Convention on the Law Applicable to Contractual Obligations 2

Convention on the Law Applicable to Contractual Obligations

 

Article 6

Individual employment contracts

1. Notwithstanding the provisions of Article 3, in a contract of
employment a choice of law made by the parties shall not have the result
of depriving the employee of the protection afforded to him by the
mandatory rules of the law which would be applicable under paragraph 2 in
the absence of choice.

2. Notwithstanding the provisions of Article 4, a contract of employment
shall, in the absence of choice in accordance with Article 3, be
governed:

(a) by the law of the country in which the employee habitually carries
out his work in performance of the contract, even if he is
temporarily employed in another country ; or

(b) if the employee does not habitually carry out his work in any one
country, by the law of the country in which the place of business
through which he was engaged is situated;

unless it appears from the circumstances as a whole that the contract is
more closely connected with another country, in which case the contract
shall be governed by the law of that country.

Article 7

Mandatory rules

1. When applying under this Convention the law of a country, effect may
be given to the mandatory rules of the law of another country with which
the situation has a close connection, if and in so far as, under the law
of the latter country, those rules must be applied whatever the law
applicable to the contract. In considering whether to give effect to
these mandatory rules, regard shall be had to their nature and purpose
and to the consequences of their application or non-application.

2. Nothing in this Convention shall restrict the application of the
rules of the law of the forum in a situation where they are mandatory
irrespective of the law otherwise applicable to the contract.

Article 8

Material validity

1. The existence and validity of a contract, or of any term of a
contract, shall be determined by the law which would govern it under this
Convention if the contract or term were valid.

2. Nevertheless a party may rely upon the law of the country in which he
has his habitual residence to establish that he did not consent if it
appears from the circumstances that it would not be reasonable to
determine the effect of his conduct in accordance with the law specified
in the preceding paragraph.

Article 9

Formal validity

1. A contract concluded between persons who are in the same country is
formally valid if it satisfies the formal requirements of the law which
governs it under this Convention or of the law of the country where it is
concluded.

2. A contract concluded between persons who are in different countries
is formally valid if it satisfies the formal requirements of the law
which governs it under this Convention or of the law of one of those
countries.

3. Where a contract is concluded by an agent, the country in which the
agent acts is the relevant country for the purposes of paragraphs 1 and
2.

4. An act intended to have legal effect relating to an existing or
contemplated contract is formally valid if it satisfies the formal
requirements of the law which under this Convention governs or would
govern the contract or of the law of the country where the act was done.

5. The provisions of the preceding paragraphs shall not apply to a
contract to which Article 5 applies, concluded in the circumstances
described in paragraph 2 of Article 5. The formal validity of such a
contract is governed by the law of the country in which the consumer has
his habitual residence.

6. Notwithstanding paragraphs 1 to 4 of this Article, a contract the
subject matter of which is a right in immovable property or a right to
use immovable property shall be subject to the mandatory requirements of
form of the law of the country where the property is situated if by that
law those requirements are imposed irrespective of the country where the
contract is concluded and irrespective of the law governing the contract.

Article 10

Scope of the applicable law

1. The law applicable to a contract by virtue of Articles 3 to 6 and 12
of this Convention shall govern in particular:

(a) interpretation;

(b) performance;

(c) within the limits of the powers conferred on the court by its
procedural law, the consquences of breach, including the assessment
of damages in so far as it is governed by rules of law;

(d) the various ways of extinguishing obligations, and prescription and
limitation of actions;

(e) the consequences of nullity of the contract.

2. In relation to the manner of performance and the steps to be taken in
the event of defective performance regard shall be had to the law of the
country in which performance takes place.

Article 11

Incapacity

In a contract concluded between persons who are in the same country, a
natural person who would have capacity under the law of that country may
invoke his incapacity resulting from another law only if the other party
to the contract was aware of this incapacity at the time of the
conclusion of the contract or was not aware thereof as a result of
negligence.

Article 12

Voluntary assignment

1. The mutual obligations of assignor and assignee under a voluntary
assignment of a right against another person (‘the debtor’) shall be
governed by the law which under this Convention applies to the contract
between the assignor and assignee.

2. The law governing the right to which the assignment relates shall
determine its assignability, the relationship between the assignee and
the debtor, the conditions under which the assignment can be invoked
against the debtor and any question whether the debtor’s obligations have
been discharged.

Article 13

Subrogation

1. Where a person (‘the creditor’) has a contractual claim upon another
(‘the debtor’), and a third person has a duty to satisfy the creditor, or
has in fact satisfied the creditor in discharge of that duty, the law
which governs the third person’s duty to satisfy the creditor shall
determine whether the third person is entitled to exercise against the
debtor the rights which the creditor had against the debtor under the law
governing their relationship and, if so, whether he may do so in full or
only to a limited extent.

2. The same rule applies where several persons are subject to the same
contractual claim and one of them has satisfied the creditor.

Article 14

Burden of proof, etc.

1. The law governing the contract under this Convention applies to the
extent that it contains, in the law of contract, rules which raise
presumptions of law or determine the burden of proof.

2. A contract or an act intended to have legal effect may be proved by
any mode of proof recognized by the law of the forum or by any of the
laws referred to in Article 9 under which that contract or act is
formally valid, provided that such mode of proof can be administered by
the forum.

 

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

Convention on the Law Applicable to Contractual Obligations, country.


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