terms欧洲合同法原则英文

THE PRINCIPLES OF EUROPEAN CONTRACT LAW

Prepared by the Commision on European Contract Law

2019 text in English

CHAPTER 1 : GENERAL PROVISIONS

Section 1: Scope of the Principles

Article 1: 101: Application of the Principles

(1) These Principles are intended to be applied as general rules of contract lawin the European Union.

(2) These Principles will apply when the parties have agreed to incorporate theminto their contract or that their contract is to be governed by them.

(3) These Principles may be applied when the parties:

(a) h"ave agreed that"their contract is to be governedby"general principles of law",the lex mercatoria or the like; or

(b) have not chosen any system or rules of law to govern their contract.

(4) These Principles may provide a solution to the issue raised where the systemor rules of law applicable do not do so.

Article 1: 102: Freedom of Contract

(1) Parties are free to enter into a contract and to determine its contents, subjectto the requirements of good faith and fair dealing, and the mandatory rulesestablished by these Principles.

(2) The parties may exclude the application of any of the Principles or derogatefrom or vary their effects, except as otherwise provided by these Principles.Article 1: 103: Mandatory Law

(1) Where the law therwise applicable so allows, the parties may choose to have theircontract governed by the Principles, with the effect that national mandatory rulesare not applicable.

(2) Effect should nevertheless be given to those mandatory rules of national,supranational and international law which, according to the relevant rules of

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private international law, are applicable irrespective of the law governing thecontract.

Article 1: 104: Application to Questions of Consent

(1) The existence andvalidity of the agreement of the parties to adoptor incorporatethese Principles shall be determined by these Principles.

(2) Nevertheless, a party may rely upon the law of the country in which it has itshabitual residence to establish that it did not consent if it appears from thecircumstances that it would not be reasonable to determine the effect of the party’s conduct in accordance with these Principles.

Article 1: 105: Usages and Practices

(1) The parties are bound by any usage to which they have agreed and by any practicethey have established between themselves.

(2) The parties are bound by a usage which would be considered generally applicableby persons in the same situation as the parties, except where the application ofsuch usage would be unreasonable.

Article 1: 106: Interpretation and Supplementation

(1) These Principles should be interpreted and developed in accordance with theirpurposes. In particular, regard should be had to the need to promote good faith andfair dealing, certainty in contractual relationships anduniformity of application.

(2) Issues within the scope of these Principles but not expressly settled by themare so far as possible to be settled in accordance with the ideas underlying thePrinciples. Failing this, the legal system applicable by virtue of the rules ofprivate international law is to be applied.

Article 1: 107 : Application of the Principles by Way of Analogy

These Principles apply with appropriate modifications to agreements to modify orend a contract, to unilateral promises and other statements and conduct indicatingintention.

Section 2: General Duties

Article 1:201: Good Faith and Fair Dealing

(1) Each party must act in accordance with good faith and fair dealing.

(2) The parties may not exclude or limit this duty.

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Article 1:202: Duty to Co-operate

Each party owes to the other a duty to co-operate in order to give full effect tothe contract.

Section 3: Terminology and Other Provisions

Article 1:301: Meaning of Terms

In these Principles, except where the context otherwise requires:

(1) ‘act’ includes omission;

(2) ‘court’ includes arbitral tribunal;

(3) an ‘intentional’ act includes an act done recklessly;

(4) ‘non-performance’ denotes any failure to perform an obligation under thecontract, whether or not excused, and includes delayed performance, defectiveperformance and failure to co-operate in order to give full effect to the contract.

(5) a matter is ‘material’ if it is one which a reasonable person in the samesituation as one party ought to have known would influence the other party in itsdecision whether to contract on the proposed terms or to contract at all ;

(6) ‘written’ statements include communications made by telegram, telex, telefaxand electronic mail and other means of communication capable of providing a readablerecord of the statement on both sides

Article 1:302: Reasonableness

Under thesePrinciples reasonableness is tobe judgedbywhat persons acting ingoodfaith and in the same situation as the parties would consider to be reasonable. Inparticular, in assessing what is reasonable the nature and purpose of the contract,the circumstances of the case, and the usages and practices of the trades orprofessions involved should be taken into account.

Article 1:303: Notice

(1) Any notice maybe givenby any means, whether inwriting orotherwise, appropriateto the circumstances.

(2) Subject to paragraphs (4) and (5) , any notice becomes effective when it reachesthe addressee.

