AIFC Contract Regulations (full text)

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AIFC Contract Regulations

PART 1: GENERAL
1. Name

These Regulations are the AIFC Contract Regulations 2017.

2. Legislative authority

These Regulations are adopted by the Governor under article 4 of the Constitutional Statute and subparagraph 3) of paragraph 9 of the Management Council Resolution on AIFC Bodies.

3. Application of these Regulations

These Regulations apply within the jurisdiction of the AIFC.

4. Date of enactment

These Regulations are enacted on the day they are approved by the Governor.

5. Commencement

These Regulations commence on 1 January 2018.

6. Interpretation

The Schedule 1 to these Regulations contains:

(1) interpretative provisions that apply to these Regulations; and

(2) definitions used in these Regulations.
PART 2: CONTRACTS GENERALLY
7. Choice of governing law and jurisdictions

(1) These Regulations govern contracts made between AIFC Participants, AIFC Bodies and AIFC Participants, and AIFC Bodies, unless otherwise expressly provided in a contract.

(2) If a party to a contract is not an AIFC Participant or AIFC Body, these Regulations do not apply to the contract unless expressly provided in the contract.

(3) Any contract governed by these Regulations is subject to the jurisdiction of the Court unless otherwise expressly provided in a contract.

8. Freedom of and capacity to contract

(1) Any person of competent legal capacity is free to enter into a contract and determine its content.

(2) A natural person does not have competent legal capacity if the person:

(a) has not attained the age of 18 years; or

(b) is mentally ill or otherwise incapable.

(3) If a person not of competent legal capacity enters into a contract, the contract is voidable:

(b) at the election of the person or the person’s representative; or

(c) by order of the Court.

9. No form required

Nothing in these Regulations requires a contract to be concluded in or evidenced by writing. It may be proved by any means, including witnesses.

10. Binding character of contract

A contract validly entered into is binding on the parties. It can only be modified or terminated in accordance with its terms or by agreement or as otherwise provided in these Regulations.

11. Exclusion or modification by the parties

The parties to a contract may exclude the application of these Regulations, or derogate from or vary the effect of any of their provisions, except as otherwise provided in these Regulations.

12. Usages and practices

(1) The parties are bound by any usage to which they have agreed and by any practices they have established between themselves.

(2) The parties are bound by a usage that is widely known to and regularly observed in international trade by parties in the particular trade concerned unless the application of the usage would be unreasonable.

13. Notice
(1) If notice is required, it may be given by any means appropriate to the circumstances.

(2) A notice is effective when it reaches the person to whom it is given.

(3) For subsection (2), a notice reaches a person when it is given to the person orally or delivered at the person’s place of business or mailing address and, for a notice given by electronic mail, when it is delivered to the person by electronic mail if it is a business day at the place of business of the receiving person.

(4) In this section, notice includes a declaration, demand or request or any other communication of intention.
PART 3: FORMATION
14. Manner of formation

A contract is concluded by the acceptance of an offer.

15. Definition of offer

A proposal for concluding a contract constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound if it is accepted.

16. Withdrawal of offer

(1) An offer becomes effective when it reaches the offeree.

(2) An offer, even if irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.

17. Revocation of offer

(1) Until a contract is concluded, an offer may be revoked if the revocation reaches the offeree before the offeree has dispatched an acceptance.

(2) An offer cannot be revoked if:

(a) it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or

(b) it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.

18. Rejection of offer

An offer is terminated when a rejection reaches the offeror.

19. Mode of acceptance

(1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.

(2) An acceptance of an offer becomes effective when the indication of assent reaches the offeror.

(3) If, by virtue of the offer or as a result of practices the parties have established between themselves or of usage, the offeree may indicate assent by performing an act without notice to the offeror, the acceptance is effective when the act is performed.

20. Time of acceptance

Acceptance of an offer is effective if the offer is accepted within the time the offeror has fixed or, if no time is fixed, within a reasonable time having regard to the circumstances, including the speed of the means of communication employed by the offeror. Acceptance of an oral offer is effective if the offer is accepted immediately unless the circumstances indicate otherwise.

21. Acceptance within a fixed period of time
(1) A period of time for acceptance fixed by the offeror in a written instrument begins to run from the date shown on the written instrument. A period of time for acceptance fixed by the offeror by means of instantaneous communication begins to run from the moment that offer reaches the offeree.

