Evolving General Principles of International Commercial Contracts: The Unidroit Principles and Favor Contractus

Maastricht Faculty of Law Working Paper Series

Maastricht European Private Law Institute Working Paper No. 2011/07

20 Pages Posted: 10 Feb 2011

See all articles by Nicole Kornet

Nicole Kornet

Maastricht European Private Law Institute (M-EPLI); Maastricht University - METRO Institute; Maastricht University - Faculty of Law

Date Written: February 7, 2011

Abstract

It has been suggested that favor contractus constitutes a basic idea or general principle underlying the Unidroit Principles of International Commercial Contracts (UPICC). This principle aims to preserve the contractual relation by limiting the number of situations in which the existence or validity of the contract is questioned or in which it may be terminated. The focus of this paper is on the interplay between favor contractus and the traditional principles of freedom of contract and pacta sunt servanda. This is done by focusing on two particular problems in international contract practice: the battle of forms and unforeseen changed circumstances (hardship). Addressing these problems is particularly interesting because the UPICC introduce innovative provisions to deal with these situations. Within these innovative provisions, it is possible to detect the underlying idea of favor contractus, in particular the policies to favour the existence of a binding agreement in the context of the battle of forms and to preserve the contractual relation in case of hardship. At the same time, the rules dealing with the battle of forms seem to stretch the traditional rules on contract formation and challenge to a certain degree, the principle of freedom of contract. Likewise, the provisions dealing with hardship tend to clash with the principle of pacta sunt servanda. It is consequently interesting to see how these innovative rules dealing with particular problems relevant to international trade practice lead to the adaptation – or the evolution – of traditional principles of contract law or even the emergence of a new principle.

Keywords: Favor contractus, freedom of contract, pacta sunt servanda, battle of forms, change of circumstances, UNIDROIT Principles of International Commercial Contracts (2004)

Suggested Citation

Kornet, Nicole, Evolving General Principles of International Commercial Contracts: The Unidroit Principles and Favor Contractus (February 7, 2011). Maastricht Faculty of Law Working Paper Series, Maastricht European Private Law Institute Working Paper No. 2011/07, Available at SSRN: https://ssrn.com/abstract=1756751 or http://dx.doi.org/10.2139/ssrn.1756751

Nicole Kornet (Contact Author)

Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

Maastricht University - METRO Institute ( email )

PO Box 616
Maastricht, 6200 MD
Netherlands

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

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