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(3) A notice reaches the addressee when it is delivered to it or to its place ofbusiness or mailing address, or, if it does not have a place of business or mailingaddress, to its habitual residence

(4) If one party gives notice to the other because of the other' s non-performanceor because such non-performance is reasonably anticipated by the first party, andthe notice is properly dispatchedor given, adelay orinaccuracy in the transmissionof the notice or its failure to arrive does not prevent it from having effect. Thenotice shall have effect from the time at which it would have arrived in normalcircumstances.

(5) A notice has no effect if a withdrawal of it reaches the addressee before orat the same time as the notice.

(6) In this Article, 'notice' includes the communication of a promise, statement,offer, acceptance, demand, request or other declaration.

Article 1:304: Computation of Time

(1) A period of time set by a party in a written document for the addressee to replyor take other action begins to run from the date stated as the date of the document.If no date is shown, the period begins to run from the moment the document reachesthe addressee.

(2) Official holidays and official non-working days occurring during the period areincluded in calculating the period. However, if the last day of the period is anofficial holiday or official non-working day at the address of the addressee, orat the place where a prescribedact is to be performed, the period is extended untilthe first following working day in that place.

(3) Periods of time expressed in days, weeks, months or years shall begin at 00.00on the next day and shall end at 24.00 on the last day of the period; but any replythat has to reach the party who set the period must arrive, or other act which isto be done must be completed, by the normal close of business in the relevant placeon the last day of the period.

Article 1:305: Imputed Knowledge and Intention

If any person who with a party' s assent was involved in making a contract, or whowas entrusted with performance by a party or performed with its assent:(a) knew or foresaw a fact, or ought to have known or foreseen it; or

(b) acted intentionally or with gross negligence, or not in accordance with goodfaith and fair dealing,

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this knowledge, foresight or behaviour is imputed to the party itself.

CHAPTER 2 : FORMATION

Section 1 : General Provisions

Article 2: 101: Conditions for the Conclusion of a Contract

(1) A contract is concluded if:

(a) the parties intend to be legally bound, and

(b) they reach a sufficient agreementwithout any further requirement.

(2) A contract need not be concluded or evidenced in writing nor is it subject toany other requirement as to form. The contract may be proved by any means, includingwitnesses.

Article 2: 102: Intention

The intention of a party to be legally bound by contract is to be determined fromthe party' s statements or conduct as they were reasonably understood by the otherparty.

Article 2: 103: Sufficient Agreement

(1) There is sufficient agreement if the terms:

(a) have been sufficientlydefinedbythe parties sothat thecontract canbe enforced,or

(b) can be determined under these Principles.

(2) However, if one of the parties refuses to conclude acontract unless the partieshave agreed on some specific matter, there is no contract unless agreement on thatmatter has been reached.

Article 2: 104: Terms Not Individually Negotiated

(1) Contract terms whichhave notbeen individually negotiatedmaybe invoked againsta party who did not know of them only if the party invoking them took reasonablesteps to bring them to the other party' s attention before or when the contract wasconcluded.

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(2) Terms are not brought appropriately to a party' s attention by a mere referenceto them in a contract document, even if that party signs the document.

Article 2: 105: Merger Clause

(1) If a written contract contains an individually negotiated clause stating thatthe writing embodies all the terms of the contract (a merger clause) , any priorstatements, undertakings or agreements which are not embodied in the writing do notform part of the contract.

(2) If the merger clause is not individually negotiated it will only establish apresumption that the parties intended that their prior statements, undertakings oragreements were not to form part of the contract. This rule may not be excluded orrestricted.

(3) The parties' prior statements may be used to interpret the contract. This rulemay not be excluded or restricted except by an individually negotiated clause.

(4) A party may by its statements or conduct be precluded from asserting a mergerclause to the extent that the other party has reasonably relied on them.Article 2: 106: Written Modification Only

(1) A clause in awritten contract requiring anymodification or ending by agreementto be made in writing establishes only a presumption that an agreement to modifyor end the contract is not intended to be legally bindingunless it is in writing.

(2) Apartymayby its statements orconduct be precluded fromassertingsuch a clauseto the extent that the other party has reasonably relied on them.

Article 2: 107: Promises Binding without Acceptance

A promise which is intended to be legally binding without acceptance is binding.

Section 2 : Offer and Acceptance

Article 2:201: Offer

(1) A proposal amounts to an offer if:

(a) it is intended to result in a contract if the other party accepts it, and(b) it contains sufficiently definite terms to form a contract.

(2) An offer may be made to one or more specific persons or to the public.

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(3) A proposal to supply goods or services at stated prices made by a professionalsupplier in a public advertisement or a catalogue, or by a display of goods, ispresumed to be a'n offer to sell or supply at that price until the stock of goods,or the supplier s capacity to supply the service, is exhausted.

