Europe

Article 4.106 (ex art. 6.106) - Incorrect information 226

A party who has concluded a contract relying on incorrect information given it by the other party may recover damages in accordance with Article 4.117(2) and (3) even if the information does not give rise to a right to avoid the contract on the ground of mistake under Article 4.103, unless the party who gave the information had reason to believe that the information was correct. 227

Article 4.109 (ex art. 6.109) - Excessive benefit or unfair advantage 241

1. A party may avoid a contract if, at the time of the conclusion of the contract: 242

• it was dependent on or had a relationship of trust with the other party, was in economic distress or had urgent needs, was improvident, ignorant, inexperienced or lacking in bargaining skill, and 243
• the other party knew or ought to have known of this and, given the circumstances and purpose of the contract, took advantage of the first party's situation in a way which was grossly unfair or took an excessive benefit. 244

2. Upon the request of the party entitled to avoidance, a court may if it is appropriate adapt the contract in order to bring it into accordance with what might have been agreed had the requirements of good faith and fair dealing been followed. 245

3. A court may similarly adapt the contract upon the request of a party receiving notice of avoidance for excessive benefit or unfair advantage, provided that this party informs the party who gave the notice promptly after receiving it and before that party has acted in reliance on it. 246

Article 4.112 (ex art. 6.112) - Notice of Avoidance 266

Avoidance must be by notice to the other party. 267

Article 4.113 (ex art. 4.113) - Time limits 268

1. Notice of avoidance must be given within a reasonable time, with due regard to the circumstances, after the avoiding party knew or ought to have known of the relevant facts or became capable of acting freely. 269

2. However, a party may avoid an individual term under Article 4.110 if it gives notice of avoidance within a reasonable time after the other party has invoked the term. 270

Article 4.114 (ex art. 6.114) - Confirmation 271

If the party who is entitled to avoid a contract confirms it, expressly or impliedly, after it knows of the ground for avoidance, or becomes capable of acting freely, avoidance of the contract is excluded. 272

Article 4.115 (ex art. 6.116) - Effect of avoidance 273

On avoidance either party may claim restitution of whatever he has supplied under the contract or the part of it avoided, provided he makes concurrent restitution of whatever he has received under the contract or the part of it avoided. If restitution cannot be made in kind for any reason, a reasonable sum must be paid for what has been received. 274

Article 4.116 (ex art. 6.115) - Partial avoidance 275

If a ground of avoidance affects only particular terms of a contract, the effect of an avoidance is limited to those terms unless, giving due consideration to all the circumstances of the case, it is unreasonable to uphold the remaining contract. 276

Article 4.117 (ex art. 6.117) - Damages 277

1. A party who avoids a contract under this Chapter may recover from the other party damages so as to put the avoiding party as nearly as possible into the same position as if it had not concluded the contract, provided that the other party knew or ought to have known of the mistake, fraud, threat or taking of excessive benefit or unfair advantage. 278

2. If a party has the right to avoid a contract under this Chapter, but does not exercise its right or has lost its right under the provisions of Articles 4.113 or 4.114, it may recover, subject to paragraph (1), damages limited to the loss caused to it by the mistake, fraud, threat or taking of excessive benefit or unfair advantage. The same measure of damages shall apply when the party was misled by incorrect information in the sense of Article 4.106. 279

3. In other respects, the damages shall be in accordance with the relevant provisions of Chapter 9, Section 5, with appropriate adaptations. 280

Article 4.118 (ex. art. 6.118) - Exclusion or restriction of remedies 281

1. Remedies for fraud, threats and excessive benefit or unfair advantage-taking, and the right to avoid an unfair term which has not been individually negotiated, cannot be excluded or restricted. 282

2. Remedies for mistake and incorrect information may be excluded or restricted unless the exclusion or restriction is contrary to good faith and fair dealing. 283

Article 4.119 (ex art. 6.119) - Remedies for non-performance 284

A party who is entitled to a remedy under this Chapter in circumstances which afford that party a remedy for non-performance may pursue either remedy. 285