(2) Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day that follows.

22. Late acceptance; delay in transmission

(1) A late acceptance is nevertheless effective as an acceptance if without undue delay the offeror so informs the offeree or gives notice to that effect.

(2) If a written instrument containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance, unless, without undue delay, the offeror informs the offeree that the offeror considers that the offer has lapsed.

23. Withdrawal of acceptance

An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective.

24. Modified acceptance

(1) A reply to an offer that purports to be an acceptance, but contains additions, limitations or other modifications, is a rejection of the offer and constitutes a counter-offer.

(2) A reply to an offer that purports to be an acceptance, but contains additional or different terms that do not materially alter the terms of the offer, constitutes an acceptance, unless the offeror, without undue delay, objects to the discrepancy. If the offeror does not object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

25. Writings in confirmation

If a writing that is sent within a reasonable time after the conclusion of the contract, and that purports to be a confirmation of the contract, contains additional or different terms, the terms become part of the contract, unless they materially alter the contract or the recipient, without undue delay, objects to the discrepancy. If the recipient objects without undue delay, the confirmation has no effect.

26. Conclusion of contract dependent on agreement on specific matters or in a specific form

If in the course of negotiations one of the parties insists that the contract is not concluded until there is agreement on specific matters or in a specific form, no contract is concluded before agreement is reached on those matters or in that form.

27. Contract with terms deliberately left open

(1) If the parties intend to conclude a contract, the fact that they intentionally leave a term to be agreed on in further negotiations or to be determined by a third person does not prevent a contract from coming into existence.

(2) The existence of the contract is not affected by the fact that subsequently:

(a) the parties reach no agreement on the terms; or

(b) the third person does not determine the term, but there is an alternative means of rendering the term definite that is reasonable in the circumstances, having regard to the intention of the parties.

28. Freedom to negotiate

A party is free to negotiate and is not liable for failure to reach an agreement.

29. Duty of confidentiality

If information is expressly given as confidential by one party in the course of negotiations, the other party is under a duty not to disclose the information or to use it improperly for the other party’s own purposes, whether or not a contract is subsequently concluded. If appropriate, the remedy for breach of the duty may include compensation based on the benefit received by the other party.

30. Merger clause

A contract in writing that contains a clause indicating that the writing completely embodies the terms on which the parties have agreed cannot be contradicted or supplemented by evidence of prior statements or agreements. However, prior statements or agreements may be used to interpret the writing, unless otherwise expressly agreed by the parties.

31. Written modification clauses

A contract in writing that contains a clause requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated. However, a party may be precluded by the party’s conduct from asserting the clause to the extent that the other party has acted in reliance on the conduct.

32. Contracting under standard terms

(1) If one party or both parties use standard terms in concluding a contract, the general rules of formation apply, subject to sections 33 and 34.

(2) Standard terms are provisions that are prepared in advance for general and repeated use by one party and that are actually used without negotiation with the other party.

33. Conflict between standard terms and non-standard terms

In case of conflict between a standard term and a term that is not a standard term, the latter prevails.

34. Battle of forms

If both parties use standard terms and reach agreement except on those terms, a contract is concluded on the basis of the agreed terms and of any standard terms that are common in substance unless one party clearly indicates in advance, or later and without undue delay informs the other party, that the party does not intend to be bound by such a contract.
PART 4: VALIDITY
35. Validity of mere agreement

A contract is concluded, modified or terminated by the mere agreement of the parties, without any further requirements.

36. Initial impossibility

(1) The mere fact that at the time of the conclusion of the contract the performance of the obligation assumed was impossible does not affect the validity of the contract.

(2) The mere fact that at the time of the conclusion of the contract a party was not entitled to dispose of the assets to which the contract relates does not affect the validity of the contract.

37. Relevant Mistake

(1) A party may only avoid a contract for Mistake if, when the contract was concluded, the Mistake was of such importance that a reasonable person in the same situation as the party would not have concluded it at all if the true state of affairs had been known, and:

(a) the other party made the same Mistake, or was also Mistaken, or caused the Mistake, or knew or ought to have known of the Mistake and it was contrary to reasonable commercial standards of fair dealing to leave the Mistaken party in error; or

(b) the other party had not at the time of avoidance acted in reliance on the contract.

