Data

Date:
12-10-2023
Country:
Paraguay
Number:
88
Court:
Tribunal de Apelación en lo Civil, Comercial y Laboral – Sexta Sala
Parties:
Norman José Adrián Florentín Quiñonez v. Mártir Téllez Cañete

Keywords

CONSTRUCTION CONTRACT - BETWEEN PARAGUAYAN INDIVIDUALS - UNIDROIT PRINCIPLES AS A MEANS OF INTERPRETING OR SUPPLEMENTING APPLICABLE DOMESTIC LAW (PARAGUAYAN LAW)

NON-PERFORMANCE - CRITERIA FOR DETERMINING WHETHER A PARTY HAS PERFORMED ITS OBLIGATIONS - DINSTINCTION BETWEEN THE DUTY TO ACHIEVE A SPECIFIC RESULT AND THE DUTY OF BEST EFFORTS - REFERENCE TO ART. 5.1.5 UNIDROIT PRINCIPLES AND TO ITS OFFICIAL COMMENTS AND EXAMPLES IN THE ABSENCE OF AN EXPRESS PROVISION OF THE APPLICABLE LAW

Abstract

In the present case Claimant filed a claim against Respondent requesting damages that resulted from the non-performance of a construction contract in which the Respondent had committed to finish a construction within 60-90 days.

The First Instance Judge ruled in favor of the Claimant, partially granting the claimed damages after considering that Respondent was liable for the contractual termination by failing to comply with his obligation.

Respondent appealed the first instance ruling.

In deciding the case, the Appellate Court noted that there is a difference between the duty of best efforts and the duty to achieve a specific result and that in order to understand under which category a determined obligation falls into, one must look into the terms of the agreement, the nature of the obligation, and the element of chance.

In order to qualify the obligation to finish a construction within 60-90 days, the Court of Appeal recurred to the Unidroit Principles, namely Art. 5.1.5 (Determination of kind of duty involved). The Appellate Court mainly referred to the example given in the official commentaries of the Principles, which mentions that if a constructor commits to building a house within a pre-established deadline, then the duty is clearly of results. Therefore, the Court concluded that Respondent had a duty to achieve specific results.

Finally, as to determine which party was responsible for the termination of the contract, the Appellate Court concluded that Respondent did not prove that Claimant obstructed his compliance or that he had made a diligent effort to comply with his obligation. Therefore, Respondent was responsible for non performance.

For these reasons, the Court rejected the appeal and confirmed the first instance ruling.

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