Die Rückabwicklung gescheiterter Verträge: Neue europäische Entwicklungen

Unwinding Failed Contracts: New European Developments Two recent European reform projects are the revision of the French Code civil, planned to come into effect on 1 October 2016, and an academic draft of a revised Swiss Law of Obligations, envisioned for the year 2020. Both drafts contain specifi c chapters on the unwinding of failed contracts. Underlying is the idea that the rules governing restitution for payments and other performances should be uniform, regardless of whether the contract is void, avoided or terminated for breach. A similar tendency can be found in recent European model rules. At present, restitution after failed contracts in Europe is governed by various sets of different rules, depending on the reason why the contract has failed and on whether the object of recovery is money, property or services. The article aims to evaluate whether uniform rules for the unwinding of failed contracts are a welcome development. Looking at this issue from a historical and comparative perspective, it is argued that there are, in this respect, no fundamental differences between invalid contracts and contracts terminated for breach. Regarding specifi c problems, different cases may require different solutions, but the dividing line is not necessarily the line between termination and avoidance. The question whether solutions should differ in particular cases should be openly discussed and not be hidden behind completely different sets of rules. This can best be done by a uniform restitution regime for failed contracts providing, where necessary, for different rules in detail.