Professional diligence and the UCP Directive

Abstract

This article discusses the concept of professional diligence from a comparative perspective and as part of the unfairness test of art. 5(2) UCP Directive. Diligence refers in civil law jurisdictions to the actions that have to be undertaken in the interest of the creditor, in particular in service contracts or cases of professional liability. This is similar to the implied term of ‘skill and care’ in service contracts in English law. A doctrinal analysis shows how this concept is connected to the distinction between obligations of result vs means, and the judicial control of business practices and professional standards. It is argued that this background may provide guidance to the interpretation and application of art. 5(2) UCP Directive.