unidroit principles of international commercial contracts 2016

UNIDROIT PRINCIPLES OF INTERNATIONAL

COMMERCIAL CONTRACTS 2016

REAMBLE

(Purpose of the Principles)

These Principles set forth general rules for international commercial contracts.

They shall be applied when the parties have agreed that their contract be governed

by them.

(*)

They may be applied when the parties have agreed that their contract be governed by

general principles of law, the lex mercatoria or the like.

They may be applied when the parties have not chosen any law to govern their

contract.

They may be used to interpret or supplement international uniform law instruments.

They may be used to interpret or supplement domestic law.

They may serve as a model for national and international legislators.

CHAPTER 1 — GENERAL PROVISIONS

ARTICLE 1.1

(Freedom of contract)

The parties are free to enter into a contract and to determine its content.

RTICLE 1.2

(No form required)

Nothing in these Principles requires a contract, statement or any other act to be made

in or evidenced by a particular form. It may be proved by any means, including

witnesses.

RTICLE 1.3

(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.

RTICLE 1.4

(Mandatory rules)

Nothing in these Principles shall restrict the application of mandatory rules, whether

of national, international or supranational origin, which are applicable in accordance

with the relevant rules of private international law.

RTICLE 1.5

(Exclusion or modification by the parties)

The parties may exclude the application of these Principles or derogate from or vary

the effect of any of their provisions, except as otherwise provided in the Principles.

(*)

Parties wishing to provide that their agreement be governed by the Principles might use one of

the Model Clauses for the use of the U

NIDROIT Principles of International Commercial Contracts

(see http://www.unidroit.org/instruments/commercial-contracts/upicc-model-clauses).

UNIDROIT Principles 2016

ARTICLE 1.6

(Interpretation and supplementation of the Principles)

(1) In the interpretation of these Principles, regard is to be had to their

international character and to their purposes including the need to promote uniformity in

their application.

(2) Issues within the scope of these Principles but not expressly settled by them

are as far as possible to be settled in accordance with their underlying general principles.

RTICLE 1.7

(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.

RTICLE 1.8

(Inconsistent behaviour)

A party cannot act inconsistently with an understanding it has caused the other party

to have and upon which that other party reasonably has acted in reliance to its detriment.

RTICLE 1.9

(Usages and practices)

(1) The parties are bound by any usage to which they have agreed and by any

practices which they have established between themselves.

(2) The parties are bound by a usage that is widely known to and regularly

observed in international trade by parties in the particular trade concerned except where

the application of such a usage would be unreasonable.

RTICLE 1.10

(Notice)

(1) Where notice is required it may be given by any means appropriate to the

circumstances.

(2) A notice is effective when it reaches the person to whom it is given.

(3) For the purpose of paragraph (2) a notice “reaches” a person when given to

that person orally or delivered at that person’s place of business or mailing address.

(4) For the purpose of this Article “notice” includes a declaration, demand,

request or any other communication of intention.

RTICLE 1.11

(Definitions)

In these Principles

– “court” includes an arbitral tribunal;

– where a party has more than one place of business the relevant “place of

business” is that which has the closest relationship to the contract and its performance,

having regard to the circumstances known to or contemplated by the parties at any time

before or at the conclusion of the contract;

– “long-term contract” refers to a contract which is to be performed over a

period of time and which normally involves, to a varying degree, complexity of the

transaction and an ongoing relationship between the parties;

– “obligor” refers to the party who is to perform an obligation and “obligee”

refers to the party who is entitled to performance of that obligation;

– “writing” means any mode of communication that preserves a record of the

information contained therein and is capable of being reproduced in tangible form.

UNIDROIT Principles 2016

ARTICLE 1.12

(Computation of time set by parties)

(1) Official holidays or non-business days occurring during a period set by parties

for an act to be performed are included in calculating the period.

(2) However, if the last day of the period is an official holiday or a non-business

day at the place of business of the party to perform the act, the period is extended until

the first business day which follows, unless the circumstances indicate otherwise.

(3) The relevant time zone is that of the place of business of the party setting the

time, unless the circumstances indicate otherwise.

CHAPTER 2 — FORMATION AND AUTHORITY OF AGENTS

SECTION 1: FORMATION

RTICLE 2.1.1

(Manner of formation)

A contract may be concluded either by the acceptance of an offer or by conduct of

the parties that is sufficient to show agreement.

RTICLE 2.1.2

(Definition of offer)

A proposal for concluding a contract constitutes an offer if it is sufficiently definite

and indicates the intention of the offeror to be bound in case of acceptance.

RTICLE 2.1.3

(Withdrawal of offer)

(1) An offer becomes effective when it reaches the offeree.

(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches

the offeree before or at the same time as the offer.

RTICLE 2.1.4

(Revocation of offer)

(1) Until a contract is concluded an offer may be revoked if the revocation reaches

the offeree before it has dispatched an acceptance.

(2) However, an offer cannot be revoked

(a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that

it is irrevocable; or

(b) if it was reasonable for the offeree to rely on the offer as being irrevocable and

the offeree has acted in reliance on the offer.

RTICLE 2.1.5

(Rejection of offer)

An offer is terminated when a rejection reaches the offeror.

RTICLE 2.1.6

(Mode of acceptance)

(1) A statement made by or other conduct of the offeree indicating assent to an

offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.

(2) An acceptance of an offer becomes effective when the indication of assent

reaches the offeror.

(3) However, if, by virtue of the offer or as a result of practices which the parties

have established between themselves or of usage, the offeree may indicate assent by

UNIDROIT Principles 2016

performing an act without notice to the offeror, the acceptance is effective when the act

is performed.

RTICLE 2.1.7

(Time of acceptance)

An offer must be accepted within the time the offeror has fixed or, if no time is

fixed, within a reasonable time having regard to the circumstances, including the

rapidity of the means of communication employed by the offeror. An oral offer must be

accepted immediately unless the circumstances indicate otherwise.

RTICLE 2.1.8

(Acceptance within a fixed period of time)

A period of acceptance fixed by the offeror begins to run from the time that the offer

is dispatched. A time indicated in the offer is deemed to be the time of dispatch unless

the circumstances indicate otherwise.

RTICLE 2.1.9

(Late acceptance. Delay in transmission)

(1) A late acceptance is nevertheless effective as an acceptance if without undue

delay the offeror so informs the offeree or gives notice to that effect.

(2) If a communication containing a late acceptance shows that it has been sent in

such circumstances that if its transmission had been normal it would have reached the

offeror in due time, the late acceptance is effective as an acceptance unless, without

undue delay, the offeror informs the offeree that it considers the offer as having lapsed.

RTICLE 2.1.10

(Withdrawal of acceptance)

An acceptance may be withdrawn if the withdrawal reaches the offeror before or at

the same time as the acceptance would have become effective.

RTICLE 2.1.11

(Modified acceptance)

(1) A reply to an offer which purports to be an acceptance but contains additions,

limitations or other modifications is a rejection of the offer and constitutes a counter-of-

fer.

(2) However, a reply to an offer which purports to be an acceptance but contains

additional or different terms which do not materially alter the terms of the offer

constitutes an acceptance, unless the offeror, without undue delay, objects to the

discrepancy. If the offeror does not object, the terms of the contract are the terms of the

offer with the modifications contained in the acceptance.

RTICLE 2.1.12

(Writings in confirmation)

If a writing which is sent within a reasonable time after the conclusion of the

contract and which purports to be a confirmation of the contract contains additional or

different terms, such terms become part of the contract, unless they materially alter the

contract or the recipient, without undue delay, objects to the discrepancy.

RTICLE 2.1.13

(Conclusion of contract dependent on agreement on specific matters

or in a particular form)

Where in the course of negotiations one of the parties insists that the contract is not

concluded until there is agreement on specific matters or in a particular form, no

contract is concluded before agreement is reached on those matters or in that form.

UNIDROIT Principles 2016

ARTICLE 2.1.14

(Contract with terms deliberately left open)

(1) If the parties intend to conclude a contract, the fact that they intentionally

leave a term to be agreed upon in further negotiations or to be determined by one of the

parties or by a third person does not prevent a contract from coming into existence.

(2) The existence of the contract is not affected by the fact that subsequently

(a) the parties reach no agreement on the term;

(b) the party who is to determine the term does not do so; or

provided that there is an alternative means of rendering the term definite that is

reasonable in the circumstances, having regard to the intention of the parties.