(2) However, a party may not avoid the contract if:

(a) it was grossly negligent in committing the Mistake; or

(b) the Mistake relates to a matter in regard to which the risk of Mistake was assumed or, having regard to the circumstances, should be borne by the Mistaken party.

38. Error in expression or transmission

An error occurring in the expression or transmission of a declaration is considered to be a Mistake of the person from whom the declaration emanated.

39. Remedies for non-performance

A party is not entitled to avoid the contract on the ground of Mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance.

40. Fraud

A party may avoid the contract if it has been led to conclude the contract by the other party’s fraudulent representation, including language or practices, or fraudulent non-disclosure of circumstances that the latter party ought reasonably to have disclosed.

41. Threat

A party may avoid the contract if it has been led to conclude the contract by the other party’s unjustified threat that, having regard to the circumstances, is so imminent and serious as to leave the first party no reasonable alternative. In particular, a threat is unjustified if the act or omission with which a party has been threatened is wrongful in itself or it is wrong to use it as a means to obtain the conclusion of the contract.

42. Confirmation

If the party entitled to avoid the contract expressly or impliedly confirms the contract after the period of time for giving notice of avoidance has begun to run, avoidance of contract is excluded.

43. Loss of right to avoid

(1) If a party is entitled to avoid the contract for Mistake but the other party declares itself willing to perform or performs the contract as it was understood by the party entitled to avoidance, the contract is considered to have been concluded as the latter party understood it. The other party must make the declaration or render the performance promptly after having been informed of the manner in which the party entitled to avoidance had understood the contract and before that party has acted in reliance on a notice of avoidance.

(2) After the declaration or performance the right to avoidance is lost and any earlier notice of avoidance is ineffective.

44. Notice of avoidance

The right of a party to avoid the contract is exercised by notice to the other party.

45. Time limits

Notice of avoidance must be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely.

46. Partial avoidance

If a ground of avoidance affects only individual terms of the contract, the effect of avoidance is limited to those terms unless, having regard to the circumstances, it is unreasonable to uphold the remaining contract.

47. Retroactive effect of avoidance

(1) Avoidance takes effect retroactively.

(2) On avoidance either party may claim restitution of whatever is supplied under the contract or the part of it avoided, if the party concurrently makes restitution of whatever the party has received under the contract or the part of it avoided or, if the party cannot make restitution in kind, the party makes an allowance for what the party has received.

48. Mandatory character of provisions of Part 4

The provisions of this Part 4 are mandatory, except insofar as they relate to sections 35, 36 and 37
PART 4-1: ELECTRONIC CONTRACTS 48-1. Legal recognition of electronic contracts
A contract must not be denied legal effect, validity or enforceability only because an Electronic Record was used in its formation.

48-2. Formation and validity of contracts using Electronic Communications

(1) To remove any doubt, in the formation of a contract, an offer and the acceptance of an offer may be made by an Electronic Communication.

(2) If an Electronic Communication is used in the formation of a contract, the contract must not be denied legal effect, validity or enforceability only because an Electronic Communication was used in its formation.

48-3. Effectiveness between parties

As between the Originator and the Addressee of an Electronic Communication, a declaration of intent or other statement must not be denied legal effect, validity or enforceability only because it is in the form of an Electronic Communication.

48-4. Invitation to make offer

(1) This section applies to a proposal to conclude a contract made using 1 or more Electronic Communications if the proposal is not addressed to 1 or more specific parties but is generally accessible to parties making use of Information Systems, including a proposal that makes use of interactive applications for the placement of orders through the Information Systems.

(2) The proposal is taken to be an invitation to make offers, unless it clearly indicates the intention of the party making the proposal to be bound if the proposal is accepted.

48-5. Use of automated message systems for contract formation

A contract formed by the interaction of an automated message system and a natural person, or by the interaction of automated message systems, must not be denied legal effect, validity or enforceability only because a natural person did not review or intervene in each of the individual actions carried out by the automated message system or systems or the resulting contract.

48-6. Time and place of dispatch and receipt

(1) The time of dispatch of an Electronic Communication is:

(a) the time it leaves an Information System under the control of the Originator or the Person who sent it on behalf of the Originator; or

(b) if the Electronic Communication does not leave an Information System under the control of the Originator or the Person who sent it on behalf of the Originator—the time the Electronic Communication is received.

