Thus, in both systems' contract law, an essential feature of the contractual relationship is the performance of the contract as the principle that pact must be kept is firmly established and considered as the backbone of the contractual relationship. However, a problem could arise if a contract is not properly executed and one party refuses to perform its obligations. In this case the concept of non-performance and the remedies available for the aggrieved party, become relevant and therefore will represent the object of this note, which will try to offer comprehensive analyses of the contractual non performance in the English and the French legal systems, but also will take into account the possible influences of the Principles of European contract Law and further European development in the area of Contract law and assess the solutions offered by those.
Consequently important questions need to be examined such as what the contractual non-performance is in the Civil law legal system of France and the Common law system of England? Is the concept the same under both jurisdictions? In addition one should ask oneself whether the non-performance could be distinguished and how could it be distinguished from concepts such as the breach of contract? What are the remedies available for a party seeking relief because of the non-execution of the contractual obligations of the other party and are they different in both system because of the distinction between Civil and Common Law? Moreover, one should not neglect texts such as the Principles of European Contract Law (hereinafter referred to as the PECL), which could offer a new perspective of the concept of non-performance and the remedies available to the suffering party? Is the solution of the Principles in accordance with both jurisdictions? Have it managed to offer more suitable remedies than the pure Common and Civil Law traditions? Additionally, would the Principles play an important role for the future private European law development or they will be supplanted by new texts?
In order to answer to those questions, we will first try to establish the differences between the concept of non-performance in the English and French legal systems with existing broader concepts such as the breach of contract (I). In a second part we are going to discuss whether substantial differences between the essential English and French remedies for contractual non-performance exist as a consequence of the distinction between Civil and Common law legal traditions (II). Eventually, this note will discuss the possible influences of the PECL and the remedies for non-performance they are offering (III).
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