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Social Force Majeure

  • Thomas Wilhelmsson
Part of the Law and Philosophy Library book series (LAPS, volume 16)

Abstract

Structuring the general principles of a branch of law anew may be expected to have a greater effect the more concisely the new principles can be formulated. The more clearly the new norms can be presented in the form of ordinary “rules” in the meaning Alexy and Dworkin give this term (see above II.1) the easier it is for the legal decision-maker to use the new instruments. In this chapter it will be shown how such a new, relatively precise legal principle can be created on the basis of a fragmented concrete legal material.

Keywords

Legal Consequence Consumer Credit General Clause Payment Delay Contract Practice 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

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    Three strategies for overcoming the apparent conflict between the Sale of Goods Act and the principle of social force majeure, in the latter’s favour, are conceivable: (i) One can maintain that the Act is not intended to be exhaustive and hence that the doctrine of social force majeure can be applied as a supplement to the Act. (ii) One could interpret the liability rule of the Act which, modelled on the United Nations Convention on Contracts for the International Sale of Goods, rules out liability for impediments beyond the control of the party, which he could not reasonably be expected to have taken into account or to have avoided or overcome, so that social force majeure is perceived as a relevant impediment; thus Bärlund 1990. (iii) One could employ the general clause of the Sale of Goods Act on adjustment of unreasonable damages as gateways for the principle of social force majeure into the rules on damages in the law of sale of goods. Taxell 1972 p. 226 writes: “In special situations there is reason to consider whether the right to avoidance should be set aside on the ground that the debtor has not negligently caused the breach of contract. Among other things, one can refer to a case where, although the breach is fundamental, avoidance would mean a disproportionately great financial loss for the debtor. As one should in such situations weigh the parties’ interests against each other, it may be correct to refuse the creditor the right to avoidance with reference partly to the financial effects avoidance would have for the debtor (present author’s italics), and partly to the absence of negligence on his part. Here one must also observe whether the creditor’s interest can be sufficiently met in other ways than through avoidance.” (translated here). As another concrete example, reference can be made to a case from the Swedish Market Court, (S)MD 1979:3, where the Court decided upon the fairness of a contract term of a purchase of real estate according to which the seller should have immediate right of avoidance if there was delay in payment of the price. The Court found the term unfair because, among other things, the buyer should as acceptable excuse for the delay be able to plead illness or comparable circumstance.Google Scholar
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Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Thomas Wilhelmsson
    • 1
  1. 1.Department of Private LawUniversity of HelsinkiFinland

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