Article 2:202: Revocation of an Offer

(1) An offer may be revoked if the revocation reaches the offeree before it hasdispatched its acceptance or, in cases of acceptance by conduct, before the contracthas been concluded under Article 2:205(2) or (3) .

(2) An offer made to the public can be revoked by the same means as were used tomake the offer.

(3) However, a revocation of an offer is ineffective if:

(a) the offer indicates that it is irrevocable; or

(b) it states a fixed time for its acceptance; or

(c) it was reasonable for the offeree to rely on the offer as being irrevocable andthe offeree has acted in reliance on the offer.

Article 2:203: Rejection

When a rejection of an offer reaches the offeror, the offer lapses. .

Article 2:204: Acceptance

(1) Any form of statement or conduct by the offeree is an acceptance if it indicatesassent to the offer.

(2) Silence or inactivity does not in itself amount to acceptance.

Article 2:205: Time of Conclusion of the Contract

(1) If an acceptance has been dispatched by the offeree the contract is concludedwhen the acceptance reaches the offeror.

(2) In case of acceptance by conduct, the contract is concluded when notice of theconduct reaches the offeror.

(3) If byvirtueof theoffer, of practiceswhich theparties haveestablishedbetweenthemselves, or of a usage, the offeree may accept the offer by performing an actwithout notice to the offeror, the contract is concluded when the performance ofthe act begins.

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Article 2:206: Time Limit for Acceptance

 In order to be effective, acceptance of an offermust reach the offerorwithinthe time fixed by it.

(2) If no time has been fixed by the offeror acceptance must reach it within areasonable time.

(3) In the case of an acceptance by an act of performance under art. 2:205 (3) , thatact must be performed within the time for acceptance fixed by the offeror or, ifno such time is fixed, within a reasonable time.

Article 2:207: Late Acceptance

(1) A late acceptance is nonetheless effective as an acceptance if without delaythe offeror informs the offeree that he treats it as such.

(2) If a letter or otherwriting containing a late acceptance shows that it has beensent in such circumstances that if its transmission had been normal it would havereached the offeror in due time, the late acceptance is effective as an acceptanceunless, without delay, the offeror informs the offeree that it considers its offeras having lapsed.

Article 2:208: Modified Acceptance

(1) A reply by the offeree which states or implies additional or different termswhich would materially alter the terms of the offer is a rejection and a new offer.

(2) A reply which gives adefinite assent to anoffer operates as anacceptance evenif it states or implies additional or different terms, provided these do notmaterially alter the terms of the offer. The additional or different terms thenbecome part of the contract.

(3) However, such a reply will be treated as a rejection of the offer if:(a) the offer expressly limits acceptance to the terms of the offer; or(b) the offeror objects to the additional or different terms without delay; or(c) the offeree makes its acceptance conditional upon the offeror’ s assent to theadditional or different terms, and the assent does not reach the offeree within areasonable time.

Article 2:209: Conflicting General Conditions

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(1) If the parties have reached agreement except that the offer and acceptance referto conflicting general conditions of contract, a contract is nonetheless formed.The general conditions form part of the contract to the extent that they are commonin substance.

(2) However, no contract is formed if one party:

(a) has indicated in advance, explicitly, and not byway of general conditions, thatit does not intend to be bound by a contract on the basis of paragraph (1) ; or(b) without delay, informs the other party that it does not intend to be bound bysuch contract.

(3) General conditions of contract are terms which have been formulated in advancefor an indefinite number of contracts of a certain nature, and which have not beenindividually negotiated between the parties.

Article 2:210: Professional' s Written Confirmation

If professionals have concluded a contract but have not embodied it in a finaldocument, and one without delay sends the other a writing which purports to be aconfirmation of the contract but which contains additional or different terms, suchterms will become part of the contract unless:

(a) the terms materially alter the terms of the contract, or

(b) the addressee objects to them without delay.

Article 2:211: Contracts not Concluded through Offer and Acceptance

The rules in this section applywith appropriate adaptations even though the processof conclusion of a contract cannot be analysed into offer and acceptance.

Section 3: Liability for negotiations

Article 2:301: Negotiations Contrary to Good Faith

(1) Aparty is free to negotiate and is not liable for failure to reach an agreement.

(2) However, a party who has negotiated or broken off negotiations contrary to goodfaith and fair dealing is liable for the losses caused to the other party.

(3) It is contrary to good faith and fair dealing, in particular, for a party toenter into or continue negotiations withno real intention of reaching an agreementwith the other party.

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