Change of Circumstances in European Contract Law – An Approach to the Relevant Issues and Doctrines

Abstract

The principle of pacta sunt servanda is universally recognized. However, the binding nature of the contract is loosened to a certain extent in all legal systems if the circumstances of the contract change fundamentally. As an introduction to a broad comparative analysis of European Contract law, the following article identifies the basic legal issues and doctrines relating to the phenomenon of change of circumstances. In particular, the paper proposes to distinguish between “conventional” doctrines – which derive certain remedies only from the contract itself – and “exceptional” doctrines – which provide relief for the burdened party directly on the basis of the principles of equity. This distinctions is also used to identify two sorts of approaches in the European legal systems: Those jurisdictions that have established a general “exceptional” doctrine specifically addressing the issue of change of circumstances and allowing for an adjustment of the contract are referred to as “open”. “Closed” legal systems, conversely, are those jurisdictions that do not offer such a doctrine.

Keywords: European Contract Law, contract law, comparative law, private law

JEL Classification: K12, K33