Hardship and Modification (or 'Revision') of the Contract

Mekki, Mustapha; Pelese, Martine Kloepfer

doi:10.2139/ssrn.1542511

Cited by 2 publications

(5 citation statements)

References 8 publications

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“…However, the fact that some countries admit a mechanism that allows to modify or extinguish contracts in case of hardship (civil law) and others reject (common law) can be detrimental to the economic competitiveness and to the quality/seriousness of payers and contractual fairness 790 . Even if common law parties generally conclude very long and detailed contracts in order to comprise all possible hardship scenarios 791 , there will inevitably be situations that fall outside all parties' predictability horizon (the human cognitive capacity to foresee the future is limited) and that will strongly impact performance, although not making such performance impossible or completely frustrated.…”

Section: Necessary Cut-offmentioning

confidence: 99%

“…By doing so, the rules stand on a middle ground where, on the one hand, are not so vague as to cause instability and swallow pacta sunt servanda, but, on the other hand, are not so narrow as to the point of preventing its application 926 . Additionally, some degree of vagueness in the provisions' wording was important to incorporate the differences among legal systems 927 .…”

Section: Hardshipmentioning

confidence: 99%

“…The common law countries still do not adopt hardship as a legal concept and are very reluctant to apply the analysed provisions 941 . Since these international instruments also provide for the discharge of obligations due to impossibility -a narrower situation encompassing even not physically impossible situations -, the common law lawyers will mostly resort to these set of rules and not to the hardship ones, which are clearly civil law inspired 942 .…”

Section: Hardshipmentioning

confidence: 99%

“…Conceptually though, in accordance with both doctrines, the contract is understood as a place where the parties' risks are attributed, and they can only be exempted from this attribution in very exceptional circumstances. Both are conceived to be a "last resort" remedy, when alternatives and negotiation attempts fail and, therefore, they were also conceived in a manner to prevent abuse from the parties 1100 . Both have a common normative basis that might be described as a desire to do what is fair 1101 .…”

Section: Hardshipmentioning

confidence: 99%

“…1107 pressure for the performance of a contract under circumstances not contemplated by the parties and whose results do not address their true intent would mean a disruption to the party autonomy and not its protection. Respecting the parties' intent, the equilibrium initially contracted, is also a way to protect party autonomy and the binding nature of the contracts 1111 and is contemplated by both doctrines.…”

Section: Hardshipmentioning

confidence: 99%

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Challenges and solutions for the harmonisation of contract law within the BRICS countries. Invalidity of contracts and hardship

Veronese

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from the Gästehaus der Universität Hamburg, for providing me with a real home in Hamburg, and for doing everything within their control to make my stay at the Institute possible despite all the restrictions imposed to those coming from Brazil.In the personal sphere, I could not achieve this goal without the help, trust, love and friendship I received from several people to whom I want to thank. My mother, Lia Aparecida Espolaor, for being my biggest inspiration in life, for her unbelievable strength in hard times and for always believing in me and showing me the best way to handle things, from the most basic to the most challenging situations. My boyfriend, Victor Hugo Callejón Avallone, for being my true hero during these tough times, giving me everyday support, strength and love, even during the period where we were at a long distance and also whilst facing some of the most difficult moments of his life. My sister, Lívia Espolaor Veronese, for being my precious company during my most lonely mornings and days in Europe, for making everything possible to be personally with me when I needed the most, and for always stimulating me to achieve my goals. My sister, Lara Espolaor Veronese, for the support, love and for taking care of our mother and house when I was away. My father, Amauri Veronese, for all the love and support even with the distance. My grandmother Ariadne Simões Espolaor, who, at the age of 87 years old, could have time and patience to send me a warming message every single day when I was outside Brazil. My parents-in-law Hugo Walter Bormioli Avallone and Claudia de Lourdes Abduch Callejón Avallone, thank you for being my second family and sending me strength and confidence to carry out this enterprise.I am also grateful to several friends that followed me during this long and tough journey. My dearest friends Jessica de Assis Silva, Vanessa Costa and Amanda Federico Lopes Fernandes, who accompanied me during my achievements, joys and also sorrows, and who gave me the attention and motivation to keep moving towards my goals. Special thanks to my true friends I made during the post-graduation period at the

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Section: Necessary Cut-offmentioning

confidence: 99%

Section: Hardshipmentioning

confidence: 99%

Section: Hardshipmentioning

confidence: 99%

Section: Hardshipmentioning

confidence: 99%

Section: Hardshipmentioning

confidence: 99%

See 3 more Smart Citations