 B 立 A 契 A B 契歷了 B B 契契若 B 不契 B A 契契 principles of European contract law Ole Lando 契 1998 年 2002 年更 Change of Circumstances 六契力 Art: 契更六契契契履行 Ole Lando Hugh Beale 契 14 說 1 更 Art: 更 1 論履行履行履履行 2 若更履度契契 a 更契 b 更契理見 c 契更 13 契 2004 六契履行契 14 Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p

13 3 理 a 契 b 契更利 Article: Change of Circumstances (1) A party is bound to fulfil its obligations even if performance has become more onerous, whether because the cost of performance has increased or because the value of the performance it receives has diminished. (2) If, however, performance of the contract becomes excessively onerous because of a change of circumstances, the parties are bound to enter into negotiations with a view to adapting the contract or terminating it, provided that: (a) the change of circumstances occurred after the time of conclusion of the contract, (b) the possibility of a change of circumstances was not one which could reasonably have been taken into account at the time of conclusion of the contract, and (c) the risk of the change of circumstances is not one which, according to the contract, the party affected should be required to bear. (3) If the parties fail to reach agreement within a reasonable period, the court may: (a) terminate the contract at a date and on terms to be determined by the court; or (b) adapt the contract in order to distribute 更論履行履行履履行若更履度契契 a 更契 b 更契理見 c 契更理 a 契 b 契 12

14 between the parties in a just and equitable manner the losses and gains resulting from the change of circumstances. In either case, the court may award damages for the loss suffered through a party refusing to negotiate or breaking off negotiations contrary to good faith and fair dealing. 更利 2 更契更 Art: Art: 契 Art: 更說不契 2004 羅契更 pacta sunt servanda clausula rebus sic stantibus 15 Art: 論履行履行履履行立契契例更例更理不見契不更契不更律契契力 16 識契 2004 理更 Art: 若更履度契契 a 更契 b 更契理見 c 契更更契契列 a 度履更度 excessively 不更 15 Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p. xxxvii. 16 Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p

15 契不 disequilibrium 不力 17 度履 Ole Lando Hugh Beale 說履例例數不見暴不更履不例契 2004 契履履不度不更度理例說契年金便來不便不 18 理說例不度度不更 19 度契 2004 契 fundamentally 異契度履契 2004 契不不 b 更契契 2004 更 Art: a 更契契列更理契 2004 說契更理論 Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p 見更不更度度數論更參見論 2004 年更契契 Art: Art: 契

16 c 更契理見更契理見契理見若不更 d 更更更論契契例不更契 2004 契 2004 Art 契不利不履行契契 2004 說更契履行契履行更更契更立更契契更不 impossibility 21 不契 2004 不力不說契 Art: 更契 2004 Art Art 異異 3 更力更契 Art: 契契 Art: 理 a 契 b 契更利更 Art. 3.5 Art Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p 契不 Art:

17 力說 a 契契不行 22 理更契念論例惡 Art: b 行 c Art: 理 a 契 b 契更利列契力契契復契狀不見契契契不契契不立契 23 例 A B 力料暴更不契不 A 契力契契更復契狀 22 Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p Ole Lando and Hugh Beale, Principles of European Contract Law Part I and II, 2000, p

18 不契 2004 見 d 不契履行契說契更契契力不不契力力不契更力契 2004 見契更識契 2004 契契 2004 unidroit principles of international commercial contracts 2004 SECTION 2: HARDSHIP ARTICLE (Contract to be observed) Where the performance of a contract becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions on hardship. ARTICLE (Definition of hardship) There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party s performance has increased or because the value of the performance a party receives has diminished, and (a) the events occur or become known to the disadvantaged party after the conclusion of the contract; (b) the events could not reasonably have been taken into account by the 契 principles of European contract law Art: Change of Circumstances (1) A party is bound to fulfil its obligations even if performance has become more onerous, whether because the cost of performance has increased or because the value of the performance it receives has diminished. (2) If, however, performance of the contract becomes excessively onerous because of a change of circumstances, the parties are bound to enter into negotiations with a view to adapting the contract or terminating it, provided that: (a) the change of circumstances occurred after the time of conclusion of the contract, (b) the possibility of a change of circumstances was not one which 17

19 disadvantagedparty at the time of the conclusion of the contract; (c) the events are beyond the control of the disadvantaged party; and (d) the risk of the events was not assumed by the disadvantaged party. ARTICLE (Effects of hardship) (1) In case of hardship the disadvantaged party is entitled to request renegotiations. The request shall be made without undue delay and shall indicate the grounds on which it is based. (2) The request for renegotiation does not in itself entitle the disadvantaged party to withhold performance. (3) Upon failure to reach agreement within a reasonable time either party may resort to the court. (4) If the court finds hardship it may, if reasonable, (a) terminate the contract at a date and on terms to be fixed, or (b) adapt the contract with a view to restoring its equilibrium. could reasonably have been taken into account at the time of conclusion of the contract, and (c) the risk of the change of circumstances is not one which, according to the contract, the party affected should be required to bear. Article 6.111(2) (3) If the parties fail to reach agreement within a reasonable period, the court may: (a) terminate the contract at a date and on terms to be determined by the court; or (b) adapt the contract in order to distribute between the parties in a just and equitable manner the losses and gains resulting from the change of circumstances. In either case, the court may award damages for the loss suffered through a party refusing to negotiate or breaking off negotiations contrary to good faith and fair dealing. 18

20 易來不律領裡契歷不契契契契度行劣更論更參契 2004 契參更律念若念識律不契 2004 寧了契契契 2004 Art 兩契履履更不不參契 2004 契念契論論識契來論契契不來來力省更力來略契 2004 契契若行寧度勞力不利不利論論見念不更更量參契 2004 契不見 19

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行契精類行年年行立律參理良理年