Recht Basics

Requirements
• Non-conformity of the goods (art. 35 CISG), only defective goods • Timely and substantiated notice
Calculation
• Proportional computation
Legal Consequences • Reduction of the purchase price • Claim for the return of the excess amount plus interest • Can be combined with damages  

• Liability: regardless of fault (art. 45 para. 1 (b) CISG) • Combination with other remedies according to art. 46-52 CISG • Exemptions (art. 79 para. 1 CISG): o Impediment beyond the obligor’s control that could not be taken into account and o Reason for impediment of performance not within the obligor’s area of risk • Includes costs for replacement of damaged goods, lost profits, cost of repair etc. • Limit: foreseeability rule (art. 74 para. 1 CISG)  

• Seller may remedy any failure to perform (art. 48 CISG) o Defect must be completely rectified o Several attempts to cure possible o Seller must bear costs • Must be reasonable for the buyer: • Legal consequences: o Successful cure: rights of the buyer expire o Unsuccessful cure: remedies according to art. 45 para. 1 CISG

art 53 CISG

Payment of price
• Determined by the contract • Otherwise: market price (art. 55 CISG) • Method of payment: cash, bank transfer,  • Place of payment (art. 57 CISG): seller’s place of business or where goods are handed over • Due date: concurrent with delivery
Take delivery of goods
• Physically taking delivery (art. 60 CISG), including unloading, organizing transport
Consequences of breach

• Seller may exercise the rights in art. 6265 CISG • Claim damages

Sales Contracts
• Promise to manufacture an object is a sale if it is mass produced; otherwise a work contract («contract for the supply of goods to be manufactured») • Sale of an object combined with duty to assemble it: can be sale, work contract or mixed contract
Mandates
• the agent does not promise a specific result, only that he will diligently work towards a certain goal • Expert opinions are qualified as works if the result can be objectively measured  • Contract with a dentist is a mandate
Architect and Engineering Contracts

• Plans, drawings: work contract • Managing and supervising construction: mandate • If architect does both: mixed contract

Main Obligations:

Construction of a Work
Delivery of the Work

Ancillary Obligations:

Duty of Care
Duty of Loyalty
Liability for Material
Duty to Inform and Notify
Supply Resources/Tools at Own Expense

Main Obligations:

Payment

Ancillary Obligations:

Taking delivery of the work
Other ancillary obligations: e.g. inspection of goods and notice of defect (art. 367 CO

Requirements: Defect, inspection (art 367 CO), noticeof defect (art 367 CO), principal is not at fault (art 369co), principal did not accept work (art 370 CO), no fault on the contractors part necessary-

Rights: rescission, reduction of compensation, cure, payment of consequential damages.

• 2 years following delivery (art. 371 para. 1 CO) • 5 years if the defects of a movable work that has been built in an immovable work have caused this immovable work to be defective (art. 371 para. 1 CO).  • If the delivered work is an immovable work, the rights of the principal arising from defects against the contractor as well as against the architect or engineer that have rendered services for the building of the work, prescribe five years following delivery of the work (art. 368 para. 2 CO)

Contractor's Rights:
Change in circumstances art. 373 para. 2 CO
Impossibility to fulfill, attributable to the principal art. 378 CO
Impossibility due to death or incapacity of contractor art. 379 CO
Principal's default art. 107 para. 2 CO

Principal’s Rights:
Late commencement art. 366 para. 1 CO 
Substantial defects art. 368 para. 1 CO
Excessive increase in compensation art. 373 para. 2 CO analogously
Estimate is exceeded art. 375 CO
Termination at any time with indemnification art. 377 CO
Contractor’s default art. 107 para. 2 CO

Work Contracts: • Result is owed, not activity
Employment Contracts: • Subordination of the employee
Doing a Favor and Giving Advice: • No intention to create a legally binding relationship

Main obligation: payment, if:

-agreed or customary

Ancillary obligations (art. 402 CO)

-Reimburse agent for expenses incurred
-Release agent from any obligations

Main obligations:
-performing diligently and in conformity with mandate
-depending on the circumstances: obligation to transfer acquired rights
Ancillary obligations:
-duty of care
-duty of loyalty
-obligations to disclose and notify
-depending on the circumstances: obligation to transfer acquired rights

• Damages for breach of the duty of care: art. 97 et seq. or art. 398 para. 2 CO • Damages require the agent to be at fault, i.e. at least acted negligently • Agent does not perform at all or does not perform to the agreed extent: art. 102 et seq. CO

• One time mandate is terminated if agreed upon service has been performed correctly • Continuous mandate is terminated after the agreed upon time • Notice of termination: at any time (art. 404 para. 1 CO) o Art. 404 CO is mandatory o Termination at an inappropriate time: liability for damages (art. 404 para. 2 CO) • Termination because of death, legal incapacity or bankruptcy of either the principal or the agent (art. 405 CO)  

1. Contractual claims ( performance, compensation for non performance)
2. Quasi contractual claims (culpa in contrahendo, agency without authority)
3. Non contractual liability ( rights in rem: obligation to restitute objects according to art 641, para 2 cc, obligations arising from torts: e.g. damages according to art. 41 CO)
4. Claims arising from unjust enrichment. (art. 62 et seq. CO)

1. Has a claim arisen? (contract? tort committed?)
2. Has the claim ceased to exist? (was the claim in the meantime fullfilled, forfeited? - see art 41 para 1 CO)
3. Is the claim actionable? (Timebarred?)

Who wants what from whom on which legal basis?

1. Julia (who) wants compensation for losses (wants what) incurred from Mike (from whom). Obligation arising from torts. Statutory basis is art 41 para 1.
2. tatbestand: 1 adequate cauality 2 fault, 3 illegality and 4 loss or damage. are thes fullfilled - damages = legal consequence
3. has a claim been arisen?
4. four requirements interpreted. (loss or damage - pecuninary disadvantage through treatment costs)
5. not able to go on vacation not a loss in legal sense because it is not a pecuniary disadvanatge.
6. Rightd for compensation have not ceased to exist (text gives no clue).
7. Therefore julia has the right to demand damages for treatment costs (if all other requirements are also given).
8.  

civil law, common law (case law), hybrids (combination of codes, case law, religious law, customary law)

Law of persons, family law, inheritance law, property law

General principles of contract law, specific contracts, company law

• legal capacity art 11
• The ability to create rights and obligations - capacity to act (art 12 et seq.CC): 18 years old (art 14 CC) and capable of judgement (art 16 CC)

Associations, Foundation and Company limited by shares

Partnership limited by shares, limited liability company, ccoperative.

Simple partnerships (art 530 et seq), general partnerships (art. 552 et seq.), limited partnership (ar. 594 et seq)

Partnerships are several people endowed with same right, subject of commonly held right and often have personal liability/ fixed stated capital.

Mandatory law: no deviation by way of agreement, must provision, can often be found in rent and employment law.

Optional provisions: parties can deviate from rules, should provision, default rule.

Art 2.

• useless exercise of legal rights
• crass disproportion between interests
• contradictory behaviour.

• The burden of proving the existence of an alleged fact lies on the person who derives right from that fact.