CHAPTER 8: NON-PERFORMANCE AND REMEDIES IN GENERAL
Article 8:101 (ex art. 3.101): Remedies Available
(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.
(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.
(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.
Article 8:102 (ex art. 3.102): Cumulation of Remedies
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.
Article 8:103 (ex art. 3.103): Fundamental Non-Performance
A non-performance of an obligation is fundamental to the contract if:
(a) strict compliance with the obligation is of the essence of the contract; or
(b) 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
(c) the non-performance is intentional and gives the aggrieved party
reason to believe that it cannot rely on the other party's future performance.
Article 8:104 (ex art. 3.104): Cure by Non-Performing Party
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.
Article 8:105 (ex art. 3.105): Assurance of Performance
(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.
(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.
Article 8:106 (ex art. 3.106): Notice Fixing Additional Period for Performance
(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.
(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.
(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.
Article 8:107 (ex art. 3.107) Performance Entrusted to Another
A party who entrusts performance of the contract to another person remains
responsible for performance.
Article 8:108 (ex art 3.108): Excuse Due to an Impediment
(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.
(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.
(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.
Article 8:109 (ex 3.109): Clause Limiting or Excluding Remedies
Remedies for non-performance may be excluded or restricted unless it would
be contrary to good faith and fair dealing to invoke the exclusion or restriction.