Commentary on Sections
Part 2 - Remedies for breach of contract
Rescission for breach of contract
Section 21 - Use and improvement
94.Section 21 further implements recommendations 32 and 33 of the Report.
95.Section 21(1) requires the recipient of the benefit to pay a reasonable amount for any use made of it, subject to any reduction in value under section 20(2). Section 21(2) applies when there has been an increase in the value of the benefit in the time between the party receiving the benefit and its return. It entitles the recipient to payment of the value of any improvements made to the benefit which the other party can readily recover. However, this entitlement does not apply if either the improvement was itself a breach of contract, or the recipient made the improvement knowing, or when it ought to have known, that the benefit would have to be returned.
96.An example of use and improvement from the DCFR Commentary involves the purchase by D of a number of motorcycles from M, which D proceeds to improve by customising them.(5) However D is unable to re-sell the bikes upon discovery that contrary to the terms of the contract the motorcycles at the time of purchase did not satisfy certain safety regulations. D therefore terminates the contractual relationship with M. Restoration of the bikes to their state at the time of purchase is impossible due to the nature of the customisation. Therefore, while D is required to return the bikes to M under section 18(4), M is liable to pay to D the value of the improvements made, if M can readily obtain that value by selling the bikes.
97.Again, it is open to parties to contract out of this section’s rules in terms of section 16 of the Act.
Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference at 925. See https://www.law.kuleuven.be/personal/mstorme/european-private-law_en.pdfBack [1]
- Blaenorol
- Nodiadau Esboniadol Tabl o’r Cynnwys
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