AB Menezes Cordeiro, ‘Brexit as an Exceptional Change of Circumstance?’

Few issues in the law of obligations have yielded solutions so disparate as those offered for exceptional changes of circumstances after the formation of contracts. These differences are especially noticeable between civil law systems, despite their common origins and the mutual influences.

Although the solutions differ, the doctrine of change of circumstances is recognised today, with some variations, in most European legal systems: in Germany, in §313 of the BGB; in the United Kingdom, the common law courts have developed the doctrine of frustration; in Italy, in Article 1467 of the Codice Civile; and in Portugal, in Article 437.° of the Código Civil. In a recent development, French law, traditionally averse to the construction, also established the doctrine in the great reform of 2016, in Article 1195 of the Code Civil.

In this chapter, we shall examine the possibility of considering Brexit as an exceptional change of circumstances, in the light of the following European legal systems: Germany, France, the United Kingdom, Italy and Portugal, and the consequences such a classification could have for the conservation or amendment of contracts currently in force.

AB Menezes Cordeiro, ‘Brexit as an Exceptional Change of Circumstance?’ in Nazaré da Costa Cabral, José Renato Gonçalves and Nuno Cunha Rodrigues (eds), After Brexit: Consequences for the European Union (Palgrave Macmillan, 18 January 2018).

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