CONCLUSION AND RECOMMANDATIONS
The good faith ensures in the performance of contract,
compliance with the mutual expectations of contractors and makes sure in some
contracts, the implementation of collaboration and solidarity necessary to
achieve the objectives set out from the contractual economy.
Consideration may be given to the main problems of applying
the concept of contractual unpredictability namely non-imputability and the
unpredictability of circumstances and their effects, the distribution of
contractual risk, the determination of the economy of the contract and the
radical change of the obligation assumed.
First, the new circumstances and their effect on the contract
should not be attributed to the party invoking the disruption of the economy of
the contract.
The new circumstances should, in principle, be of a
supra-individual i.e. beyond the control of any party. In addition, the
contractor's simple act is not enough to establish imputability. The latter
implies the violation of specific contractual obligations or general obligation
of diligence.
If an event imputable to the contractor has competed with a
fault to a radical change of the obligation assumed, the contractor may invoke
contractual unpredictability to the extent where the latter results from this
new event.
Concerning the problem of the unpredictability of
circumstances and their effects, we believe that the unpredictability must be
an element of appreciation of risk.
The contractor shall bear the expenses resulting from a change
in circumstances which he could assess the impact on conclusion of the
contract. However, it is not always possible to insert a clause relating to the
change of circumstances, we think of certain adhesion contracts where the
economic
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superiority of one party prevents the other to make any
changes to terms of the agreement.
It is on the essence of the contract that the parties must
bear the change in circumstances affecting their contractual benefits. This is
the first rule of distribution of risks.
The attribution of burdens arising from new circumstances will
be determined also by the contractual terms, their interpretation,
qualification of the contract which allows to discover its nature and therefore
the rules of law or jurisprudence of risk sharing that govern them. Usage and
equity are subsidiary sources for determining risk.
It is still necessary to determine whether the change in
circumstances is likely to radically alter the obligation assumed, as it
results from the contractual economy. If the contract loses its purpose, if the
circumstances essential to the eyes of the parties are changing profoundly, the
radical change of the contractual obligation is confirmed.
Only an extraordinary and unexpected change in circumstances
having effects on the contract of an exceptional and unforeseeable nature may
lead to the application of the theory of unpredictability.
Consideration could be given in our positive law on the one
hand a concept that organizes the change of a situation in which the parties
have concretely considered its maintenance as essential, and also a concept for
the profound imbalance of benefits generated by the unpredictable and
extraordinary change of circumstances.
The principle of the Convention-law envisaged by our Civil
Code should be attenuated during the interpretation of conventions disrupted
by
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circumstances reasonably unpredictable at the conclusion of
the contract. Thus, the judge will be guided in its interpretation by equity to
restore the lost equilibrium.
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BIBLIOGRAPHY
I. Legal Texts
1. Loi N° 42/1988 du 27 octobre 1988 portant titre
préliminaire et livre premier du code civil, B.O., 1989 P. 9
2. Law n° 12/2007 of 27/03/2007 on public procurement ,
O.G n° 8 of 15 April 2007
3. Décret du 30 juillet 1888 code civil livre III: des
contrats ou des obligations conventionnelles, B.O., 1888, P. 109
4. U.K Law Reform Act, Frustrated contracts, of 1943
5. European principles of law of contracts. Revised and
completed version of 1998
II. Decided Case Laws
A. National Case Laws
1. RC 0140/07/TB/KCY of 05 September 2007 of district court of
Kacyiru, unpublished
2. RC 0039/05/TD/Kro of 30 September 2005 of district court of
Kicukiro, unpublished
3. RC 867/92 of 28th September 1992 of First
Instance court of Kibungo, unpublished
4. R.C.A 7608/Ruh of 27 April 1992 of the Appeal court of
Ruhengeri, unpublished
5. RCA 8769/kig of 29 July 1993 of the Appeal court of Kigali,
unpublished
6. RC 3720/R10/2001 of 12th October 2001 of the First
Instance Court of Gisenyi, unpublished
7. RC 2745/R7/2000 of 17th October 2000 of the
First Instance Court of Gisenyi, unpublished
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