About the project
There is always some uncertainty about whether a contract will be fulfilled as agreed. Disruptions may occur, affecting either one or both parties’ performance, leading them to miss out on expected profits or benefits—or, in the worst case, suffer losses or other disadvantages. This raises the question of whether the negative consequences of the disruption should fall on the creditor or the debtor.
This dissertation addresses situations where the debtor claims that the cause of the failure to perform lies with the creditor. It explores the legal rules that may justify placing the burden of disruption on the creditor and the arguments behind these rules. It examines the differences and similarities in the conditions and criteria, and how these impact the outcomes.
A starting point for the analysis is that circumstances on the creditor’s side can matter in at least two ways, serving different legal functions. Firstly, such circumstances may serve as a limitation on what is considered breach on the part of the debtor. Secondly, the connection between the creditor and the disruption can influence the broader assessment of who should bear the risk of unexpected obstacles or developments.
Goals
The aim is not to provide an exhaustive overview of which causes of a debtor's non-performance should or should not be attributed to the creditor across different contract types. Rather, it is to examine the solutions chosen in legislation, case law, and contract practice, along with the considerations and interests at play, in order to shed light on how we can reason when a disruption occurs, and we must decide whether the burden should fall on the creditor or the debtor in each specific case.