RTICLE 2.1.15

(Negotiations in bad faith)

(1) A party is free to negotiate and is not liable for failure to reach an agreement.

(2) However, a party who negotiates or breaks off negotiations in bad faith is

liable for the losses caused to the other party.

(3) It is bad faith, in particular, for a party to enter into or continue negotiations

when intending not to reach an agreement with the other party.

RTICLE 2.1.16

(Duty of confidentiality)

Where information is given as confidential by one party in the course of

negotiations, the other party is under a duty not to disclose that information or to use it

improperly for its own purposes, whether or not a contract is subsequently concluded.

Where appropriate, the remedy for breach of that duty may include compensation based

on the benefit received by the other party.

RTICLE 2.1.17

(Merger clauses)

A contract in writing which contains a clause indicating that the writing completely

embodies the terms on which the parties have agreed cannot be contradicted or

supplemented by evidence of prior statements or agreements. However, such statements

or agreements may be used to interpret the writing.

RTICLE 2.1.18

(Modification in a particular form)

A contract in writing which contains a clause requiring any modification or

termination by agreement to be in a particular form may not be otherwise modified or

terminated. However, a party may be precluded by its conduct from asserting such a

clause to the extent that the other party has reasonably acted in reliance on that conduct.

RTICLE 2.1.19

(Contracting under standard terms)

(1) Where one party or both parties use standard terms in concluding a contract,

the general rules on formation apply, subject to Articles 2.1.20 - 2.1.22.

(2) Standard terms are provisions which are prepared in advance for general and

repeated use by one party and which are actually used without negotiation with the other

party.

UNIDROIT Principles 2016

ARTICLE 2.1.20

(Surprising terms)

(1) No term contained in standard terms which is of such a character that the other

party could not reasonably have expected it, is effective unless it has been expressly

accepted by that party.

(2) In determining whether a term is of such a character regard shall be had to its

content, language and presentation.

RTICLE 2.1.21

(Conflict between standard terms and non-standard terms)

In case of conflict between a standard term and a term which is not a standard term

the latter prevails.

RTICLE 2.1.22

(Battle of forms)

Where both parties use standard terms and reach agreement except on those terms, a

contract is concluded on the basis of the agreed terms and of any standard terms which

are common in substance unless one party clearly indicates in advance, or later and

without undue delay informs the other party, that it does not intend to be bound by such

a contract.

ECTION 2: AUTHORITY OF AGENTS

ARTICLE 2.2.1

(Scope of the Section)

(1) This Section governs the authority of a person (“the agent”) to affect the legal

relations of another person (“the principal”) by or with respect to a contract with a third

party, whether the agent acts in its own name or in that of the principal.

(2) It governs only the relations between the principal or the agent on the one

hand, and the third party on the other.

(3) It does not govern an agent’s authority conferred by law or the authority of an

agent appointed by a public or judicial authority.

RTICLE 2.2.2

(Establishment and scope of the authority of the agent)

(1) The principal’s grant of authority to an agent may be express or implied.

(2) The agent has authority to perform all acts necessary in the circumstances to

achieve the purposes for which the authority was granted.

RTICLE 2.2.3

(Agency disclosed)

(1) Where an agent acts within the scope of its authority and the third party knew

or ought to have known that the agent was acting as an agent, the acts of the agent shall

directly affect the legal relations between the principal and the third party and no legal

relation is created between the agent and the third party.

(2) However, the acts of the agent shall affect only the relations between the agent

and the third party, where the agent with the consent of the principal undertakes to

become the party to the contract.

UNIDROIT Principles 2016

ARTICLE 2.2.4

(Agency undisclosed)

(1) Where an agent acts within the scope of its authority and the third party

neither knew nor ought to have known that the agent was acting as an agent, the acts of

the agent shall affect only the relations between the agent and the third party.

(2) However, where such an agent, when contracting with the third party on

behalf of a business, represents itself to be the owner of that business, the third party,

upon discovery of the real owner of the business, may exercise also against the latter the

rights it has against the agent.

RTICLE 2.2.5

(Agent acting without or exceeding its authority)

(1) Where an agent acts without authority or exceeds its authority, its acts do not

affect the legal relations between the principal and the third party.

(2) However, where the principal causes the third party reasonably to believe that

the agent has authority to act on behalf of the principal and that the agent is acting

within the scope of that authority, the principal may not invoke against the third party

the lack of authority of the agent.

ARTICLE 2.2.6

(Liability of agent acting without or exceeding its authority)

(1) An agent that acts without authority or exceeds its authority is, failing

ratification by the principal, liable for damages that will place the third party in the same

position as if the agent had acted with authority and not exceeded its authority.

(2) However, the agent is not liable if the third party knew or ought to have

known that the agent had no authority or was exceeding its authority.

RTICLE 2.2.7

(Conflict of interests)

(1) If a contract concluded by an agent involves the agent in a conflict of interests

with the principal of which the third party knew or ought to have known, the principal

may avoid the contract. The right to avoid is subject to Articles 3.2.9 and 3.2.11 to

3.2.15.

(2) However, the principal may not avoid the contract

(a) if the principal had consented to, or knew or ought to have known of, the

agent’s involvement in the conflict of interests; or

(b) if the agent had disclosed the conflict of interests to the principal and the latter

had not objected within a reasonable time.

ARTICLE 2.2.8

(Sub-agency)

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. The rules of this Section apply to the

sub-agency.

RTICLE 2.2.9

(Ratification)

(1) An act by an agent that acts without authority or exceeds its authority may be

ratified by the principal. On ratification the act produces the same effects as if it had

initially been carried out with authority.

(2) The third party may by notice to the principal specify a reasonable period of

time for ratification. If the principal does not ratify within that period of time it can no

longer do so.

UNIDROIT Principles 2016

(3) If, at the time of the agent’s act, the third party neither knew nor ought to have

known of the lack of authority, it may, at any time before ratification, by notice to the

principal indicate its refusal to become bound by a ratification.

RTICLE 2.2.10

(Termination of authority)

(1) Termination of authority is not effective in relation to the third party unless the

third party knew or ought to have known of it.

(2) Notwithstanding the termination of its authority, an agent remains authorised

to perform the acts that are necessary to prevent harm to the principal’s interests.

CHAPTER 3 — VALIDITY

SECTION 1: GENERAL PROVISIONS

RTICLE 3.1.1

(Matters not covered)

This Chapter does not deal with lack of capacity.

RTICLE 3.1.2

(Validity of mere agreement)

A contract is concluded, modified or terminated by the mere agreement of the

parties, without any further requirement.

RTICLE 3.1.3

(Initial impossibility)

(1) The mere fact that at the time of the conclusion of the contract the

performance of the obligation assumed was impossible does not affect the validity of the

contract.

(2) The mere fact that at the time of the conclusion of the contract a party was not

entitled to dispose of the assets to which the contract relates does not affect the validity

of the contract.

RTICLE 3.1.4

(Mandatory character of the provisions)

The provisions on fraud, threat, gross disparity and illegality contained in this

Chapter are mandatory.

ECTION 2: GROUNDS FOR AVOIDANCE

RTICLE 3.2.1

(Definition of mistake)

Mistake is an erroneous assumption relating to facts or to law existing when the

contract was concluded.

RTICLE 3.2.2

(Relevant mistake)

(1) A party may only avoid the contract for mistake if, when the contract was

concluded, the mistake was of such importance that a reasonable person in the same

situation as the party in error would only have concluded the contract on materially

different terms or would not have concluded it at all if the true state of affairs had been

known, and

UNIDROIT Principles 2016

(a) the other party made the same mistake, or caused the mistake, or knew or ought to

have known of the mistake and it was contrary to reasonable commercial standards of

fair dealing to leave the mistaken party in error; or

(b) the other party had not at the time of avoidance reasonably acted in reliance on

the contract.

(2) However, a party may not avoid the contract if

(a) it was grossly negligent in committing the mistake; or

(b) the mistake relates to a matter in regard to which the risk of mistake was as-

sumed or, having regard to the circumstances, should be borne by the mistaken party.

RTICLE 3.2.3

(Error in expression or transmission)

An error occurring in the expression or transmission of a declaration is considered to

be a mistake of the person from whom the declaration emanated.

ARTICLE 3.2.4

(Remedies for non-performance)

A party is not entitled to avoid the contract on the ground of mistake if the

circumstances on which that party relies afford, or could have afforded, a remedy for

non-performance.

