1. La modification volontaire du contenu du contrat
- Author
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UCL - SSH/JURI/PJPR - Droit privé, UCL - Faculté de droit et de criminologie, Wéry, Patrick, Tilleman, Bernard, Stijs, Sophie, Samoy, Ilse, Herbots, Jacques, Chantepie, Gaël, Philippe, Denis, Troch, Kenny, UCL - SSH/JURI/PJPR - Droit privé, UCL - Faculté de droit et de criminologie, Wéry, Patrick, Tilleman, Bernard, Stijs, Sophie, Samoy, Ilse, Herbots, Jacques, Chantepie, Gaël, Philippe, Denis, and Troch, Kenny
- Abstract
Sometimes contracting parties or a third party want to modify the content of a contract while still maintain the existence of the contract. This raises the question as to what types of changes can be made while maintaining the existence of the contract. We came to the conclusion that some changes are by nature incompatible with the maintenance of the existence of the contract, i.e. the addition or removal of essential elements of the contract resulting in its requalification and the replacement of essential contractual elements. Our second research question addressed when and under what conditions one of the contracting parties or a third party can unilaterally modify the contract? The unilateral variation is, in principle, prohibited. However, a number of exceptions to this rule exist. First, we think of the unilateral modification clauses. Such clauses are valid provided they do not exceed the limitations imposed by the legislator. In the absence of a unilateral modification clause, a unilateral variation is only possible in a limited number of cases. A first example is the possibility for the principal or the client to unilaterally remove elements respectively from the agency or service contracts. Another example is the possibility for the franchisor to unilaterally change the commercial concept on which the franchise is based. Finally, faced with difficulties that require an urgent modification of the contract, the agent and the service provider can unilaterally change the service to be provided if they cannot consult respectively the principal and the client in advance. In the absence of a faculty of unilateral variation, good faith provides relief to the party seeking a contract modification. Indeed, the moderating and complementary effects of good faith can, in some cases, compel one of the contracting parties to accept a proposed modification and prohibit it from seeking the unmodified performance of the contract. Like the unilateral variation, the modificat, (DROI - Sciences juridiques) -- UCL, 2022
- Published
- 2022