Europe

Article 7.103 - Early performance see also Mandatory Obligations

A party may decline a tender of performance made before it is due except where acceptance of the tender would not unreasonably prejudice its interests. 367

• A party's acceptance of early performance does not affect the time fixed for the performance of its own obligation. 368

Article 7.104 - Order of performance 369 see also Mandatory Obligations

To the extent that the performances of the parties can be rendered simultaneously, the parties are bound to render them simultaneously unless the circumstances indicate otherwise. 370

Article 7.106 (ex art. 2.116) - Performance by a Third Person 376 see also Mandatory Obligations parties

1. Except where the contract requires personal performance the obligee cannot refuse performance by a third person if: 377

• the third person acts with the assent of the obligor; or 378
• the third person has a legitimate interest in performance and the obligor has failed to perform or it is clear that it will not perform at the time performance is due. 379

2. Performance by the third person in accordance with paragraph (1) discharges the obligor. 380

CHAPTER 8 - NON-PERFORMANCE AND REMEDIES IN GENERAL 413

Article 8.101 (ex art. 3.101) - Remedies Available 414

1. Whenever a party does not perform an obligation under the contract and the non- performance is not excused under Article 8.108, the aggrieved party may resort to any of the remedies set out in Chapter 9. 415

2. Where a party's non-performance is excused under Article 8.108, the aggrieved party may resort to any of the remedies set out in Chapter 9 except claiming performance and damages. 416

3. A party may not resort to any of the remedies set out in Chapter 9 to the extent that its own act caused the other party's non-performance. 417

Article 8.102 (ex art. 3.102) - Cumulation of Remedies 418

Remedies which are not incompatible may be cumulated. In particular, a party is not deprived of its right to damages by exercising its right to any other remedy. 419

Article 8.103 (ex art. 3.103) - Fundamental Non-Performance 420

A non-performance of an obligation is fundamental to the contract if: 421

• strict compliance with the obligation is of the essence of the contract; or 422
• the non-performance substantially deprives the aggrieved party of what it was entitled to expect under the contract, unless the other party did not foresee and could not reasonably have foreseen that result; or 423
• the non-performance is intentional and gives the aggrieved party reason to believe that it cannot rely on the other party's future performance. 424

  Article 8.104 (ex art. 3.104) - Cure by Non-Performing Party 425

  A party whose tender of performance is not accepted by the other party because it does not conform to the contract may make a new and conforming tender where the time for performance has not yet arrived or the delay would not be such as to constitute a fundamental non-performance. 426

  Article 8.105 (ex art. 3.105) - Assurance of Performance 427

  1. A party who reasonably believes that there will be a fundamental non- performance by the other party may demand adequate assurance of due performance and meanwhile may withhold performance of its own obligations so long as such reasonable belief continues. 428

  2. Where this assurance is not provided within a reasonable time, the party demanding it may terminate the contract if it still reasonably believes that there will be a fundamental non-performance by the other party and gives notice of termination without delay. 429

  Article 8.106 (ex art. 3.106) - Notice Fixing Additional Period for Performance 430 see also Termination

  1. In any case of non-performance the aggrieved party may by notice to the other party allow an additional period of time for performance. 431

  2. During the additional period the aggrieved party may withhold performance of its own reciprocal obligations and may claim damages, but it may not resort to any other remedy. If it receives notice from the other party that the latter will not perform within that period, or if upon expiry of that period due performance has not been made, the aggrieved party may resort to any of the remedies that may be available under Chapter 9. 432

  3. If in a case of delay in performance which is not fundamental the aggrieved party has given a notice fixing an additional period of time of reasonable length, it may terminate the contract at the end of the period of notice. The aggrieved party may in its notice provide that if the other party does not perform within the period fixed by the notice the contract shall terminate automatically. If the period stated is too short, the aggrieved party may terminate, or, as the case may be, the contract shall terminate automatically, only after a reasonable period from the time of the notice. 433

  Article 8.108 (ex art 3.108) - Excuse Due to an Impediment 436 see also Termination

  1. A party's non-performance is excused if it proves that it is due to an impediment beyond its control and that it could not reasonably have been expected to take the impediment into account at the time of the conclusion of the contract, or to have avoided or overcome the impediment or its consequences. 437

  2. Where the impediment is only temporary the excuse provided by this article has effect for the period during which the impediment exists. However, if the delay amounts to a fundamental non-performance, the obligee may treat it as such. 438

  3. The non-performing party must ensure that notice of the impediment and of its effect on its ability to perform is received by the other party within a reasonable time after the non-performing party knew or ought to have known of these circumstances. The other party is entitled to damages for any loss resulting from the non-receipt of such notice. 439

  Section 2 - Right To Withhold Performance 459

  Article 9.201 (ex art 4.201) - Right to Withhold Performance 460 see also Termination

  1. A party who is to perform simultaneously with or after the other party may withhold performance until the other has tendered performance or has performed. The first party may withhold the whole of its performance or a part of it as may be reasonable in the circumstances. 461

  2. A party may similarly withhold performance for as long as it is clear that there will be a non-performance by the other party when the other party's performance becomes due. 462