Exception of Non-Perfomance in Linked Contracts

Abstract

This paper seeks to analyze the use of the exception of non-performance within the scope of linked contracts, based on the revision of the specific doctrine. Accordingly, the authors first analyze the requirements of the exceptio, namely (a) corresponding obligations, which must be evaluated not only under a structural perspective, but also under a functional one; (b) simultaneity of the compliance with the contract, which encompasses, by analogy, the contracting party whose obligation is subsequent; (c) failure to perform the contract; (d) good faith of the excepter. The authors then analyze the effects of the exception of non-perfomance, notably the dilatory effect, which suspends the enforceability of the obligation due by the excepter. The article also examines the elements of linked contracts, specifically plurality of contracts and their functional connection. Finally, the authors investigate how the exception of non-performance operates in the context of linked contracts, concluding that the mere breach of one of the contracts is not enough to trigger the exceptio in relation to the other contract: a synallagmatic link between the non-performed obligation by one party in one contract and the obligation due by the counterparty in the other contract is necessary.