Naslov
Extinction of the formative right to terminate a contract

Autori
Tot, Ivan

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, sažetak, znanstveni

Izvornik
2nd Zagreb International Conference on the Law of Obligations: Book of abstracts / Tot, Ivan ; Slakoper, Zvonimir - Zagreb : Ekonomski fakultet Sveučilišta u Zagrebu, 2022, 129-130

ISBN
978-953-346-186-1

Skup
2nd Zagreb International Conference on the Law of Obligations

Mjesto i datum
Zagreb, Hrvatska, 28.09.2022. - 30.09.2022

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
termination of contract ; formative rights ; prescription

Sažetak
The right to unilaterally terminate a contract for non-performance, established under the Article 360 of the Croatian Obligations Act (Zakon o obveznim odnosima, ZOO), is a formative right (preobražajno pravo, Gestaltungsrecht). Although the concept of formative rights is doctrinally accepted, seldom is the right to terminate a contract explicitly recognized as a formative right in the Croatian legal scholarship. The published case law never refers to a right to terminate a contract as a formative right. Moreover, not a single decision can be found that would at least mention the concept of formative rights. Thus, it does not come as a surprise that Croatian courts are regularly struggling to comprehend what should be undeniable: a formative right is not a claim (Anspruch), hence it is not subject to prescription (Verjährung). According to the established case law of the Supreme Court of the Republic of Croatia, the right to unilaterally terminate a contract for nonperformance is dependent on the statutory prescription periods. This highly unpalatable interpretation is even supported by the Constitutional Court of the Republic of Croatia. Essentially, with this interpretation, the Croatian courts are attempting to create the same effect as the one that would be induced if the ZOO had a provision similar to the one found in the § 218(1) of the German Civil Code: ‘Revocation for non-performance or for the failure to perform in conformity with the contract is ineffective if the claim for performance or the claim for cure is now statute-barred and the obligor invokes this’. Since there is no comparable provision in the ZOO, the paper aims to find an adequate ground in the ZOO de lege lata that would lead to the same result. The paper also provides an appropriate proposal for the ZOO de lege ferenda.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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