ro fr
universul juridic magazin
Revista Română de Drept Privat

Unjustified non-performance and wrongful non-performance. Brief correlation exercise

This study will show that contractual remedies are consequence of the nonperformance of obligations without just cause and that their immediate purpose is to place the creditor either in the balanced situation he would have enjoyed had the debtor performed his obligations, or in the balanced situation the creditor would have enjoyed if he had not concluded the agreement, and which have as an immediate purpose – if still possible and desirable – to mobilize the debtor to voluntarily perform his obligations. Closely related to the notion of remedy, it shall be demonstrated that contractual liability is but one of the common law contractual remedies and, hence, it does not designate all possible contractual remedies. Thus, (a) contractual liability only designates the remedies aiming at repairing the prejudice caused, i.e. only the remedies tending towards one of the two balance conditions the creditor faces strictly in patrimonial terms; (b) forced in-kind performance is not a form of contractual liability; (c) termination is not a form of contractual liability; (d) contractual liability designates both the institution of the performance by equivalent and the institution of damages accompanying termination; (e) the two components of contractual liabilities are different because they concern the remedy of different prejudices. However, the scope of remedies available to the creditor is not the same, regardless of the type of non-performance; the cases of non-performance fall under three categories: justified non-performance, unjustified non-performance without default (only possible in the case of typical result obligations) and, finally, wrongful non-performance, each of these categories having their specific legal regimes. Justified non-performance excludes all remedies, wrongful non-performance offers, in principle, the access to the entire range of remedies, while unjustified non-performance without default only opens the way towards certain remedies. Hence, it shall be illustrated that, in general, contractual liability is conditioned by default, but that, in certain cases, it can also be encountered in the case of unjustified non-performance without default. The in-kind performance is not conditioned by default (or by the existence of a prejudice, as it is not a form of contractual liability). Similarly, termination is not conditioned by default either, as the termination of the agreement pursuant to the application of risk rules is, in principle, a form of termination. This remark has important implications in the situations of non-performance determined by force majeure, in its widest meaning, which do not fall under the scope risk-related agreement termination. Thus, termination can intervene in the case of partial, temporary fortuitous non-performance, or that concern non-critical obligations.