RTICLE 3.2.5

(Fraud)

A party may avoid the contract when it has been led to conclude the contract by the

other party’s fraudulent representation, including language or practices, or fraudulent

non-disclosure of circumstances which, according to reasonable commercial standards

of fair dealing, the latter party should have disclosed.

RTICLE 3.2.6

(Threat)

A party may avoid the contract when it has been led to conclude the contract by the

other party’s unjustified threat which, having regard to the circumstances, is so

imminent and serious as to leave the first party no reasonable alternative. In particular, a

threat is unjustified if the act or omission with which a party has been threatened is

wrongful in itself, or it is wrongful to use it as a means to obtain the conclusion of the

contract.

RTICLE 3.2.7

(Gross disparity)

(1) A party may avoid the contract or an individual term of it if, at the time of the

conclusion of the contract, the contract or term unjustifiably gave the other party an

excessive advantage. Regard is to be had, among other factors, to

(a) the fact that the other party has taken unfair advantage of the first party’s

dependence, economic distress or urgent needs, or of its improvidence, ignorance,

inexperience or lack of bargaining skill, and

(b) the nature and purpose of the contract.

(2) Upon the request of the party entitled to avoidance, a court may adapt the

contract or term in order to make it accord with reasonable commercial standards of fair

dealing.

(3) A court may also adapt the contract or term upon the request of the party

receiving notice of avoidance, provided that that party informs the other party of its

request promptly after receiving such notice and before the other party has reasonably

acted in reliance on it. Article 3.2.10(2) applies accordingly.

UNIDROIT Principles 2016

ARTICLE 3.2.8

(Third persons)

(1) Where fraud, threat, gross disparity or a party’s mistake is imputable to, or is

known or ought to be known by, a third person for whose acts the other party is

responsible, the contract may be avoided under the same conditions as if the behaviour

or knowledge had been that of the party itself.

(2) Where fraud, threat or gross disparity is imputable to a third person for whose

acts the other party is not responsible, the contract may be avoided if that party knew or

ought to have known of the fraud, threat or disparity, or has not at the time of avoidance

reasonably acted in reliance on the contract.

RTICLE 3.2.9

(Confirmation)

If the party entitled to avoid the contract expressly or impliedly confirms the

contract after the period of time for giving notice of avoidance has begun to run,

avoidance of the contract is excluded.

RTICLE 3.2.10

(Loss of right to avoid)

(1) If a party is entitled to avoid the contract for mistake but the other party

declares itself willing to perform or performs the contract as it was understood by the

party entitled to avoidance, the contract is considered to have been concluded as the

latter party understood it. The other party must make such a declaration or render such

performance promptly after having been informed of the manner in which the party

entitled to avoidance had understood the contract and before that party has reasonably

acted in reliance on a notice of avoidance.

(2) After such a declaration or performance the right to avoidance is lost and any

earlier notice of avoidance is ineffective.

RTICLE 3.2.11

(Notice of avoidance)

The right of a party to avoid the contract is exercised by notice to the other party.

RTICLE 3.2.12

(Time limits)

(1) Notice of avoidance shall be given within a reasonable time, having regard to

the circumstances, after the avoiding party knew or could not have been unaware of the

relevant facts or became capable of acting freely.

(2) Where an individual term of the contract may be avoided by a party under

Article 3.2.7, the period of time for giving notice of avoidance begins to run when that

term is asserted by the other party.

RTICLE 3.2.13

(Partial avoidance)

Where a ground of avoidance affects only individual terms of the contract, the effect

of avoidance is limited to those terms unless, having regard to the circumstances, it is

unreasonable to uphold the remaining contract.

RTICLE 3.2.14

(Retroactive effect of avoidance)

Avoidance takes effect retroactively.

UNIDROIT Principles 2016

ARTICLE 3.2.15

(Restitution)

(1) On avoidance either party may claim restitution of whatever it has supplied

under the contract, or the part of it avoided, provided that the party concurrently makes

restitution of whatever it has received under the contract, or the part of it avoided.

(2) If restitution in kind is not possible or appropriate, an allowance has to be

made in money whenever reasonable.

(3) The recipient of the performance does not have to make an allowance in money

if the impossibility to make restitution in kind is attributable to the other party.

(4) Compensation may be claimed for expenses reasonably required to preserve or

maintain the performance received.

RTICLE 3.2.16

(Damages)

Irrespective of whether or not the contract has been avoided, the party who knew or

ought to have known of the ground for avoidance is liable for damages so as to put the

other party in the same position in which it would have been if it had not concluded the

contract.

RTICLE 3.2.17

(Unilateral declarations)

The provisions of this Chapter apply with appropriate adaptations to any commu-

nication of intention addressed by one party to the other.

ECTION 3: ILLEGALITY

RTICLE 3.3.1

(Contracts infringing mandatory rules)

(1) Where a contract infringes a mandatory rule, whether of national, international

or supranational origin, applicable under Article 1.4 of these Principles, the effects of

that infringement upon the contract are the effects, if any, expressly prescribed by that

mandatory rule.

(2) Where the mandatory rule does not expressly prescribe the effects of an

infringement upon a contract, the parties have the right to exercise such remedies under

the contract as in the circumstances are reasonable.

(3) In determining what is reasonable regard is to be had in particular to:

(a) the purpose of the rule which has been infringed;

(b) the category of persons for whose protection the rule exists;

(d) the seriousness of the infringement;

(e) whether one or both parties knew or ought to have known of the infringement;

(f) whether the performance of the contract necessitates the infringement; and

(g) the parties’ reasonable expectations.

RTICLE 3.3.2

(Restitution)

(1) Where there has been performance under a contract infringing a mandatory

rule under Article 3.3.1, restitution may be granted where this would be reasonable in

the circumstances.

(2) In determining what is reasonable, regard is to be had, with the appropriate

adaptations, to the criteria referred to in Article 3.3.1(3).

(3) If restitution is granted, the rules set out in Article 3.2.15 apply with

appropriate adaptations.

UNIDROIT Principles 2016

HAPTER 4 — INTERPRETATION

ARTICLE 4.1

(Intention of the parties)

(1) A contract shall be interpreted according to the common intention of the

parties.

(2) If such an intention cannot be established, the contract shall be interpreted

according to the meaning that reasonable persons of the same kind as the parties would

give to it in the same circumstances.

RTICLE 4.2

(Interpretation of statements and other conduct)

(1) The statements and other conduct of a party shall be interpreted according to

that party’s intention if the other party knew or could not have been unaware of that

intention.

(2) If the preceding paragraph is not applicable, such statements and other conduct

shall be interpreted according to the meaning that a reasonable person of the same kind

as the other party would give to it in the same circumstances.

RTICLE 4.3

(Relevant circumstances)

In applying Articles 4.1 and 4.2, regard shall be had to all the circumstances,

including

(a) preliminary negotiations between the parties;

(b) practices which the parties have established between themselves;

(d) the nature and purpose of the contract;

(e) the meaning commonly given to terms and expressions in the trade concerned;

(f) usages.

RTICLE 4.4

(Reference to contract or statement as a whole)

Terms and expressions shall be interpreted in the light of the whole contract or

statement in which they appear.

RTICLE 4.5

(All terms to be given effect)

Contract terms shall be interpreted so as to give effect to all the terms rather than to

deprive some of them of effect.

RTICLE 4.6

(Contra proferentem rule)

If contract terms supplied by one party are unclear, an interpretation against that

party is preferred.

RTICLE 4.7

(Linguistic discrepancies)

Where a contract is drawn up in two or more language versions which are equally

authoritative there is, in case of discrepancy between the versions, a preference for the

interpretation according to a version in which the contract was originally drawn up.

UNIDROIT Principles 2016

ARTICLE 4.8

(Supplying an omitted term)

(1) Where the parties to a contract have not agreed with respect to a term which is

important for a determination of their rights and duties, a term which is appropriate in

the circumstances shall be supplied.

(2) In determining what is an appropriate term regard shall be had, among other

factors, to

(a) the intention of the parties;

(b) the nature and purpose of the contract;

(d) reasonableness.

CHAPTER 5 — CONTENT AND THIRD PARTY RIGHTS

SECTION 1: CONTENT

RTICLE 5.1.1

(Express and implied obligations)

The contractual obligations of the parties may be express or implied.

RTICLE 5.1.2

(Implied obligations)

Implied obligations stem from

(a) the nature and purpose of the contract;

(b) practices established between the parties and usages;

(d) reasonableness.

