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I. The content of the duty to restore I. The content of the duty to restore
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1. The general duty: restitution must be in kind or in the form of a monetary payment 1. The general duty: restitution must be in kind or in the form of a monetary payment
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2. Accounting for benefits and fruits 2. Accounting for benefits and fruits
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3. Compensation for expenses 3. Compensation for expenses
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II. The consequences of restitution being impossible or inappropriate II. The consequences of restitution being impossible or inappropriate
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1. When restitution is impossible 1. When restitution is impossible
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2. When restitution is inappropriate 2. When restitution is inappropriate
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3. The duty to make an allowance in money if restitution is impossible or inappropriate 3. The duty to make an allowance in money if restitution is impossible or inappropriate
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4. The allocation of the risk that performance cannot be returned due to deterioration or destruction 4. The allocation of the risk that performance cannot be returned due to deterioration or destruction
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(a) The general rule: the recipient bears the risk (a) The general rule: the recipient bears the risk
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(b) The exception to the general rule: recipient excused if impossibility of making restitution in kind attributable to the other party (b) The exception to the general rule: recipient excused if impossibility of making restitution in kind attributable to the other party
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5. Deterioration or destruction after avoidance 5. Deterioration or destruction after avoidance
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6. The relationship between duties to restore and duties to pay damages 6. The relationship between duties to restore and duties to pay damages
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III. Application of the general rules relating to obligations to the restitutionary obligations created by Art 3.2.15 III. Application of the general rules relating to obligations to the restitutionary obligations created by Art 3.2.15
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IV. Burden of proof IV. Burden of proof
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Cite
Abstract
This commentary focuses on Article 3.2.15 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the duties of restitution that arise after avoidance of the whole or part of a contract. On avoidance either party may claim restitution of whatever it has supplied under the contract, or the part of it avoided, provided that such party concurrently makes restitution of whatever it has received under the contract, or the part of it avoided. This commentary discusses the content of the duty to restore, the consequences of restitution being impossible or inappropriate, application of the general rules relating to obligations to the restitutionary obligations created by Art 3.2.15, and burden of proof for the requirements of a restitutionary claim arising after avoidance.
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