Defending Against an Allegation of Non-Performance
When a creditor tells a debtor that the contract has been breached, the debtor's position is not empty: the Civil Code provides several real lines of defence against an allegation of non-performance. These lines are the concept of delay of performance and its limits, non-fault impossibility, adaptation of the contract to changed circumstances, and the rules limiting recoverable damage. Each is a separate construction, and their correct application either dissolves the allegation or limits its volume.
The Concept of Delay and Its Limits
The first line is conceptual: the allegation moves on the terrain of time, and the concept must be applied precisely. Under Article 400 of the Civil Code, delay of performance by the debtor exists where the obligation is not performed at the time established for performance, or where after the arrival of the performance term it does not perform the obligation even after a warning by the creditor. But the frame has an exception: under Article 401 of the Civil Code, the term is not deemed exceeded where the obligation was not performed due to circumstances not caused by the debtor's fault. These two norms together pose the question whether the delay was culpable, and the answer decides the whole architecture of the defence.
Changed Circumstances and Adaptation of the Contract
The second line is situational. Under Article 398 of the Civil Code, where the circumstances that became the basis of the conclusion of the contract have evidently changed after its conclusion, and the parties would not have concluded the contract, or would have concluded it with different content, had these changes been taken into account, adaptation of the contract to the changed circumstances may be demanded. Otherwise, considering individual circumstances, a party to the contract cannot be required to adhere strictly to the unaltered contract. A change of circumstances is also equated with the case where the notions that became the basis of the contract prove incorrect. The same norm contains the procedural rule of defence: the parties must first attempt to adapt the contract to the changed circumstances, and if that is impossible or the other party does not agree, the party whose interests were harmed retains the right to refuse the contract.
Limiting the Damage: Foreseeability and Direct Consequence
The third line concerns the volume of damage. Article 412 of the Civil Code provides that only such damage is subject to compensation as was foreseeable for the debtor beforehand and constitutes the direct consequence of the damaging act. This norm is a defensive instrument in both directions: it does not relieve the debtor of liability for foreseeable and direct damage, but it rejects claims outside this frame. Before the court, each component of the claimed damage must be examined separately against these two criteria.
The Victim's Contributory Fault
The fourth line is the allocation of fault. Under Article 415 of the Civil Code, where the victim's own conduct also contributed to the occurrence of the damage, the obligation to compensate and the extent of compensation depend on whose fault predominantly caused the damage. This rule also applies where the victim's fault consists in inaction, that is, in failing to avoid or reduce the damage. In an allegation this means that the creditor's own conduct, delayed decisions, withheld information or multiplied losses, directly limits the amount of compensation.
The Structure of the Defence
Building the defence is sequential: first the factual chronology and the observance of terms are proven; then the existence or absence of fault; then, where needed, the change of circumstances and the attempt at adaptation; and finally the assessment of damage through the filters of foreseeability, directness and contributory fault. Every document, written correspondence, warnings and evidence of the change of circumstances, is a support of this structure.
When is delay not deemed such?
Where the obligation was not performed because of circumstances not caused by the debtor’s fault; delay means that the obligation was not performed at the established time, or is not performed even after the creditor’s warning.
May the contract be adapted to changed circumstances?
Yes — where the circumstances that became the basis of the contract have evidently changed and the parties would not have concluded it, or would have concluded it with a different content, taking those changes into account, adaptation may be demanded; incorrect representations are equated to a change of circumstances.
Which damage is compensable?
Only damage that was foreseeable for the debtor and constitutes the direct result of the action causing the damage.
How does the creditor’s conduct limit compensation?
Where the victim’s own action also contributed to the origin of the damage, the duty and the amount of compensation depend on whose fault predominates; fault may also consist in inaction — in failing to avert or reduce the damage.
What happens where adaptation is impossible?
The parties must first attempt to adapt the contract; where that is impossible or the other party does not consent, the injured party may renounce the contract.
How We Help on Legal.ge
Our team builds defences against non-performance allegations on every line: we analyse the concept of delay and non-fault impossibility, establish the construction of changed circumstances and the fact of an attempted adaptation, limit damage under the criteria of foreseeability and directness, and substantiate the creditor's contributory fault. Contact our specialists so that an allegation meets a full legal answer.