RTICLE 5.1.3

(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.

RTICLE 5.1.4

(Duty to achieve a specific result.

Duty of best efforts)

(1) To the extent that an obligation of a party involves a duty to achieve a specific

result, that party is bound to achieve that result.

(2) To the extent that an obligation of a party involves a duty of best efforts in the

performance of an activity, that party is bound to make such efforts as would be made

by a reasonable person of the same kind in the same circumstances.

RTICLE 5.1.5

(Determination of kind of duty involved)

In determining the extent to which an obligation of a party involves a duty of best

efforts in the performance of an activity or a duty to achieve a specific result, regard

shall be had, among other factors, to

(a) the way in which the obligation is expressed in the contract;

(b) the contractual price and other terms of the contract;

(d) the ability of the other party to influence the performance of the obligation.

UNIDROIT Principles 2016

ARTICLE 5.1.6

(Determination of quality of performance)

Where the quality of performance is neither fixed by, nor determinable from, the

contract a party is bound to render a performance of a quality that is reasonable and not

less than average in the circumstances.

RTICLE 5.1.7

(Price determination)

(1) Where a contract does not fix or make provision for determining the price, the

parties are considered, in the absence of any indication to the contrary, to have made

reference to the price generally charged at the time of the conclusion of the contract for

such performance in comparable circumstances in the trade concerned or, if no such

price is available, to a reasonable price.

(2) Where the price is to be determined by one party and that determination is

manifestly unreasonable, a reasonable price shall be substituted notwithstanding any

contract term to the contrary.

(3) Where the price is to be fixed by one party or a third person, and that party or

third person does not do so, the price shall be a reasonable price.

(4) Where the price is to be fixed by reference to factors which do not exist or

have ceased to exist or to be accessible, the nearest equivalent factor shall be treated as a

substitute.

RTICLE 5.1.8

(Termination of a contract for an indefinite period)

A contract for an indefinite period may be terminated by either party by giving

notice a reasonable time in advance. As to the effects of termination in general, and as to

restitution, the provisions in Articles 7.3.5 and 7.3.7 apply.

RTICLE 5.1.9

(Release by agreement)

(1) An obligee may release its right by agreement with the obligor.

(2) 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.

ECTION 2: THIRD PARTY RIGHTS

RTICLE 5.2.1

(Contracts in favour of third parties)

(1) The parties (the “promisor” and the “promisee”) may confer by express or

implied agreement a right on a third party (the “beneficiary”).

(2) The existence and content of the beneficiary’s right against the promisor are

determined by the agreement of the parties and are subject to any conditions or other

limitations under the agreement.

RTICLE 5.2.2

(Third party identifiable)

The beneficiary must be identifiable with adequate certainty by the contract but need

not be in existence at the time the contract is made.

RTICLE 5.2.3

(Exclusion and limitation clauses)

The conferment of rights in the beneficiary includes the right to invoke a clause in

the contract which excludes or limits the liability of the beneficiary.

UNIDROIT Principles 2016

ARTICLE 5.2.4

(Defences)

The promisor may assert against the beneficiary all defences which the promisor

could assert against the promisee.

RTICLE 5.2.5

(Revocation)

The parties may modify or revoke the rights conferred by the contract on the

beneficiary until the beneficiary has accepted them or reasonably acted in reliance on

them.

RTICLE 5.2.6

(Renunciation)

The beneficiary may renounce a right conferred on it.

ECTION 3: CONDITIONS

ARTICLE 5.3.1

(Types of condition)

A contract or a contractual obligation may be made conditional upon the occurrence

of a future uncertain event, so that the contract or the contractual obligation only takes

effect if the event occurs (suspensive condition) or comes to an end if the event occurs

(resolutive condition).

RTICLE 5.3.2

(Effect of conditions)

Unless the parties otherwise agree:

(a) the relevant contract or contractual obligation takes effect upon fulfilment of a

suspensive condition;

(b) the relevant contract or contractual obligation comes to an end upon fulfilment

of a resolutive condition.

RTICLE 5.3.3

(Interference with conditions)

(1) If fulfilment of a condition is prevented by a party, contrary to the duty of

good faith and fair dealing or the duty of co-operation, that party may not rely on the

non-fulfilment of the condition.

(2) If fulfilment of a condition is brought about by a party, contrary to the duty of

good faith and fair dealing or the duty of co-operation, that party may not rely on the

fulfilment of the condition.

RTICLE 5.3.4

(Duty to preserve rights)

Pending fulfilment of a condition, a party may not, contrary to the duty to act in

accordance with good faith and fair dealing, act so as to prejudice the other party’s

rights in case of fulfilment of the condition.

RTICLE 5.3.5

(Restitution in case of fulfilment of a resolutive condition)

(1) On fulfilment of a resolutive condition, the rules on restitution set out in

Articles 7.3.6 and 7.3.7 apply with appropriate adaptations.

UNIDROIT Principles 2016

(2) If the parties have agreed that the resolutive condition is to operate

retroactively, the rules on restitution set out in Article 3.2.15 apply with appropriate

adaptations.

CHAPTER 6 — PERFORMANCE

SECTION 1: PERFORMANCE IN GENERAL

RTICLE 6.1.1

(Time of performance)

A party must perform its obligations:

(a) if a time is fixed by or determinable from the contract, at that time;

(b) if a period of time is fixed by or determinable from the contract, at any time

within that period unless circumstances indicate that the other party is to choose a time;

RTICLE 6.1.2

(Performance at one time or in instalments)

In cases under Article 6.1.1(b) or (c), a party must perform its obligations at one

time if that performance can be rendered at one time and the circumstances do not

indicate otherwise.

RTICLE 6.1.3

(Partial performance)

(1) The obligee may reject an offer to perform in part at the time performance is

due, whether or not such offer is coupled with an assurance as to the balance of the

performance, unless the obligee has no legitimate interest in so doing.

(2) Additional expenses caused to the obligee by partial performance are to be

borne by the obligor without prejudice to any other remedy.

RTICLE 6.1.4

(Order of performance)

(1) To the extent that the performances of the parties can be rendered

simultaneously, the parties are bound to render them simultaneously unless the

circumstances indicate otherwise.

(2) To the extent that the performance of only one party requires a period of time,

that party is bound to render its performance first, unless the circumstances indicate

otherwise.

RTICLE 6.1.5

(Earlier performance)

(1) The obligee may reject an earlier performance unless it has no legitimate

interest in so doing.

(2) Acceptance by a party of an earlier performance does not affect the time for

the performance of its own obligations if that time has been fixed irrespective of the

performance of the other party’s obligations.

(3) Additional expenses caused to the obligee by earlier performance are to be

borne by the obligor, without prejudice to any other remedy.

RTICLE 6.1.6

(Place of performance)

(1) If the place of performance is neither fixed by, nor determinable from, the

contract, a party is to perform:

UNIDROIT Principles 2016

(a) a monetary obligation, at the obligee’s place of business;

(b) any other obligation, at its own place of business.

(2) A party must bear any increase in the expenses incidental to performance

which is caused by a change in its place of business subsequent to the conclusion of the

contract.

RTICLE 6.1.7

(Payment by cheque or other instrument)

(1) Payment may be made in any form used in the ordinary course of business at

the place for payment.

(2) However, an obligee who accepts, either by virtue of paragraph (1) or

voluntarily, a cheque, any other order to pay or a promise to pay, is presumed to do so

only on condition that it will be honoured.

RTICLE 6.1.8

(Payment by funds transfer)

(1) Unless the obligee has indicated a particular account, payment may be made

by a transfer to any of the financial institutions in which the obligee has made it known

that it has an account.

(2) In case of payment by a transfer the obligation of the obligor is discharged

when the transfer to the obligee’s financial institution becomes effective.

RTICLE 6.1.9

(Currency of payment)

(1) If a monetary obligation is expressed in a currency other than that of the place

for payment, it may be paid by the obligor in the currency of the place for payment

unless

(a) that currency is not freely convertible; or

(b) the parties have agreed that payment should be made only in the currency in

which the monetary obligation is expressed.

(2) If it is impossible for the obligor to make payment in the currency in which the

monetary obligation is expressed, the obligee may require payment in the currency of

the place for payment, even in the case referred to in paragraph (1)(b).

(3) Payment in the currency of the place for payment is to be made according to

the applicable rate of exchange prevailing there when payment is due.

