Gospodarska/finančna kriza kot spremenjena okoliščina

slovenian

2011

bonuse   changed circumstances   common law   contractual clauses   contractual freedom and autonomy   economic and financial crisis   economic crisis   impossibility   impracticability

Inštitut za primerjalno pravo pri Pravni fakulteti v Ljubljani IPP-PF

The purpose of the article is to present a brief overview of the doctrine of changed circumstances, and to analyse recent decisions in cases where the parties referred to changes in economic conditions as instances of changed circumstances. The article discusses whether the economic and financial crisis may be considered a changed circumstance. Examples of contract clauses designed to avoid the consequences of market changes are presented, and the impact of changed economic circumstances on the payment of bonuses from the aspect of Slovenian case law. The problem is analysed from the historical and comparative viewpoints, starting from the central principle that agreements must be kept (pacta sunt servanda, Article 9 OZ). Additionally, the principles of contractual freedom and autonomy (Article 3 OZ), of equivalence of benefits (Article 8 OZ) and of conscientiousness and honesty (Article 5 OZ) must be taken into account. The historical timeline is followed from the Roman law to the present time, and a comparison is made with the German, French (Theorie de l'imprevision) and Italian law, and with common law doctrines of frustration, impossibility and impracticability. The article concludes that the modern practice has serious reservations about referring to the economic crisis as an example of changed circumstances.

28.11.2016