Principles of European Law on Service Contracts (PELSC):Artikel 1:103 Pre-contractual Duties to Warn

Principles of European Law on Service Contracts (PELSC)

Artikel 1:103 Pre-contractual Duties to Warn

Geldend

Documentgegevens:

Geldend vanaf 01-10-2005

Redactionele toelichting: De dag van de datum van publicatie is gezet op 01.
Bronpublicatie:: 01-10-2005, Internet 2005, www.sgecc.net (uitgifte: 01-10-2005, kamerstukken/regelingnummer: -)
Inwerkingtreding: 01-10-2005
Bronpublicatie inwerkingtreding:: 01-10-2005, Internet 2005, www.sgecc.net (uitgifte: 01-10-2005, kamerstukken/regelingnummer: -)
Vakgebied(en): Verbintenissenrecht / Overeenkomst

(1)

The service provider is under a pre-contractual duty to warn the client if the service provider becomes aware or if the service provider has reason to know that the service requested:

(a): may not achieve the result stated or envisaged by the client, or
(b): may damage other interests of the client, or
(c): may become more expensive or take more time than reasonably expected by the client.

(2)

The duty to warn in paragraph (1) does not apply if the client:

(a): already knows of the risks referred to in subparagraph (1)(a), (b), or (c); or
(b): has reason to know of the risks.

(3)

If an event referred to in paragraph (1) occurs and the client was not duly warned:

(a): the client need not accept a change of the service under Article 1:111 unless the service provider proves that the client, if the client would have been duly warned, would have entered into a contract taking into account the event; and
(b): the client may recover damages in accordance with Article 4:117(2) and (3) PECL (Damages).

(4)

The client is under a pre-contractual duty to warn the service provider if the client becomes aware, or if the client has reason to know of unusual facts that are likely to cause the service to become more expensive or take more time than expected by the service provider.

(5)

If the facts referred to under paragraph (4) occur and the service provider was not duly warned, the service provider is entitled to:

(a): damages for the loss the service provider sustained as a consequence of the non-performance; and
(b): an adjustment of the time of performance that is required for the service.

(6)

For the purpose of paragraph (1), the service provider has ‘reason to know’ if the risks would be obvious to a comparable service provider in the same situation as this service provider from all the facts and circumstances known to the service provider, considering the information that the service provider must collect about the result stated or envisaged by the client and the circumstances in which the service is to be carried out.

(7)

For the purpose of subparagraphs (2)(b) and (4), the client has ‘reason to know’ if the risks would be obvious to a comparable client in the same situation as this client from all the facts and circumstances known to the client without investigation. The client is not treated as knowing of a risk, or having reason to know of it, merely because the client was competent, or was advised by others who were competent, in the relevant field, unless such other person acted as the agent of the client, in which case Article 1:305 PECL (Imputed Knowledge and Intention) applies.