(4) However, if the obligor has not paid at the time when payment is due, the

obligee may require payment according to the applicable rate of exchange prevailing

either when payment is due or at the time of actual payment.

RTICLE 6.1.10

(Currency not expressed)

Where a monetary obligation is not expressed in a particular currency, payment must

be made in the currency of the place where payment is to be made.

RTICLE 6.1.11

(Costs of performance)

Each party shall bear the costs of performance of its obligations.

RTICLE 6.1.12

(Imputation of payments)

(1) An obligor owing several monetary obligations to the same obligee may

specify at the time of payment the debt to which it intends the payment to be applied.

UNIDROIT Principles 2016

However, the payment discharges first any expenses, then interest due and finally the

principal.

(2) If the obligor makes no such specification, the obligee may, within a

reasonable time after payment, declare to the obligor the obligation to which it imputes

the payment, provided that the obligation is due and undisputed.

(3) In the absence of imputation under paragraphs (1) or (2), payment is imputed

to that obligation which satisfies one of the following criteria in the order indicated:

(a) an obligation which is due or which is the first to fall due;

(b) the obligation for which the obligee has least security;

(d) the obligation which has arisen first.

If none of the preceding criteria applies, payment is imputed to all the obligations

proportionally.

RTICLE 6.1.13

(Imputation of non-monetary obligations)

Article 6.1.12 applies with appropriate adaptations to the imputation of performance

of non-monetary obligations.

RTICLE 6.1.14

(Application for public permission)

Where the law of a State requires a public permission affecting the validity of the

contract or its performance and neither that law nor the circumstances indicate otherwise

(a) if only one party has its place of business in that State, that party shall take the

measures necessary to obtain the permission;

(b) in any other case the party whose performance requires permission shall take

the necessary measures.

RTICLE 6.1.15

(Procedure in applying for permission)

(1) The party required to take the measures necessary to obtain the permission

shall do so without undue delay and shall bear any expenses incurred.

(2) That party shall whenever appropriate give the other party notice of the grant

or refusal of such permission without undue delay.

RTICLE 6.1.16

(Permission neither granted nor refused)

(1) If, notwithstanding the fact that the party responsible has taken all measures

required, permission is neither granted nor refused within an agreed period or, where no

period has been agreed, within a reasonable time from the conclusion of the contract,

either party is entitled to terminate the contract.

(2) Where the permission affects some terms only, paragraph (1) does not apply

if, having regard to the circumstances, it is reasonable to uphold the remaining contract

even if the permission is refused.

RTICLE 6.1.17

(Permission refused)

(1) The refusal of a permission affecting the validity of the contract renders the

contract void. If the refusal affects the validity of some terms only, only such terms are

void if, having regard to the circumstances, it is reasonable to uphold the remaining

contract.

(2) Where the refusal of a permission renders the performance of the contract

impossible in whole or in part, the rules on non-performance apply.

UNIDROIT Principles 2016

SECTION 2: HARDSHIP

RTICLE 6.2.1

(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.

RTICLE 6.2.2

(Definition of hardship)

There is hardship where the occurrence of events fundamentally alters the equilib-

rium 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 conclu-

sion of the contract;

(b) the events could not reasonably have been taken into account by the disadvan-

taged party at the time of the conclusion of the contract;

(d) the risk of the events was not assumed by the disadvantaged party.

RTICLE 6.2.3

(Effects of hardship)

(1) In case of hardship the disadvantaged party is entitled to request renegotia-

tions. 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.

CHAPTER 7 — NON-PERFORMANCE

SECTION 1: NON-PERFORMANCE IN GENERAL

ARTICLE 7.1.1

(Non-performance defined)

Non-performance is failure by a party to perform any of its obligations under the

contract, including defective performance or late performance.

RTICLE 7.1.2

(Interference by the other party)

A party may not rely on the non-performance of the other party to the extent that

such non-performance was caused by the first party’s act or omission or by another

event for which the first party bears the risk.

RTICLE 7.1.3

(Withholding performance)

(1) Where the parties are to perform simultaneously, either party may withhold

performance until the other party tenders its performance.

UNIDROIT Principles 2016

(2) Where the parties are to perform consecutively, the party that is to perform

later may withhold its performance until the first party has performed.

RTICLE 7.1.4

(Cure by non-performing party)

(1) The non-performing party may, at its own expense, cure any non-performance,

provided that

(a) without undue delay, it gives notice indicating the proposed manner and

timing of the cure;

(b) cure is appropriate in the circumstances;

(d) cure is effected promptly.

(2) The right to cure is not precluded by notice of termination.

(3) Upon effective notice of cure, rights of the aggrieved party that are

inconsistent with the non-performing party’s performance are suspended until the time

for cure has expired.

(4) The aggrieved party may withhold performance pending cure.

(5) Notwithstanding cure, the aggrieved party retains the right to claim damages

for delay as well as for any harm caused or not prevented by the cure.

RTICLE 7.1.5

(Additional period for performance)

(1) In a case of non-performance the aggrieved party may by notice to the other

party allow an additional period of time for performance.

(2) During the additional period the aggrieved party may withhold performance of

its own reciprocal obligations and may claim damages but may not resort to any other

remedy. If it receives notice from the other party that the latter will not perform within

that period, or if upon expiry of that period due performance has not been made, the ag-

grieved party may resort to any of the remedies that may be available under this

Chapter.

(3) Where in a case of delay in performance which is not fundamental the

aggrieved party has given notice allowing an additional period of time of reasonable

length, it may terminate the contract at the end of that period. If the additional period

allowed is not of reasonable length it shall be extended to a reasonable length. The

aggrieved party may in its notice provide that if the other party fails to perform within

the period allowed by the notice the contract shall automatically terminate.

(4) Paragraph (3) does not apply where the obligation which has not been

performed is only a minor part of the contractual obligation of the non-performing party.

RTICLE 7.1.6

(Exemption clauses)

A clause which limits or excludes one party’s liability for non-performance or which

permits one party to render performance substantially different from what the other

party reasonably expected may not be invoked if it would be grossly unfair to do so,

having regard to the purpose of the contract.

RTICLE 7.1.7

(Force majeure)

(1) Non-performance by a party is excused if that party proves that the non-

performance 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.

UNIDROIT Principles 2016

(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 non-

receipt.

(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.

ECTION 2: RIGHT TO PERFORMANCE

RTICLE 7.2.1

(Performance of monetary obligation)

Where a party who is obliged to pay money does not do so, the other party may re-

quire payment.

RTICLE 7.2.2

(Performance of non-monetary obligation)

Where a party who owes an obligation other than one to pay money does not per-

form, the other party may require performance, unless

(a) performance is impossible in law or in fact;

(b) performance or, where relevant, enforcement is unreasonably burdensome or

expensive;

other source;

(d) performance is of an exclusively personal character; or

(e) the party entitled to performance does not require performance within a

reasonable time after it has, or ought to have, become aware of the non-performance.

RTICLE 7.2.3

(Repair and replacement of defective performance)

The right to performance includes in appropriate cases the right to require repair,

replacement, or other cure of defective performance. The provisions of Articles 7.2.1

and 7.2.2 apply accordingly.

RTICLE 7.2.4

(Judicial penalty)

(1) Where the court orders a party to perform, it may also direct that this party pay

a penalty if it does not comply with the order.

(2) The penalty shall be paid to the aggrieved party unless mandatory provisions

of the law of the forum provide otherwise. Payment of the penalty to the aggrieved party

does not exclude any claim for damages.

RTICLE 7.2.5

(Change of remedy)

(1) An aggrieved party who has required performance of a non-monetary obliga-

tion and who has not received performance within a period fixed or otherwise within a

reasonable period of time may invoke any other remedy.

(2) Where the decision of a court for performance of a non-monetary obligation

cannot be enforced, the aggrieved party may invoke any other remedy.

UNIDROIT Principles 2016

SECTION 3: TERMINATION

RTICLE 7.3.1

(Right to terminate the contract)

(1) A party may terminate the contract where the failure of the other party to

perform an obligation under the contract amounts to a fundamental non-performance.

(2) In determining whether a failure to perform an obligation amounts to a funda-

mental non-performance regard shall be had, in particular, to whether

(a) the non-performance substantially deprives the aggrieved party of what it was

entitled to expect under the contract unless the other party did not foresee and could not

reasonably have foreseen such result;

(b) strict compliance with the obligation which has not been performed is of

essence under the contract;

(d) the non-performance gives the aggrieved party reason to believe that it cannot

rely on the other party’s future performance;

(e) the non-performing party will suffer disproportionate loss as a result of the

preparation or performance if the contract is terminated.

