Prethodno priopćenje
https://doi.org/10.31141/zrpfs/2265
Challenges of Legal Qualification of the Parties’ Subsequent Conduct in Commercial Contracts
Mihaela Braut Filipović
; Sveučilište u Rijeci, Pravni fakultet
Sonja Marinac Rumora
; Trgovački sud u Pazinu
Sažetak
This paper discusses the challenges involved in the legal qualification of the parties’ subsequent
conduct in the interpretation and modification of commercial sales contracts. It applies a comparative
research method by analysing the legal qualification of the parties’ subsequent conduct in the
common law tradition, with particular emphasis on United States law, and comparing it with the
continental European legal tradition, using German and Croatian national law as examples. In
addition, the paper analyses the solutions adopted in international instruments for the unification
of commercial law, namely the UNIDROIT Principles of International Commercial Contracts and
the United Nations Convention on Contracts for the International Sale of Goods. Within the legal
systems examined, United States law is the only one that expressly regulates the so-called course
of performance as a distinct legal concept. Under Croatian law, the issue of the parties’ subsequent
conduct is considered through the conclusion of contracts by silence or by implied conduct, as
forms of manifestation of the parties’ intent. The paper also discusses contractual modification by
oral agreement or by the parties’ conduct where the contract contains a NOM (no oral modification)
clause. The paper concludes that both legal theory and practice lack clear criteria for distinguishing
between situations in which the parties’ subsequent conduct should be used for the interpretation of
the contractual terms and those in which it should serve as a basis for modification of the contract.
Given its considerable importance in commercial practice, the concept of the parties’ subsequent
conduct requires further doctrinal and practical development.
Ključne riječi
subsequent conduct; course of performance; NOM clause; commercial sale of goods contract
Hrčak ID:
352088
URI
Datum izdavanja:
30.6.2026.
Posjeta: 0 *