(Правовое руководство по составлению строительных контрактов)
The law applicable to the contract will determine the conditions under which, and the extent to which, a party who fails to perform a contractual obligation is liable to pay damages. The legal rules on some issues relating to liability may be mandatory, while on other issues the legal rules may be capable of modification by the parties. Most legal systems, however, permit the parties to settle through contract provisions issues relating to the extent to which damages may be recoverable (paragraph 1).
The parties may wish to leave to the applicable law the determination of the conditions under which, and the extent to which, damages are recoverable from a party who has failed to perform. However, if they adopt this approach, the parties should include in their contract the other remedies recommended in the Guide for a failure to perform only after careful consideration, since these remedies may be inconsistent with the rules governing the recovery of damages under the applicable law (paragraph 2).
Alternatively, the parties may provide in the contract that a party who fails to perform an obligation is liable to pay damages. They may also wish to include an exemption clause which would exclude this liability in specified circumstances. They may also wish to determine the extent to which the party who is aggrieved by the failure to perform is to be compensated (paragraph 3).
Damages may be distinguished in certain respects from payment of an agreed sum and from interest (paragraph 4). The purchaser may also arrange for security to compensate him in the event of a failure to perform by the contractor, or may take out insurance to obtain financial protection (paragraph 5). Moreover, the contract or the law applicable to the contract may provide that one party is to compensate the other in circumstances where there has been no failure to perform by the party from whom compensation is payable (paragraph 6).
Different approaches are available to identify the kinds of losses for which an aggrieved party is entitled to compensation (paragraph 7). In respect of compensation for lost profits, different approaches are available to delimit the amount of compensation payable (paragraph 8).
The contract may exclude the recovery of compensation for losses which the party, failing to perform could not have been reasonably expected to foresee. The contract may specify whether foreseeability is to be determined at the time of entering into the contract, or at the time of the failure to perform. Furthermore, the contract may clarify whether the aspect to be foreseen is the kind or the amount of the losses suffered (paragraphs 9 and 10). The parties may also wish to decide on the mechanism by which losses which are causally remote from the failure to perform are excluded from compensation (paragraphs 11 and 12).
If benefits or savings are gained by the aggrieved party from a failure to perform, the parties may provide that they are to be deducted from losses resulting from the failure in determining, the amount to be paid as compensation (paragraph 13). The parties may wish to consider whether the contract is to limit the amount of damages recoverable, and, if so, how the limitation is to be determined in the contract (paragraph 14).
The parties may wish to provide that the aggrieved party is obligated to mitigate his losses. They may provide that if he does not do so, he may not be entitled to compensation for losses which could have been prevented if he had fulfilled his obligation (paragraph 15).
Defective construction may result in death or personal injury to third persons, or damage to their property. Liability for damages to the third persons in those cases is often determined by mandatory extra-contractual legal rules. The parties may, however, wish to provide for the internal allocation of risks between them in respect of damages paid to third persons (paragraphs 16 to 18).
The parties may wish to determine in which currency or currencies damages are to be paid (paragraph 19).