(3) In the case of delay the aggrieved party may also terminate the contract if the

other party fails to perform before the time allowed it under Article 7.1.5 has expired.

ARTICLE 7.3.2

(Notice of termination)

(1) The right of a party to terminate the contract is exercised by notice to the other

party.

(2) If performance has been offered late or otherwise does not conform to the

contract the aggrieved party will lose its right to terminate the contract unless it gives

notice to the other party within a reasonable time after it has or ought to have become

aware of the offer or of the non-conforming performance.

RTICLE 7.3.3

(Anticipatory non-performance)

Where prior to the date for performance by one of the parties it is clear that there

will be a fundamental non-performance by that party, the other party may terminate the

contract.

RTICLE 7.3.4

(Adequate assurance of due performance)

A party who reasonably believes that there will be a fundamental non-performance

by the other party may demand adequate assurance of due performance and may

meanwhile withhold its own performance. Where this assurance is not provided within a

reasonable time the party demanding it may terminate the contract.

RTICLE 7.3.5

(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.

UNIDROIT Principles 2016

ARTICLE 7.3.6

(Restitution with respect to contracts to be performed at one time)

(1) On termination of a contract to be performed at one time either party may

claim restitution of whatever it has supplied under the contract, provided that such party

concurrently makes restitution of whatever it has received under the contract.

(2) If restitution in kind is not possible or appropriate, an allowance has to be

made in money whenever reasonable.

(3) The recipient of the performance does not have to make an allowance in

money if the impossibility to make restitution in kind is attributable to the other party.

(4) Compensation may be claimed for expenses reasonably required to preserve or

maintain the performance received.

RTICLE 7.3.7

(Restitution with respect to long-term contracts)

(1) On termination of a long-term contract restitution can only be claimed for the

period after termination has taken effect, provided the contract is divisible.

(2) As far as restitution has to be made, the provisions of Article 7.3.6 apply.

ECTION 4: DAMAGES

ARTICLE 7.4.1

(Right to damages)

Any non-performance gives the aggrieved party a right to damages either

exclusively or in conjunction with any other remedies except where the non-

performance is excused under these Principles.

RTICLE 7.4.2

(Full compensation)

(1) The aggrieved party is entitled to full compensation for harm sustained as a

result of the non-performance. Such harm includes both any loss which it suffered and

any gain of which it was deprived, taking into account any gain to the aggrieved party

resulting from its avoidance of cost or harm.

(2) Such harm may be non-pecuniary and includes, for instance, physical

suffering or emotional distress.

RTICLE 7.4.3

(Certainty of harm)

(1) Compensation is due only for harm, including future harm, that is established

with a reasonable degree of certainty.

(2) Compensation may be due for the loss of a chance in proportion to the

probability of its occurrence.

(3) Where the amount of damages cannot be established with a sufficient degree

of certainty, the assessment is at the discretion of the court.

RTICLE 7.4.4

(Foreseeability of harm)

The non-performing party is liable only for harm which it foresaw or could

reasonably have foreseen at the time of the conclusion of the contract as being likely to

result from its non-performance.

UNIDROIT Principles 2016

ARTICLE 7.4.5

(Proof of harm in case of replacement transaction)

Where the aggrieved party has terminated the contract and has made a replacement

transaction within a reasonable time and in a reasonable manner it may recover the

difference between the contract price and the price of the replacement transaction as

well as damages for any further harm.

RTICLE 7.4.6

(Proof of harm by current price)

(1) Where the aggrieved party has terminated the contract and has not made a

replacement transaction but there is a current price for the performance contracted for, it

may recover the difference between the contract price and the price current at the time

the contract is terminated as well as damages for any further harm.

(2) Current price is the price generally charged for goods delivered or services

rendered in comparable circumstances at the place where the contract should have been

performed or, if there is no current price at that place, the current price at such other

place that appears reasonable to take as a reference.

RTICLE 7.4.7

(Harm due in part to aggrieved party)

Where the harm is due in part to an act or omission of the aggrieved party or to an-

other event for which that party bears the risk, the amount of damages shall be reduced

to the extent that these factors have contributed to the harm, having regard to the

conduct of each of the parties.

RTICLE 7.4.8

(Mitigation of harm)

(1) The non-performing party is not liable for harm suffered by the aggrieved

party to the extent that the harm could have been reduced by the latter party’s taking

reasonable steps.

(2) The aggrieved party is entitled to recover any expenses reasonably incurred in

attempting to reduce the harm.

RTICLE 7.4.9

(Interest for failure to pay money)

(1) If a party does not pay a sum of money when it falls due the aggrieved party is

entitled to interest upon that sum from the time when payment is due to the time of

payment whether or not the non-payment is excused.

(2) The rate of interest shall be the average bank short-term lending rate to prime

borrowers prevailing for the currency of payment at the place for payment, or where no

such rate exists at that place, then the same rate in the State of the currency of payment.

In the absence of such a rate at either place the rate of interest shall be the appropriate

rate fixed by the law of the State of the currency of payment.

(3) The aggrieved party is entitled to additional damages if the non-payment

caused it a greater harm.

RTICLE 7.4.10

(Interest on damages)

Unless otherwise agreed, interest on damages for non-performance of non-monetary

obligations accrues as from the time of non-performance.

UNIDROIT Principles 2016

ARTICLE 7.4.11

(Manner of monetary redress)

(1) Damages are to be paid in a lump sum. However, they may be payable in

instalments where the nature of the harm makes this appropriate.

(2) Damages to be paid in instalments may be indexed.

RTICLE 7.4.12

(Currency in which to assess damages)

Damages are to be assessed either in the currency in which the monetary obligation

was expressed or in the currency in which the harm was suffered, whichever is more

appropriate.

RTICLE 7.4.13

(Agreed payment for non-performance)

(1) Where the contract provides that a party who does not perform is to pay a

specified sum to the aggrieved party for such non-performance, the aggrieved party is

entitled to that sum irrespective of its actual harm.

(2) However, notwithstanding any agreement to the contrary the specified sum

may be reduced to a reasonable amount where it is grossly excessive in relation to the

harm resulting from the non-performance and to the other circumstances.

CHAPTER 8 — SET-OFF

ARTICLE 8.1

(Conditions of set-off)

(1) Where two parties owe each other money or other performances of the same

kind, either of them (“the first party”) may set off its obligation against that of its

obligee (“the other party”) if at the time of set-off,

(a) the first party is entitled to perform its obligation;

(b) the other party’s obligation is ascertained as to its existence and amount and

performance is due.

(2) If the obligations of both parties arise from the same contract, the first party

may also set off its obligation against an obligation of the other party which is not

ascertained as to its existence or to its amount.

RTICLE 8.2

(Foreign currency set-off)

Where the obligations are to pay money in different currencies, the right of set-off

may be exercised, provided that both currencies are freely convertible and the parties

have not agreed that the first party shall pay only in a specified currency.

RTICLE 8.3

(Set-off by notice)

The right of set-off is exercised by notice to the other party.

RTICLE 8.4

(Content of notice)

(1) The notice must specify the obligations to which it relates.

(2) If the notice does not specify the obligation against which set-off is exercised,

the other party may, within a reasonable time, declare to the first party the obligation to

which set-off relates. If no such declaration is made, the set-off will relate to all the

obligations proportionally.

UNIDROIT Principles 2016

ARTICLE 8.5

(Effect of set-off)

(1) Set-off discharges the obligations.

(2) If obligations differ in amount, set-off discharges the obligations up to the

amount of the lesser obligation.

(3) Set-off takes effect as from the time of notice.

CHAPTER 9 — ASSIGNMENT OF RIGHTS, TRANSFER OF OBLIGATIONS,

ASSIGNMENT OF CONTRACTS

SECTION 1: ASSIGNMENT OF RIGHTS

RTICLE 9.1.1

(Definitions)

“Assignment of a right” means the transfer by agreement from one person (the

“assignor”) to another person (the “assignee”), including transfer by way of security, of

the assignor’s right to payment of a monetary sum or other performance from a third

person (“the obligor”).

RTICLE 9.1.2

(Exclusions)

This Section does not apply to transfers made under the special rules governing the

transfers:

(a) of instruments such as negotiable instruments, documents of title or financial

instruments, or

(b) of rights in the course of transferring a business.

