Part 10: Part 10: Non-Performance
Article 89 - Breach of contract(1) Breach of contract is failure (without lawful excuse) by a party to perform any of his obligations under the contract, including defective performance or late performance.(2) In order to claim breach of contract a party must show that the other party has breached a specific express or implied term of the contract.
Article 90 - Interference by the other party
A party may not rely on the non-performance of the other party to the extent that such non-performance was caused by the first party's act or omission or by another event as to which the first party bears the risk.
Article 91 - Withholding performance(1) Where the parties are to perform simultaneously, either party may withhold performance until the other party tenders performance.(2) Where the parties are to perform consecutively, the party that is to perform later may withhold his performance until the first party has performed.
Article 92 - Remedy by non-performing party(1) The non-performing party may, at his own expense, remedy any non-performance, provided that:(A) without undue delay, he gives notice indicating the proposed manner and timing of the cure;(B) remedy is appropriate and practicable in the circumstances;(C) the aggrieved party has no legitimate interest in refusing remedy;(D) the remedy will put the aggrieved party in the position he would have been in had the contract been performed properly; and(E) remedy is effected promptly.(2) The right to remedy is not precluded by notice of termination.(3) Upon effective notice of remedy, rights of the aggrieved party that are inconsistent with the non-performing party's performances are suspended until the time for remedy has expired.(4) The aggrieved party may withhold performance pending remedy.(5) Notwithstanding remedy, the aggrieved party retains the right to claim damages for delay as well as for any harm caused or not prevented by the remedy.
Article 93 - Additional period for performance(1) In a case of non-performance the aggrieved party may by notice to the other party allow an additional period of time for performance.(2) During the additional period the aggrieved party may withhold performance of his own reciprocal obligations and may claim damages but may not resort to any other remedy. If he receives notice from the other party that the latter will not perform within that period, or if upon expiry of that period due performance has not been made, the aggrieved party may resort to any of the remedies that may be available under those
Regulations.(3) Where in a case of delay in performance which is not fundamental the aggrieved party has given notice allowing an additional period of time of reasonable length, he may terminate the contract at the end of that period. If the additional period allowed is not of reasonable length it shall be extended to a reasonable length. The aggrieved party may in his notice provide that if the other party fails to perform within the period allowed by the notice the contract shall automatically terminate.(4) Article 93(3) does not apply where the obligation which has not been performed is only a minor part of the contractual obligation of the non-performing party.
Article 94 - Force Majeure(1) "
Force Majeure" means any circumstances which are not within the reasonable control of the party concerned and which that party could not be reasonably be expected to have taken into account at the time of conclusion of the contract, including without limitation strikes, damage to premises, plant and equipment, breach of a contract by an unrelated third party, governmental action, civil commotion, riot or war and natural physical disaster.(2) Neither party shall be deemed to be in breach of a contract or otherwise liable to the other as a result of any delay or failure in the performance of its obligations if and to the extent that such delay or failure is caused by Force Majeureand the time for performance of the relevant obligation(s) shall be extended accordingly.(3) The party not affected by such Force Majeureshall be relieved from any obligation to make payment to the party affected by the Force Majeurefor so long as the performance is suspended except in respect of performance which has been actually carried out, and which complies with the terms of the contract.(4) A party whose performance of his obligations is delayed or prevented by Force Majeureshall:(A) forthwith notify the other party of the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure;(B) use all reasonable endeavours to minimise the effect of the Force Majeureon its performance of his obligations; and(C) subject to Article 94(5) forthwith after the cessation of the Force Majeurenotify the other party thereof and resume full performance of his obligations.(5) If any Force Majeuredelays or prevents the performance of the obligations of either party for a continuous period in excess of six months, the party not so affected shall then be entitled to give notice to the affected party to terminate the contract.