The Application of the Hardship Theory

AuthorAniela Suditu
European Integration -
The Ap
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
pointing out certain differences b
changed circumstanc
1. Introduction
the Roman Law, if contractual
sunt servanda could be eluded. I
party, he was no longer bound to
fault in performing the contract.
Despite these exemptions, the fo
formalism, converge towards the
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
Cicero: “
si glaudium apud te sana ment
lities and Perspectives
Application of the Hardship Theory
Aniela Suditu
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
-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,
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
towards the modern
adigm of the hardship
plication of the equity
l power. Between these
t could be solved only
application of the law
cium non reddere”

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