(f)  Model law

in which the creditor would have been if the obligation had been duly performed’.214 This commendably clear statement is evidently highly supportive of contractual parties’ promises. The choice of the phrase ‘general measure’ is, however, suggestive of the fact that another measure may in exceptional circumstances be appropriate, though what such alternative measure might be is not specified.215 It seems reasonable to suggest that such measure might, in an appropriate case, be the restoration (or status quo ante) measure, in terms of which recovery of wasted expenditure undertaken in preparation for performance might be sought. It would, however, have been useful to have seen an explicit statement in the text of the DCFR that such an exceptional claim is permissible.

Damages are available for all failures to perform an obligation unless ‘the non-performance is excused’.216 Does this impose a fault-based requirement upon damages claims? To answer that question, regard must be had to Article III.-3.104 which concerns excuses for non-performance due to impediments. The Article provides that ‘impediments beyond the debtor’s control’ which the debtor ‘could not reasonably be expected to have avoided or overcome’ 217 excuse the debtor from performance. An impediment so described is evidently one in relation to which the debtor cannot be at fault, as one cannot be responsible (and thus at fault) for events beyond one’s control. So, the DCFR damages provision, taken together with the provision on impediments, means that non-performance due to matters beyond a party’s control excuses the duty to pay damages. That does not mean, however, that the general regime of damages under the DCFR is in consequence fault-based, as there are many circumstances

214By focusing on the creditor’s position, and taking into account the way in which loss is measured, this statement of the general measure of damages would seem to exclude transferred loss claims. Special provision is made for cases where, following termination for non-performance, the creditor undertakes a replacement transaction to cover for such non-performance: the measure of damages is the difference between the two contract prices (Art. III.-3:706).

215The Official Commentary to the DCFR notes that certain provisions on damages resulting from circumstances other than non-performance give rise to a right to reliancebased damages designed to restore the party prejudiced to the position it was previously in (the status quo ante position), Art. II.-7:204 being an example of such a provision. The Commentary does not, however, give any further information as to when such damages might apply under Art. III.-3:702, save to note somewhat cryptically that the Article leaves open the possibility that ‘a rule relating to a particular kind of obligation could provide for a special measure of damages’ (Comment E to Art. III.-3:702).

216Art. III.-3:701(1).

217Though where the impediment is permanent, the obligations is extinguished: Art. III.-3:104(4). This describes what in Common law terms would be called frustration.