- Elgar European Law series
Chapter 13: Contractual issues and exceptions
The Rome I Regulation takes pains to make clear that most issues relating to a contract are usually governed by its proper law. Thus Articles 10–12 and 18 of the Regulation provide for the application of the proper law to questions of formation; essential validity; formal validity; interpretation; performance; remedies; discharge; time-limitation; the consequences of nullity; presumptions and the burden of proof; and modes of proof. On the other hand the Regulation also makes provision in certain circumstances for the application of a law other than the proper law to questions of formation; essential validity; formal validity; remedies; the manner of performance; individual capacity; and modes of proof. It also lays down, in Articles 14–17, rules dealing with assignment, subrogation, recourse between debtors, and set-off. Moreover, as well as making a classic saving for the exclusion of foreign law which conflicts with the forum's stringent public policy, it permits respect to be accorded to overriding interests asserted by the lex fori or by the law of the place of performance. By Article 12(1)(a), (b) and (d) of the Rome I Regulation, interpretation, performance and discharge (the various ways of extinguishing obligations) are expressly included among the issues governed by the proper law. Article 18(1) adds that the proper law applies to the extent that, in matters of contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.
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