Exceptio non adimpleti contractus

The exceptio non adimpleti contractus is a defence that can be raised in the case of a reciprocal contract. In essence, it is a remedy that allows a party to withhold his own performance, accompanied by a right to ward off a claim for such performance until the other party has duly performed his or her obligations under the contract.

Origins in the Roman Law

Main article: Roman litigation

The first use of such defence was attested in the historical sources in concern to the Roman Law. There, it was used as an 'exceptio', i.e. in response to a legal claim from the other party in a contractual obligation.

Requirements for the exceptio non adimpleti contractus

Two requirements must be met in order for the exceptio non adimpleti contractus to be available. The two performances must be reciprocal to one another; and the other party must be obliged to perform first.

In the Continental Legal Systems

Main articles: Continental Law and Civil law (legal system)

It is provided in the legislation of all European countries using the Civil Law System, especially those with strong influence from the Napoleonic Code (1805).

• In Brazil, it is provided in Art. 476 of the Brazilian Civil Code.
• In Italy, it is provided in Article 1460 of the Italian Civil Code.
• In Belgium, it is provided in Article 5.98 and Article 5.239 of the New Civil Code (Nieuw Burgerlijk Wetboek or Code civil de 2019).
• In the Netherlands, it is provided in Article 6:262 of the Dutch Civil Code (Burgerlijk Wetboek).
• In Russia, it is provided in art. 328 of the Russian Civil Code.
• In Poland, it is provided in art. 488, § 2 of the Polish Civil Code.
• In Bulgaria, it is provided in Art. 90 of the Bulgarian Obligations and Contracts Act.

Bibliography

• Dale Hutchinson & Chris-James Pretorius. The Law of Contract in South Africa, 2nd edn. Cape Town: Oxford University Press, 2013.