(2) The time of receipt of an Electronic Communication at an electronic address designated by the Addressee is the time the Electronic Communication becomes capable of being retrieved by the Addressee at the address.

(3) The time of receipt of an Electronic Communication at an electronic address that has not been designated by the Addressee is the time the Electronic Communication becomes capable of being retrieved by the Addressee at the address and the Addressee becomes aware that the Electronic Communication has been sent to the address.

(4) For subsection (3), an Electronic Communication is presumed to be capable of being retrieved by the Addressee at an electronic address when it reaches the address.

(5) An Electronic Communication is taken to be dispatched at one of the places of business of the Originator and is taken to be received at one of the places of Business of the Addressee.

(6) Subsections (2), (3) and (4) apply even through the Information System supporting an electronic address is located at a different place from the place where the Electronic Communication is taken to be received under subsection (5).

(7) Subsections (1), (2), (3) and (5) apply unless otherwise agreed between the Originator and the Addressee.
PART 5: INTERPRETATION
49. Intention of the parties

(1) A contract must be interpreted according to the common intention of the parties.

(2) If that intention cannot be established, the contract must be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances.

50. Interpretation of statements and other conduct

(1) The statements and other conduct of a party must be interpreted according to that party’s intention if the other party knew or could not have been unaware of that intention.

(2) If subsection (1) does not apply, the statements and other conduct must be interpreted according to the meaning that a reasonable person of the same kind as the other party would give to it in the same circumstances.

51. Relevant circumstances

In applying sections 49 and 50, regard must be had to all the circumstances, including the following:

(a) practices the parties have established between themselves;

(b) the nature and purpose of the contract;

(c) the meaning commonly given to terms and expressions in the trade concerned; and

(d) usages.

52. Reference to contract or statement as a whole

Terms and expressions must be interpreted in the light of the whole contract or statement in which they appear.

53. All terms to be given effect

Contract terms must be interpreted to give effect to all the terms rather than to deprive some of them of effect.

54. Interpretation against party responsible

If contract terms supplied by one party are unclear, an interpretation against that party is preferred.

55. Linguistic discrepancies

If a contract is drawn up in 2 or more language versions that are equally authoritative, there is, for any discrepancy between the versions, a preference for interpretation according to the version in which the contract was originally drawn up.
PART 6: CONTENT
56. Express and implied obligations

The contractual obligations of the parties may be express or implied.

57. Implied obligations

Implied obligations arise from:

(a) the nature and purpose of the contract; and

(b) practices established between the parties and usages; and

(c) good faith and fair dealing; and

(d) reasonableness.

58. Cooperation between the parties

Each party is bound to cooperate with the other party if the cooperation may reasonably be expected for the performance of that party’s obligations.

59. Duty to achieve a specific result—duty of best efforts

(1) To the extent that an obligation of a party involves a duty to achieve a specific result, the party is bound to achieve that result.

(2) To the extent that an obligation of a party involves a duty of best efforts in the performance of an activity, the party is bound to make the efforts that would be made by a reasonable person of the same kind in the same circumstances.

60. Determination of kind of duty involved

In determining the extent to which an obligation of a party involves a duty of best efforts in the performance of an activity or duty to achieve a specific result, regard must be had, among other factors, to:

(a) the way in which the obligation is expressed in the contract; and

(b) the contractual price and other terms of the contract; and

(c) the degree of risk normally involved in achieving the expected result; and

(d) the ability of the other party to influence the performance of the obligation.

61. Determination of quality of performance

If the quality of performance is neither fixed by, nor determinable from, the contract, a party is bound to render a performance of a quality that is reasonable in the circumstances.

62. Price determination

(1) If a contract does not fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have made reference to the price generally charged at the time of the conclusion of the contract for such performance in comparable circumstances in the trade concerned or, if no such price is available, to a reasonable price.

(2) If the price is to be fixed by a third person, and that person cannot, will not or does not do so, the price must be a reasonable price.

(3) If the price is to be fixed by reference to factors that do not exist or have ceased to exist or to be accessible, the nearest equivalent factor must be treated as a substitute.

63. Contract for an indefinite period

A contract for an indefinite period may be ended by either party by giving notice a reasonable time in advance.
PART 7: PERFORMANCE
64. Time of performance

A party must perform the party’s obligations:

(a) if a time is fixed by or determinable from the contract—at that time; or

(b) if a period of time is fixed by or determinable from the contract—at any time within that period unless circumstances indicate that the other party is to choose a time; or

(c) in any other case—within a reasonable time after the conclusion of the contract.

