The Application of the Hardship Theory

• Author: Aniela Suditu
• Pages: 46-54

European Integration -

Realiti

46

The Ap

Abstract:

This paper presents a

Art.8:108 PECL and Art. 7.1.7 U

the article is to analyze the possi

in order to release a party from

contract. The paper begins with

contract, in connection with t he

of circumstances only by the par

consequences of th e app

lication

pointing out certain differences b

Keywords:

changed circumstanc

1. Introduction

In

the Roman Law, if contractual

sunt servanda could be eluded. I

party, he was no longer bound to

fault in performing the contract.

1

Despite these exemptions, the fo

formalism, converge towards the

Nevertheles

s, if the burdensome

invoke the clausula rebus sic st

provision according to which the

The Canonic Law was actuall

perspective of contractual dynam

theory was the dichotomy just

principle by the Church and the le

two concepts a concrete-

abstract c

The constant incons

istency of th

through a juridical artifice: a con

1

Cicero: “

si glaudium apud te sana ment

lities and Perspectives

Application of the Hardship Theory

Aniela Suditu

aniela.suditu@yahoo.com

s an analytical view of the concept o f hardship as described

7 UNIDROIT Principles, in contrast with certain legal system

ssibility of applying

the provisions on hardship from the UNID

om its contractual obligations although the CISG is the gove

ith the demarcation of the principle of pacta sunt servanda,

e concept of hardship, thus being avoided the burden bearing

party on which it falls. The paper goes on to describe the requ

ion of hardship according to the above mentioned internati

s between four important legal systems.

ances; rebus sic stantibus; frustration; impracticability

ual performance became impossible for both partie

. In the same manner, if performance became imp

to fulfill his obligations as l

ong as he proved the l

founding principles of Roman law, the sanctity of

he rejection of the hardship theory.

me obligation could be fulfilled, thus not being im

stantibus. It was considered that the contract co

he main elements of the contract had t

o remain unch

ally the one that accomplished the transition t

namics. The starting point in founding the paradi

st

-legal. The just conc

ept represented the applic

e legal concept corresponded to the governmental p

ct correspondence or individual

-

general one was est

f these legal concepts generated a paradox that co

contractual mechanism that would guarantee the ap

ente deposuerit, repetat insamens, reddere peccatum sit,

officiu

2011

ed in Art.79 CIS G,

ems. The purpose of

IDROIT Principles

overning law of the

a, or s

anctity of the

ing of such a change

equirements and the

ational instruments,

ties, the principle pacta

mpossible only for one

e lack of negligence or

of the contract and the

impossible, one could

contained an implicit

nchanged.

towards the modern

adigm of the hardship

plication of the equity

l power. Between these

established.

t could be solved only

application of the law

cium non reddere”

.