Contractual Performance, Breach of Contract and Contractual Obligations in Times of Crisis: On the Need for Unification and Codification in European Contract Law

Abstract

The sanctity of contracts, a guiding principle of contract law in civil law systems, requires that both or all contracting parties be expected to meet their contractual obligations, thereby ensuring efficacy and efficiency of private ordering. Under extraordinary circumstances, however, legal systems provide for mechanisms, which may excuse contractual performance or lead to adaption or termination of contractual obligations. Since the coronavirus pandemic, these mechanisms have clearly gained traction. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), this article elaborates on excuses of contractual performance and remedies for breach of contract and on adaption or termination of contractual obligations. The article aims to address the fundamental questions, whether these excuses and remedies and institutions on adaption or termination still serve their purpose in times of pandemic or whether and to what extent a uniform breach of contract action or a codification of such institutions is needed in European Contract Law. A functional and comparative approach is used to unfold and analyse these timeless questions from a contemporary perspective.