65. Performance at one time or in instalments

In cases under section 64(b) or (c), a party must perform the party’s obligations at one time if performance can be rendered at one time and the circumstances do not indicate otherwise.

66. Partial performance

(1) The Obligee may reject an offer to perform in part at the time performance is due, whether or not the offer is coupled with an assurance as to the balance of the performance.

(2) Additional expenses caused to the Obligee by partial performance are to be borne by the Obligor without prejudice to any other remedy.

67. Order of performance

(1) To the extent that the performances of the parties can be rendered simultaneously, the parties are bound to render them simultaneously unless the circumstances indicate otherwise.

(2) To the extent that the performance of only one party requires a period of time, that party is bound to render its performance first, unless the circumstances indicate otherwise.

68. Earlier performance

(1) The Obligee may reject an earlier performance unless the Obligee has no legitimate interest in so doing.

(2) Acceptance by a party of an earlier performance does not affect the time for the performance of the party’s own obligations if that time has been fixed irrespective of the performance of the other party’s obligations.

(3) Additional expenses caused to the Obligee by earlier performance are to be borne by the Obligor, without prejudice to any other remedy.

69. Place of performance

(1) If the place of performance is neither fixed by, nor determinable from the contract, a party is to perform:

(a) a monetary obligation, at the Obligee’s place of business; and

(b) any other obligation, at the party’s own place of business.
(2) A party must bear any increase in the expenses incidental to performance that is caused by a change in the party’s place of business subsequent to the conclusion of the contract.

70. Payment by cheque or other instrument

(1) Payment may be made in any form used in the ordinary course of business at the place for payment.

(2) However, an Obligee who accepts, either under subsection (1) or voluntarily, a cheque or any other order to pay is presumed to do so only on condition that it will be honoured.

(3) If a cheque or other order to pay is dishonoured, the Obligee’s right to sue on the debt revives and Obligee’s original rights under the contract are restored.

(4) The rights of the Obligee under subsection (3) do not affect any rights the Obligee may have with respect to the cheque or other order to pay.

71. Payment by funds transfer

For payment by a transfer, the obligation of the Obligor is discharged when the transfer to the Obligee’s financial institution becomes effective.

72. Currency of payment

(1) If a monetary obligation is expressed in a currency other than the currency of the place of payment, it may be paid by the Obligor in the currency of the place for payment unless:

(a) the currency of the place of payment is not freely convertible; or

(b) the parties have agreed that payment should be made only in the currency in which the monetary obligation is expressed.

(2) If it is impossible for the Obligor to make payment in the currency in which the monetary obligation is expressed, the Obligee may require payment in the currency of the place for payment, even if subsection (1) applies.

(3) Payment in the currency of the place for payment is to be made according to the applicable rate of exchange prevailing there when payment is due.

(4) If the Obligor has not paid at the time when payment is due, the Obligee may require payment according to the applicable rate of exchange prevailing either when payment is due or at the time of actual payment.

73. Currency not expressed

If a monetary obligation is not expressed in a particular currency, payment must be made in the currency of the place where payment is to be made.

74. Costs of performance

Each party bears the costs of performance of the party’s obligations.

75. Imputation of payments

(1) An Obligor owing several monetary obligations to the same Obligee may specify at the time of payment the debt to which it intends the payment to be applied. The payment discharges first any expenses incurred in connection with the debt, then interest due and finally the principal.

(2) If the Obligor does not make a specification, the Obligee may, within a reasonable time after payment, declare to the Obligor the obligation to which the Obligee imputes the payment, if the obligation is due and undisputed.

(3) In the absence of imputation under subsection (1) or (2), payment is imputed to the obligation which satisfies one of the following criteria and in the order indicated:

(a) an obligation that is due or that is the first to fall due;

(b) the obligation for which the Obligee has least security;

(c) the obligation that is the most burdensome for the Obligor; or

(d) the obligation that has arisen first.

76. Imputation of non-monetary obligations

Section 75 applies with appropriate adaptations to the imputation of performance of non-monetary obligations.
PART 8: NON-PERFORMANCE
77. Non-performance defined

Non-performance is failure by a party to perform any 1 or more of the party’s obligations under the contract, including defective performance or late performance.