RTICLE 9.1.3

(Assignability of non-monetary rights)

A right to non-monetary performance may be assigned only if the assignment does

not render the obligation significantly more burdensome.

RTICLE 9.1.4

(Partial assignment)

(1) A right to the payment of a monetary sum may be assigned partially.

(2) A right to other performance may be assigned partially only if it is divisible,

and the assignment does not render the obligation significantly more burdensome.

RTICLE 9.1.5

(Future rights)

A future right is deemed to be transferred at the time of the agreement, provided the

right, when it comes into existence, can be identified as the right to which the

assignment relates.

RTICLE 9.1.6

(Rights assigned without individual specification)

A number of rights may be assigned without individual specification, provided such

rights can be identified as rights to which the assignment relates at the time of the

assignment or when they come into existence.

UNIDROIT Principles 2016

ARTICLE 9.1.7

(Agreement between assignor and assignee sufficient)

(1) A right is assigned by mere agreement between the assignor and the assignee,

without notice to the obligor.

(2) The consent of the obligor is not required unless the obligation in the circum-

stances is of an essentially personal character.

RTICLE 9.1.8

(Obligor’s additional costs)

The obligor has a right to be compensated by the assignor or the assignee for any

additional costs caused by the assignment.

RTICLE 9.1.9

(Non-assignment clauses)

(1) The assignment of a right to the payment of a monetary sum is effective

notwithstanding an agreement between the assignor and the obligor limiting or

prohibiting such an assignment. However, the assignor may be liable to the obligor for

breach of contract.

(2) The assignment of a right to other performance is ineffective if it is contrary to

an agreement between the assignor and the obligor limiting or prohibiting the

assignment. Nevertheless, the assignment is effective if the assignee, at the time of the

assignment, neither knew nor ought to have known of the agreement. The assignor may

then be liable to the obligor for breach of contract.

RTICLE 9.1.10

(Notice to the obligor)

(1) Until the obligor receives a notice of the assignment from either the assignor

or the assignee, it is discharged by paying the assignor.

(2) After the obligor receives such a notice, it is discharged only by paying the

assignee.

RTICLE 9.1.11

(Successive assignments)

If the same right has been assigned by the same assignor to two or more successive

assignees, the obligor is discharged by paying according to the order in which the

notices were received.

RTICLE 9.1.12

(Adequate proof of assignment)

(1) If notice of the assignment is given by the assignee, the obligor may request

the assignee to provide within a reasonable time adequate proof that the assignment has

been made.

(2) Until adequate proof is provided, the obligor may withhold payment.

(3) Unless adequate proof is provided, notice is not effective.

(4) Adequate proof includes, but is not limited to, any writing emanating from the

assignor and indicating that the assignment has taken place.

RTICLE 9.1.13

(Defences and rights of set-off)

(1) The obligor may assert against the assignee all defences that the obligor could

assert against the assignor.

(2) 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 was received.

UNIDROIT Principles 2016

ARTICLE 9.1.14

(Rights related to the right assigned)

The assignment of a right transfers to the assignee:

(a) all the assignor’s rights to payment or other performance under the contract in

respect of the right assigned, and

(b) all rights securing performance of the right assigned.

RTICLE 9.1.15

(Undertakings of the assignor)

The assignor undertakes towards the assignee, except as otherwise disclosed to the

assignee, that:

(a) the assigned right exists at the time of the assignment, unless the right is a

future right;

(b) the assignor is entitled to assign the right;

from any right or claim from a third party;

(d) the obligor does not have any defences;

(e) neither the obligor nor the assignor has given notice of set-off concerning the

assigned right and will not give any such notice;

(f) the assignor will reimburse the assignee for any payment received from the

obligor before notice of the assignment was given.

ECTION 2: TRANSFER OF OBLIGATIONS

ARTICLE 9.2.1

(Modes of transfer)

An obligation to pay money or render other performance may be transferred from

one person (the “original obligor”) to another person (the “new obligor”) either

(a) by an agreement between the original obligor and the new obligor subject to

Article 9.2.3, or

(b) by an agreement between the obligee and the new obligor, by which the new

obligor assumes the obligation.

RTICLE 9.2.2

(Exclusion)

This Section does not apply to transfers of obligations made under the special rules

governing transfers of obligations in the course of transferring a business.

RTICLE 9.2.3

(Requirement of obligee’s consent to transfer)

The transfer of an obligation by an agreement between the original obligor and the

new obligor requires the consent of the obligee.

RTICLE 9.2.4

(Advance consent of obligee)

(1) The obligee may give its consent in advance.

(2) If the obligee has given its consent in advance, the transfer of the obligation

becomes effective when a notice of the transfer is given to the obligee or when the

obligee acknowledges it.

RTICLE 9.2.5

(Discharge of original obligor)

(1) The obligee may discharge the original obligor.

UNIDROIT Principles 2016

(2) The obligee may also retain the original obligor as an obligor in case the new

obligor does not perform properly.

(3) Otherwise the original obligor and the new obligor are jointly and severally

liable.

RTICLE 9.2.6

(Third party performance)

(1) Without the obligee’s consent, the obligor may contract with another person that

this person will perform the obligation in place of the obligor, unless the obligation in the

circumstances has an essentially personal character.

(2) The obligee retains its claim against the obligor.

RTICLE 9.2.7

(Defences and rights of set-off)

(1) The new obligor may assert against the obligee all defences which the original

obligor could assert against the obligee.

(2) The new obligor may not exercise against the obligee any right of set-off

available to the original obligor against the obligee.

RTICLE 9.2.8

(Rights related to the obligation transferred)

(1) The obligee may assert against the new obligor all its rights to payment or

other performance under the contract in respect of the obligation transferred.

(2) If the original obligor is discharged under Article 9.2.5(1), a security granted

by any person other than the new obligor for the performance of the obligation is

discharged, unless that other person agrees that it should continue to be available to the

obligee.

(3) Discharge of the original obligor also extends to any security of the original

obligor given to the obligee for the performance of the obligation, unless the security is

over an asset which is transferred as part of a transaction between the original obligor

and the new obligor.

ECTION 3: ASSIGNMENT OF CONTRACTS

RTICLE 9.3.1

(Definitions)

“Assignment of a contract” means the transfer by agreement from one person (the

“assignor”) to another person (the “assignee”) of the assignor’s rights and obligations

arising out of a contract with another person (the “other party”).

RTICLE 9.3.2

(Exclusion)

This Section does not apply to the assignment of contracts made under the special

rules governing transfers of contracts in the course of transferring a business.

RTICLE 9.3.3

(Requirement of consent of the other party)

The assignment of a contract requires the consent of the other party.

RTICLE 9.3.4

(Advance consent of the other party)

(1) The other party may give its consent in advance.

UNIDROIT Principles 2016

(2) If the other party has given its consent in advance, the assignment of the

contract becomes effective when a notice of the assignment is given to the other party or

when the other party acknowledges it.

RTICLE 9.3.5

(Discharge of the assignor)

(1) The other party may discharge the assignor.

(2) The other party may also retain the assignor as an obligor in case the assignee

does not perform properly.

(3) Otherwise the assignor and the assignee are jointly and severally liable.

RTICLE 9.3.6

(Defences and rights of set-off)

(1) To the extent that the assignment of a contract involves an assignment of

rights, Article 9.1.13 applies accordingly.

(2) To the extent that the assignment of a contract involves a transfer of

obligations, Article 9.2.7 applies accordingly.

ARTICLE 9.3.7

(Rights transferred with the contract)

(1) To the extent that the assignment of a contract involves an assignment of

rights, Article 9.1.14 applies accordingly.

(2) To the extent that the assignment of a contract involves a transfer of

obligations, Article 9.2.8 applies accordingly.

CHAPTER 10 — LIMITATION PERIODS

ARTICLE 10.1

(Scope of the Chapter)

(1) The exercise of rights governed by the Principles is barred by the expiration of

a period of time, referred to as “limitation period”, according to the rules of this Chapter.

(2) This Chapter does not govern the time within which one party is required

under the Principles, as a condition for the acquisition or exercise of its right, to give

notice to the other party or to perform any act other than the institution of legal

proceedings.

RTICLE 10.2

(Limitation periods)

(1) The general limitation period is three years beginning on the day after the day

the obligee knows or ought to know the facts as a result of which the obligee’s right can

be exercised.

(2) In any event, the maximum limitation period is ten years beginning on the day

after the day the right can be exercised.

