Pacta Sunt Servanda – A Maxim and Its Exceptions in Comparative Perspective

Normann Witzleb (ed), Contract Law in Changing Times: Asian Perspectives on Pacta Sunt Servanda (Routledge, 2023)

The Chinese University of Hong Kong Faculty of Law Research Paper No. 2022-49

23 Pages Posted: 3 Jan 2023

See all articles by Normann Witzleb

Normann Witzleb

Monash University - Faculty of Law; The Chinese University of Hong Kong

Date Written: September 2, 2023

Abstract

This conclusionary chapter summarises and highlights themes that are emerging from the chapters collated in the book Contract Law in Changing Times: Asian Perspectives on Pacta Sunt Servanda (Routledge, 2023). This collection of essays provides a rich array of materials demonstrating the continued vitality and strength of the principle of pacta sunt servanda. Yet, it is also clear that circumstances can arise when unstinting insistence on performance and execution of an agreement can cause hardship and unfairness.

The scope and strength of the pacta sunt servanda principle applies are not immutable. A number of doctrines, including impossibility, frustration, change of circumstance and force majeure, illegality as well as rights of withdrawal, create exceptions to the binding power of contracts. This chapter submits that the limits of the principle should be determined by taking into account not only the circumstances that exist between the parties, but also reflect community expectations on the appropriate balance between contractual stability and flexibility.

The hardship created by the COVID-19 pandemic has raised new challenges for the notion of the binding force of contracts. The authors in this collection make the common observation that courts across East Asia have so far resisted the temptation of softening the pacta principle. As more litigation makes its way through the courts systems, welcome judicial guidance can be expected to emerge. It would be a fruitful area of research to scrutinise these future developments in the case law, and to contrast and evaluate the approaches in future cross-jurisdictional comparisons.

Keywords: contract law, pacta sunt servanda, international law, comparative law, Asian law, contract remedies

JEL Classification: K12, K33

Suggested Citation

Witzleb, Normann and Witzleb, Normann, Pacta Sunt Servanda – A Maxim and Its Exceptions in Comparative Perspective (September 2, 2023). Normann Witzleb (ed), Contract Law in Changing Times: Asian Perspectives on Pacta Sunt Servanda (Routledge, 2023), The Chinese University of Hong Kong Faculty of Law Research Paper No. 2022-49, Available at SSRN: https://ssrn.com/abstract=4316202 or http://dx.doi.org/10.2139/ssrn.4316202

Normann Witzleb (Contact Author)

The Chinese University of Hong Kong ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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