78. Interference by the other party

A party may not rely on the non-performance of the other party to the extent that the non- performance was caused by the first party’s act or omission or by another event as to which the first party bears the risk.

79. Withholding performance

(1) If the parties are to perform simultaneously, either party may withhold performance until the other party tenders performance.

(2) If the parties are to perform consecutively, the party that is to perform later may withhold its performance until the first party has performed.

80. Cure by non-performing party

(1) The non-performing party may, at the party’s own expense, unless agreed otherwise by the parties, cure any non-performance if:

(a) without undue delay, the non-performing party gives notice indicating the proposed manner and timing of the cure; and

(b) cure is appropriate in the circumstances; and

(c) the aggrieved party has no legitimate interest in refusing cure; and

(d) cure is effected promptly.

(2) The right to cure is not precluded by notice of termination.

(3) On effective notice of cure, rights of the aggrieved party that are inconsistent with the non- performing party’s performance are suspended until the time for cure has expired.

(4) The aggrieved party may withhold performance pending cure.

(5) Notwithstanding cure, the aggrieved party retains the right to claim damages for delay as well as for any harm caused or not prevented by the cure.

81. Additional period for performance

(1) For non-performance, the aggrieved party may by notice to the non-performing party allow an additional period of time for performance.

(2) During the additional period the aggrieved party may withhold performance of the aggrieved party’s own reciprocal obligations and may claim damages but may not resort to any other remedy. If the aggrieved party receives notice from the non-performing party that the non-performing party will not perform within that period or due performance has not been made at the end of that period, the aggrieved party may resort to any of the remedies that may be available under this Part 8.

(3) If in a case of delay in performance that is not fundamental the aggrieved party has given notice allowing an additional period of time of reasonable length, the aggrieved party may terminate the contract at the end of that period. The aggrieved party may in the notice provide that, if the non-performing party fails to perform within the period allowed by the notice, the contract terminates automatically.

(4) Subsection (3) does not apply if the obligation that has not been performed is only a minor part of the contractual obligation of the non-performing party.

82. Force majeure

(1) Except with respect to a mere obligation to pay, non-performance by a party is excused if that party proves that the non-performance was due to an impediment beyond the party’s control and that the party could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.

(2) If the impediment is only temporary, the excuse has effect for the period that is reasonable having regard to the effect of the impediment on performance of the contract.

(3) The party who fails to perform must give notice to the other party of the impediment and its effect on the party’s ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, the party is liable for damages resulting from the non-receipt.

(4) Nothing in this section prevents a party from exercising a right to terminate the contract or to withhold performance or request interest on money due.

83. Performance of monetary obligation

If a party who is obliged to pay money does not do so, the other party may require payment notwithstanding section 82.

84. Performance of non-monetary obligation

If a party who owes an obligation (other than an obligation to pay money) does not perform, the other party may require performance, unless

(a) performance is impossible in law or fact; or

(b) performance or, if relevant, enforcement is unreasonably burdensome or expensive; or

(c) performance is of an exclusively personal character; or

(d) the party entitled to performance does not require performance within a reasonable time after the party has, or ought to have, become aware of the non-performance.

85. Repair and replacement of defective performance

The right to performance includes in appropriate cases the right to require repair, replacement or other cure of defective performance. The provisions of sections 83 and 84 apply accordingly.

86. Right to terminate the contract
(1) A party may terminate the contract if the failure of the other party to perform an obligation under the contract amounts to a fundamental non-performance.

(2) In determining whether a failure to perform an obligation amounts to a fundamental non- performance, regard must be had, in particular, to whether:

(a) the non-performance substantially deprives the aggrieved party of what the party was entitled to expect under the contract; and

(b) strict compliance with the obligation that has not been performed is of essence under the contract; and

(c) the non-performance is intentional or reckless; and

(d) the non-performance gives the aggrieved party reason to believe that the non- performing party’s future performance cannot be relied on.

(3) In the case of delay the aggrieved party may also terminate the contract if the non- performing party fails to perform before the time allowed under section 81 has expired.

87. Notice of termination

(1) The right of a party to terminate the contract is exercised by notice to the other party.

(2) If performance has been offered late or otherwise does not conform to the contract, the aggrieved party loses the right to terminate the contract unless the aggrieved party gives notice to the other party within a reasonable time after the aggrieved party has or ought to have become aware of the non-conforming performance.

