• Part 8: Part 8: Performance

    • Article 73 - Time of performance

      (1) A party must perform his obligations:
      (A) if a time is fixed by or determinable from the contract, at that time;
      (B) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the other party is to choose a time; and
      (C) in any other case, within a reasonable time after the conclusion of the contract.
      (2) The parties may include a provision in their contract stating that time is to be of the essence in relation to the performance of a particular term or the contract as a whole. Such a provision shall allow the party relying on the provision to terminate the contract if the other party fails to perform the obligation in accordance with the date or time specified.
      (3) Time will be implied to be of the essence in relation to a particular term of the contract and the party relying on the term shall be allowed to terminate the contract if:
      (A) one party serves reasonable notice on the other to perform his obligations by a certain date and failure by the other party to comply with the terms of the notice goes to the root of the contract so as to deprive the other party of substantial benefit to which he is entitled under the terms of the contract; or
      (B) the circumstances indicate that a date or time must be complied with where failure to perform on time would deprive the other party of a substantial benefit to which he is entitled under the terms of the contract.
      (4) Where time is not of the essence a substantial or serious failure to perform obligations in accordance with the time limits set out in Article 73(1) may nevertheless constitute a fundamental breach of the contract if the conditions set out in Article 110 (Right to terminate the contract) are met.

    • Article 74 - Performance at one time or in instalments

      In cases under Article 73(1)(B) or (C), a party must perform his obligations at one time if that performance can be rendered at one time and the circumstances do not indicate otherwise.

    • Article 75 - Partial performance

      (1) The Obligee may reject an offer to perform in part at the time performance is due, whether or not such offer is coupled with an assurance as to the balance of the performance, unless the Obligee has no legitimate interest in so doing.
      (2) Additional expenses caused to the Obligee by partial performance are to be borne by the Obligor without prejudice to any other remedy.

    • Article 76 - Order of Performance

      (1) To the extent that the performances of the parties can be rendered simultaneously, the parties are bound to render them simultaneously unless the circumstances indicate otherwise.
      (2) To the extent that the performance of only one party requires a period of time, that party is bound to render its performance first, unless the circumstances indicate otherwise.

    • Article 77 - Earlier Performance

      (1) The Obligee may reject an earlier performance unless he has no legitimate interest in so doing.
      (2) Acceptability by a party of an earlier performance does not affect the time for the performance of his own obligations if that time has been fixed irrespective of the performance of the other party's obligations.
      (3) Additional expenses caused to the Obligee by earlier performance are to be borne by the Obligor, without prejudice to any other remedy.

    • Article 78 - Place of Performance

      (1) If the place of performance is neither fixed by, nor determinable from the contract, a party is to perform:
      (A) a monetary obligation, at the Obligee's place of business; and
      (B) any other obligation, at his own place of business.
      (2) A party must bear any increase in the expenses incidental to performance which is caused by a change in his place of business subsequent to the conclusion of the contract.

    • Article 79 - Payment by cheque or other instrument

      (1) Payment may be made in any form used in the ordinary course of business at the place for payment.
      (2) However, an Obligee who accepts, either by virtue of Article 79(1) or voluntarily, a cheque, any other order to pay or a promise to pay, is presumed to do so only on condition that it will be honoured.

    • Article 80 - Payment by funds transfer

      (1) Unless the Obligee has indicated a particular account, payment may be made by a transfer to any of the financial institutions in which the Obligee has made it known that he has an account.
      (2) In case of payment by a transfer, the obligation of the Obligor is discharged when the transfer to the Obligee's financial institution becomes effective.

    • Article 81 - Currency of payment

      (1) If a monetary obligation is expressed in a currency other than that of the place of payment, it may be paid by the Obligor in the currency of the place for payment unless:
      (A) the currency is not freely convertible; or
      (B) the parties have agreed that payment should be made only in the currency in which the monetary obligation is expressed.
      (2) If it is impossible for the Obligor to make payment in the currency in which the monetary obligation is expressed, the Obligee may require payment in the currency of the place for payment, even in the case referred to in Article 81(1)(B).
      (3) Payment in the currency of the place for payment is to be made according to the applicable rate of exchange prevailing there when payment is due.
      (4) However, if the Obligor has not paid at the time when payment is due, the Obligee may require payment according to the applicable rate of exchange prevailing either when payment is due or at the time of actual payment.

    • Article 82 - Currency not expressed

      Where a monetary obligation is not expressed in a particular currency, payment must be made in the currency of the place where payment is to be made.

    • Article 83 - Costs of performance

      Each party shall bear the costs of performance of his obligations.

    • Article 84 - Imputation of payments

      (1) An Obligor owing several monetary obligations to the same Obligee may specify at the time of payment the debt to which he intends the payment to be applied. However, the payment discharges first any expenses, then interest due and finally the principal.
      (2) If the Obligor makes no such specification, the Obligee may, within a reasonable time after payment, declare to the Obligor the obligation to which he imputes the payment, provided that the obligation is due and undisputed.
      (3) In the absence of imputation under Article 84(1) or (2), payment is imputed to that obligation which satisfies one of the following criteria and in the order indicated:
      (A) an obligation which is due or which is the first to fall due;
      (B) the obligation for which the Obligee has least security;
      (C) the obligation which is the most burdensome for the Obligor; and
      (D) the obligation which has arisen first.
      (4) If none of the criteria in Article 84(3) apply, payment is imputed to all the obligations proportionally.

    • Article 85 - Onerous performance

      Unless Article 94 (Force Majeure) applies, where the performance of a contract becomes more onerous for one of the parties, that party is nevertheless bound to perform his obligations.