Joseph Lookofsky

Financial Crises and Danish Contract Law: No Room for Hardship

Danish law recognizes a number of modifications to the pacta sunt servanda rule. When such modifications apply, a promisor may be relieved, in whole or part, of its obligation to perform as originally agreed. Due to the emphasis usually placed on pragmatic considerations in Danish law (which goes hand in hand with a lack of legal formalism in our legal system), the various recognized exceptions to pacta sunt servanda – both statutory and otherwise – sometimes tend to overlap. So although it seems appropriate in a comparative context to provide a schematic (point by point) presentation of these exceptions – e.g. with specific focus on exceptions related to the possible effects of financial crises (“Hardship”) – account must also be taken of their interaction in Danish legal theory and practice, not least because Danish courts do not always specify the exact legal principle which they apply when holding that a contractual provision is not binding.

The CISG in Denmark and Danish Courts

In this article the author explores key aspects of Denmarks reception and implementation of the 1980 United Nations Convention on Contracts for the International Sales of Goods (CISG). Placing the treaty within its larger private law context, the author explains the complexity and confusion created by Denmarks refusal to ratify Part II of the Convention that regulates sales contract formation. The author then proceeds to investigate Denmarks obligation to have regard to the international character of the Convention and the need to promote uniformity in its application, underlying the problematical relationship between these international obligations and the Danish judicial tradition of formulating premises so brief that they shed little light on the decisions underlying rationale ( ratio decidendi ). Following analysis and critique of three Danish CISG court judgments which help illustrate these propositions, the author proposes corrective steps designed to further a more international (and less parochial) approach to the CISG.