RTICLE 10.3

(Modification of limitation periods by the parties)

(1) The parties may modify the limitation periods.

(2) However they may not

(a) shorten the general limitation period to less than one year;

(b) shorten the maximum limitation period to less than four years;

UNIDROIT Principles 2016

ARTICLE 10.4

(New limitation period by acknowledgement)

(1) Where the obligor before the expiration of the general limitation period

acknowledges the right of the obligee, a new general limitation period begins on the day

after the day of the acknowledgement.

(2) The maximum limitation period does not begin to run again, but may be

exceeded by the beginning of a new general limitation period under Article 10.2(1).

RTICLE 10.5

(Suspension by judicial proceedings)

(1) The running of the limitation period is suspended

(a) when the obligee performs any act, by commencing judicial proceedings or in

judicial proceedings already instituted, that is recognised by the law of the court as

asserting the obligee’s right against the obligor;

(b) in the case of the obligor’s insolvency when the obligee has asserted its rights

in the insolvency proceedings; or

when the obligee has asserted its rights in the dissolution proceedings.

(2) Suspension lasts until a final decision has been issued or until the proceedings

have been otherwise terminated.

RTICLE 10.6

(Suspension by arbitral proceedings)

(1) The running of the limitation period is suspended when the obligee performs

any act, by commencing arbitral proceedings or in arbitral proceedings already

instituted, that is recognised by the law of the arbitral tribunal as asserting the obligee’s

right against the obligor. In the absence of regulations for arbitral proceedings or

provisions determining the exact date of the commencement of arbitral proceedings, the

proceedings are deemed to commence on the date on which a request that the right in

dispute should be adjudicated reaches the obligor.

(2) Suspension lasts until a binding decision has been issued or until the

proceedings have been otherwise terminated.

RTICLE 10.7

(Alternative dispute resolution)

The provisions of Articles 10.5 and 10.6 apply with appropriate modifications to

other proceedings whereby the parties request a third person to assist them in their

attempt to reach an amicable settlement of their dispute.

RTICLE 10.8

(Suspension in case of force majeure, death or incapacity)

(1) Where the obligee has been prevented by an impediment that is beyond its

control and that it could neither avoid nor overcome, from causing a limitation period to

cease to run under the preceding Articles, the general limitation period is suspended so

as not to expire before one year after the relevant impediment has ceased to exist.

(2) Where the impediment consists of the incapacity or death of the obligee or

obligor, suspension ceases when a representative for the incapacitated or deceased party

or its estate has been appointed or a successor has inherited the respective party’s

position. The additional one-year period under paragraph (1) applies accordingly.

RTICLE 10.9

(Effects of expiration of limitation period)

(1) The expiration of the limitation period does not extinguish the right.

UNIDROIT Principles 2016

(2) For the expiration of the limitation period to have effect, the obligor must

assert it as a defence.

(3) A right may still be relied on as a defence even though the expiration of the

limitation period for that right has been asserted.

RTICLE 10.10

(Right of set-off)

The obligee may exercise the right of set-off until the obligor has asserted the

expiration of the limitation period.

RTICLE 10.11

(Restitution)

Where there has been performance in order to discharge an obligation, there is no

right of restitution merely because the limitation period has expired.

CHAPTER 11 — PLURALITY OF OBLIGORS AND OF OBLIGEES

SECTION 1: PLURALITY OF OBLIGORS

RTICLE 11.1.1

(Definitions)

When several obligors are bound by the same obligation towards an obligee:

(a) the obligations are joint and several when each obligor is bound for the whole

obligation;

(b) the obligations are separate when each obligor is bound only for its share.

RTICLE 11.1.2

(Presumption of joint and several obligations)

When several obligors are bound by the same obligation towards an obligee, they

are presumed to be jointly and severally bound, unless the circumstances indicate

otherwise.

RTICLE 11.1.3

(Obligee’s rights against joint and several obligors)

When obligors are jointly and severally bound, the obligee may require performance

from any one of them, until full performance has been received.

RTICLE 11.1.4

(Availability of defences and rights of set-off)

A joint and several obligor against whom a claim is made by the obligee may assert

all the defences and rights of set-off that are personal to it or that are common to all the

co-obligors, but may not assert defences or rights of set-off that are personal to one or

several of the other co-obligors.

RTICLE 11.1.5

(Effect of performance or set-off)

Performance or set-off by a joint and several obligor or set-off by the obligee against

one joint and several obligor discharges the other obligors in relation to the obligee to

the extent of the performance or set-off.

UNIDROIT Principles 2016

ARTICLE 11.1.6

(Effect of release or settlement)

(1) Release of one joint and several obligor, or settlement with one joint and

several obligor, discharges all the other obligors for the share of the released or settling

obligor, unless the circumstances indicate otherwise.

(2) When the other obligors are discharged for the share of the released obligor,

they no longer have a contributory claim against the released obligor under Article

11.1.10.

RTICLE 11.1.7

(Effect of expiration or suspension of limitation period)

(1) Expiration of the limitation period of the obligee’s rights against one joint and

several obligor does not affect:

(a) the obligations to the obligee of the other joint and several obligors; or

(b) the rights of recourse between the joint and several obligors under Article

11.1.10.

(2) If the obligee initiates proceedings under Articles 10.5, 10.6 or 10.7 against

one joint and several obligor, the running of the limitation period is also suspended

against the other joint and several obligors.

RTICLE 11.1.8

(Effect of judgment)

(1) A decision by a court as to the liability to the obligee of one joint and several

obligor does not affect:

(a) the obligations to the obligee of the other joint and several obligors; or

(b) the rights of recourse between the joint and several obligors under Article

11.1.10.

(2) However, the other joint and several obligors may rely on such a decision,

except if it was based on grounds personal to the obligor concerned. In such a case, the

rights of recourse between the joint and several obligors under Article 11.1.10 are

affected accordingly.

RTICLE 11.1.9

(Apportionment among joint and several obligors)

As among themselves, joint and several obligors are bound in equal shares, unless

the circumstances indicate otherwise.

RTICLE 11.1.10

(Extent of contributory claim)

A joint and several obligor who has performed more than its share may claim the

excess from any of the other obligors to the extent of each obligor’s unperformed share.

RTICLE 11.1.11

(Rights of the obligee)

(1) A joint and several obligor to whom Article 11.1.10 applies may also exercise

the rights of the obligee, including all rights securing their performance, to recover the

excess from all or any of the other obligors to the extent of each obligor’s unperformed

share.

(2) An obligee who has not received full performance retains its rights against the

co-obligors to the extent of the unperformed part, with precedence over co-obligors

exercising contributory claims.

UNIDROIT Principles 2016

ARTICLE 11.1.12

(Defences in contributory claims)

A joint and several obligor against whom a claim is made by the co-obligor who has

performed the obligation:

(a) may raise any common defences and rights of set-off that were available to be

asserted by the co-obligor against the obligee ;

(b) may assert defences which are personal to itself ;

several of the other co-obligors.

RTICLE 11.1.13

(Inability to recover)

If a joint and several obligor who has performed more than that obligor’s share is

unable, despite all reasonable efforts, to recover contribution from another joint and

several obligor, the share of the others, including the one who has performed, is

increased proportionally.

ECTION 2: PLURALITY OF OBLIGEES

RTICLE 11.2.1

(Definitions)

When several obligees can claim performance of the same obligation from an

obligor:

(a) the claims are separate when each obligee can only claim its share;

(b) the claims are joint and several when each obligee can claim the whole

performance;

ARTICLE 11.2.2

(Effects of joint and several claims)

Full performance of an obligation in favour of one of the joint and several obligees

discharges the obligor towards the other obligees.

RTICLE 11.2.3

(Availability of defences against joint and several obligees)

(1) The obligor may assert against any of the joint and several obligees all the

defences and rights of set-off that are personal to its relationship to that obligee or that it

can assert against all the co-obligees, but may not assert defences and rights of set-off

that are personal to its relationship to one or several of the other co-obligees.

(2) The provisions of Articles 11.1.5, 11.1.6, 11.1.7 and 11.1.8 apply, with

appropriate adaptations, to joint and several claims.

RTICLE 11.2.4

(Allocation between joint and several obligees)

(1) As among themselves, joint and several obligees are entitled to equal shares,

unless the circumstances indicate otherwise.

(2) An obligee who has received more than its share must transfer the excess to

the other obligees to the extent of their respective shares.