The Influence of European Model Rules on the Contractual Performance Phase

The contractual performance phase arguably constitutes the core of a contract’s life-cycle. It refers to the stage where a debtor must fulfil his obligations under threat of consequences in case of non-performance. The rules governing contractual performance stem from multiple sources, among which two in particular must be pointed out: hard and soft law. It is undisputed that hard law sources are paramount in determining and regulating contractual obligations as well as performance modalities. Conversely, the role of soft law in the contractual performance phase is not as evident, leaving a significant gap in the understanding of its impact. To address this, this thesis examines how European soft law frameworks, namely the Principles of European Contract Law (PECL), the Draft Common Frame of Reference (DCFR) and broader European contractual principles (such as good faith and fair dealing, freedom of contract, pacta sunt servanda), influence the contractual performance phase. Through a comparative approach, this research explores how soft law shapes contractual obligations, the modalities of performance and remedies for non-performance, highlighting areas of convergence and divergence among European model rules. The interplay of soft and hard law is investigated as well by comparing European directives such as the Consumer Rights Directive (2011/83/EU) or the Unfair Terms Directive (93/13/EEC) to the European soft law frameworks. Additionally, the thesis explores the ambiguous role of the Court of Justice of the European Union (CJEU), using case studies to showcase the CJEU’s delicate balance between interpreting European legal provisions and shaping them through its jurisprudence. By focusing on the contractual performance phase, this thesis provides insights into the broader context of the Europeanisation of contract law, and highlights the contribution of European model rules to the harmonisation of contract law.