A fedezeti szerződésen alapuló kárszámítás egyes kérdései

Absztrakt

The new Hungarian Civil Code (Act V of 2013) (HCC) contains a special rule for the calculation of loss based on substitute transactions. The aim of my paper is to analyse this method of loss calculation based on the commentaries and the case law related to the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The first part of the paper presents the rules of substitute transactions in the international sales and contract law instruments (ULIS, CISG, UNIDROIT Principles, PECL, DCFR) as well as the relevant practice used by Hungarian courts before the entry into force of the HCC. The second part of the study analyses some of the main questions about how the new HCC rule on substitute transactions should be applied. In attempting to answer these questions I rely on the practice of the CISG, as the HCC contains a rule which is similar to Art. 75 of the CISG (even though there are certain differences which I analyse specifically). The HCC requires the creditor to terminate the contract with the debtor in order to have a damages claim based on a substitute transac- tion. I argue that, contrary to the CISG, it is not necessary that the creditor first termi- nates the contract before concluding the substitute transaction and that, instead, the termination may follow the substitute transaction. I also argue that the creditor may claim damages based on a substitute transaction in certain cases even without terminating the original contract (e.g. if the debtor refuses performance). In the case of rolling stock situations (where the creditor concludes a number of similar contracts on a regular basis), I believe that the 'first purchase after avoidance rule' may be applied as a starting point. The HCC, unlike the CISG, does not expressly require the creditor to conclude the substitute transaction in a reasonable manner or within a reasonable time. However, such a requirement follows on from the creditor's general duty to avoid and/or mitigate its own losses. The consequence of the breach of this obligation is not that the creditor loses its right to calculate its losses based on the substitute transaction (the solution adopted by most commentators of the CISG), but rather that the damages have to be reduced by the amount the creditor could and should have mitigated its losses by. I also deal with the question of whether the foreseeability rule is applicable to the damages based on a substitute transaction. Contrary to most Hungarian authors I argue that it is. Finally, I also argue that, contrary to the CISG's commentators, it is not sufficient for the creditor to prove that it entered into the substitute transaction; it also has to prove performance under the substitute transaction.