spain

204 the enforceabilit y of promises

Therefore, to demand an amount of steel not needed could be considered illegitimate, in which case Alloy need not fulfil the obligation.36

In Case 8(c), although Alloy promised to sell, Motor Works did not promise to buy. Therefore Motor Works is not obliged to buy any steel. However, if it had assumed the obligation to buy steel only from Alloy, it would be held liable if it bought steel from anybody else.

Nevertheless, in a contract made by a unilateral promise in which a term is not fixed, art. 411 of the Civil Code allows the promisor to ask the court to fix a term within which the promisee can exercise its rights if it chooses, but after which its rights are cancelled. If Motor Works does not buy any steel from Alloy it would have that option.

italy

In Case 8(a), Alloy’s contractual promise would probably be enforceable, while in Case 8(b), it probably would not. In Case 8(c), Motor Works would simply not be obligated to buy any steel, and the case raises no problems worth analysing.

In Case 8(a), Alloy could try to have the contract discharged on the grounds of supervening excessive hardship. According to arts. 1467–9 of the Civil Code, contractual promises can be discharged whenever a supervening event takes place of an extraordinary and unforeseeable nature after the formation of the contract and before performance, and this event makes the performance of one party excessively burdensome in proportion to that of the other. This is a question of fact. The highest court, the Corte di cassazione, will not reverse an appellate court’s decision on this issue.37 The only restriction is that the event which took place must lie outside the normal risks assumed under the contract (art. 1467(2)). The promisee can avoid discharge of the contract by offering to modify it equitably (art. 1467(3)).38

In Case 8(a), however, Alloy would probably not be able to obtain a discharge of the contract because the courts would probably consider the fluctuation of the market price to be an event which is part of the normal risk of the contract. For example, in a recent decision, the Tribunale di Monza39

36See Cordeiro, Da Boa Fé no Direito Civil, 853 ff.

37Cass. civ., sez. II, 20 June 1996, no. 5690 (Roccheri c. Mazzara); Cass. civ., 9 April 1994, no. 3342 (Soc. Arbos c. Com. Piacenza).

38See G. Criscuoli and D. Pugsley, The Italian Law of Contract (1991), 211.

39Tribunale di Monza, 29 March 1993, Soc. Nuova Fucinati c. Fondamentall International A. B., in Foro it. I (1994), 916, with a case-note by S. Di Paola and in Giur. it. I (1994), 2, 146 with a case-note by J. Bonell. See also Cass. civ., 13 Jan. 1995, no. 369, in Foro it. Rep. (1995), entry ‘Contratto in genere’, no. 523; Cass. civ., sez. II, 28 Jan. 1995, no. 1027, in Foro it. I

held that a sales contract is not dischargeable under arts. 1467–8 of the Civil Code because of a variation of 30 per cent in the market price of the raw materials sold.

In Case 8(b), Motor Works took advantage of the increase in market price by ordering twice the steel it usually needs, presumably intending to resell the excess. In doing so, it probably violated the general principle that a contract must be performed in good faith, which was recently reaffirmed by the Corte di cassazione.40 The legal analysis would therefore be much the same in Italy as it would be in the United States.41 Moreover, for Alloy to be bound, the quantity of steel it is obligated to sell must be determinable (art. 1346 of the Civil Code).42 A court would probably decide that, as a matter of contract interpretation, the quantity was to have been determined by looking at Motor Works’ normal requirements.

austria

In all three variants, the promise is in principle binding. There could be a different result only if the contract could be interpreted in such a way that the change in market price would give Alloy the right to modify the contract or demand its modification.

In Case 8(a), there are no indications that such an interpretation could be justified. A rise in the market price of 20 per cent is a risk the seller has to bear unless the parties make a different agreement.

In Case 8(b), the question arises whether the contract really gave Motor Works the right to order twice the steel it usually needs. As long as Motor Works uses the steel for its own production, this question will have to be answered in the affirmative. If Motor Works uses the additional steel to make a profit by reselling it on the market, it probably could be argued that such a course of action is not covered by the contract. For such an

(1995), 2898; Cass. civ., sez. II, 13 Feb. 1995, no. 1559, in Foro it. I (1995), 2897; F. Macario, ‘Inflazione, fluttuazioni del mercato ed eccessiva onerosità’, Corr. giur. (1995), 585.

40Cass. civ., sez. I, 20 April 1994, no. 3775 (Comune di Fiuggi c. Ente Fiuggi s.p.a.), Giur. it. I (1995), 1, 852 and in Foro it. I (1995), 1296. For scholarly writings on this topic, see, e.g., L. Bigliazzi Geri, ‘Buona fede nel diritto civile’, Digesto 2 (1988), 154; L. Bigliazzi Geri, ‘La buona fede nel diritto privato (spunti ricostruttivi)’, in Il principio di buona fede – Quaderni della Scuola Superiore di studi universitari e di perfezionamento, vol. III (1987), 51 ff.; S. Rodotà, ‘Appunti sul principio di buona fede’, in Foro pad. I (1964), 1284; C. M. Bianca, ‘La nozione di buona fede quale regola di comportamento contrattuale’, Riv. dir. civ. I (1983), 205 ff.; U. Natoli, L’attuazione del rapporto obbligatorio, vol. I (1974); L. Nanni, La buona fede contrattuale (1988).

41See, e.g., S. J. Burton and E. G. Andersen, Contractual Good Faith (1995), 25–6.

42Article 1346 of the Civil Code: ‘Requisites: The object of the contract must be possible, lawful, determined, or determinable.’