Changed Circumstances as Ground for Non-Performance of Contracts (An Overview of Macedonian Contract Law)

Year 2017, Volume: 2 Issue: 1, 22 - 25, 25.02.2017

Faton Shabani

https://izlik.org/JA37KX37YF

Abstract

The
purpose for which parties enter into a contractual relationship is to create
relevant rights and obligations, which means that the interest of these parties
is that the created obligations must be performed as agreed. As such, this
purpose is supported since Roman law, through the principle of pacta sunt servanda. This principle
meant that a party to the agreement is responsible for non-performance, while
not entering into the reasons, respectively to the nature of the impediments
that led to that non-performance. However, the case law quickly proved that the
implementation of this principle frequently charging the party with
responsibility for which it cannot really be responsible. After the conclusion
of the contract but before the contract is performed a party’s situation may
change due to changed circumstances, change that make it impossible or
excessively difficult to perform for any of the parties. Which means, the
situation and circumstances have changed since the moment of signing the
contract, that the parties would not have entered into the contract, or would
have made it differently had they known what was going to happen. This paper
examines exclusion of party’s liability due to changed circumstances by
provisions in the Law on Obligations of the Republic of Macedonia. The review
includes the conditions that must be met to consider as changed circumstances,
the obligation to give notice to the other party, and excluding the possibility
of invoking the changed circumstances.

Keywords

changed circumstances

References

• [1]. Lindström, Niklas. “Changed Circumstances and Hardship in the International Sale of Goods“, Nordic Journal of Commercial Law (2006/1).
• [2]. Schwenzer, Ingeborg. “Force Majeure and Hardship in International Sales Contracts“, 39 Victoria University of Wellington Law Review.
• [3]. Law on Obligations of the Republic of Macedonia, No. 18/2001. Amended by the Law amending the Law on Obligations, Official Gazette, No. 4/2002, No. 5/2003, No. 84/2008, No. 81/2009, No. 161/2009. Decision of the Constitutional Court of Republic of Macedonia, No. 121/2001, No. 78/2001, No. 67/2002, No. 59/2002.
• [4]. Vogenauer, Stefan, Jan Kleinheisterkamp. Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC), New York: Oxford University Press, 2009.
• [5]. Schlechtriem, Peter, Ingeborg Schwenzer. Commentary on the UN Convention on the International Sale of Goods (CISG), second edition, New York: Oxford University Press, 2005.
• [6]. Enderlein, Fritz, Dietrich Maskow. International Sales Law: United Nations Convention on Contracts for the International Sale of Goods : Convention on the Limitation Period in the International Sale of Goods (Commentary), New York: Oceana Publications, 1992.
• [7]. Huber, Peter, Alastair Mullis. The CISG: A New Textbook for Students and Practitioners, München: Sellier European Law Publishers, 2007.
• [8]. Bianca, Cesare M., Michael J. Bonell. Commentary on the Internacional Sales Law, Milan: Giuffrè, 1987.