88. Anticipatory non-performance

If prior to the date for performance by one of the parties it is clear that there will be a fundamental non-performance by that party, the other party may terminate the contract.

89. Effects of termination in general

(1) Termination of the contract releases both parties from their obligation to effect and to receive future performance.

(2) Termination does not preclude a claim for damages for non-performance.

(3) Termination does not affect any provision in the contract for the settlement of disputes or any other term of the contract that is to operate even after termination.

90. Restitution

(1) On termination of a contract under section 86 or 88, any party may claim restitution of whatever the party has supplied, if the party concurrently makes restitution of whatever the party has received. If restitution in kind is not possible or appropriate, allowance must be made in money whenever reasonable.

(2) However, if performance of the contract has extended over a period of time and the contract is divisible, the restitution can only be claimed for the period after termination has taken effect.

91. Set-off

(1) Set-off is the discharge of reciprocal obligations to the extent of the smaller obligation.

(2) Contractual set-off is a duty or option granted by contract under which a debtor must or may set off the debtor’s cross-claim in discharge of the creditor’s primary claim if the setoff is created by contract in circumstances where in the absence of the contract there would be no right of set-off.

(3) Transaction set off is available if both the claimants are solvent. A debtor may set off the debtor’s cross-claim against the creditor’s primary claim if:

(a) both claims arise out of the same transaction or closely connected transactions; and

(b) the creditor has defaulted in performance of the very obligation for which the creditor is seeking payment by the creditor’s primary claim.

(4) Transaction set-off is available even if the creditor’s primary claim or the debtor’s cross- claim is unliquidated.

(5) If liquidated claims arise on 2 current financing accounts payable on each side on demand, a bank may set off against a credit balance, a cross-claim owing to the bank on an overdrawn account if there is no express or implied agreement to keep the accounts separate.
PART 9: ASSIGNMENT
92. Assignment of rights and obligations

(1) An assignment of a contractual right is a transfer under which the assignor’s right to performance by the Obligor is extinguished in whole or in part and the assignee acquires a right to the performance.

(2) An assignment of a contractual obligation is delegation of the obligation to the assignee.

(3) An assignment of a contract by a party is an assignment of the contractual rights and delegation of the contractual obligations of the party.

93. Assignment of future rights

(1) An assignment of a right to payment expected to arise out of an existing business relationship is effective in the same way as an assignment of an existing right.

(2) A purported assignment of a right expected to rise under a contract not in existence operates only as a promise to assign the right when it arises and not as a power to enforce it.

94. Limits on assignments and delegations

(1) A contractual right can be assigned unless:

(a) the substitution of a right of the assignee for the right of the assignor would materially change the duty of the Obligor or materially increase the burden or risk imposed on the Obligor by the contract or materially impair the Obligor’s chance of obtaining return performance or materially reduce its value to the Obligee; or

(b) assignment is precluded by contract.

(2) A contractual obligation can be delegated unless:

(a) the Obligee has a substantial interest in having the Obligor perform or control the acts promised; or

(b) the delegation is precluded by contract.

(3) Neither delegation of performance nor a contract to assume the duty made with the Obligor by the person delegated discharges any obligation or liability of the delegating Obligor.

95. Contractual prohibition of assignment

(1) Unless the circumstances indicate the contrary, a contract term prohibiting assignment of the contract bars only the delegation to an assignee of the performance by the assignor of a duty or condition.

(2) A contract term prohibiting assignment of rights under the contract, unless a different intention is manifested:

(a) is for the benefit of the Obligor and does not prevent:

(i) the assignee from acquiring rights against the assignor; or

(ii) the Obligor from discharging the Obligor’s duty as if there were no such term; and

(b) gives the Obligor a right to damages for breach of the terms forbidding assignment but does not render the assignment ineffective; and

(c) does not prevent assignment of a right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of the assignor’s entire obligation.

96. Interpretation of words of assignment—effect of acceptance of assignment

(1) Unless the language or the circumstances indicate the contrary, as in an assignment for security, an assignment of a contract or of all rights under a contract or an assignment in similar general terms includes a delegation of the unperformed duties of the assignor under the contract.

(2) Unless the language or the circumstances indicate the contrary, the acceptance by an assignee of the assignment operates as a promise to the assignor to perform the assignor’s unperformed obligations, and the Obligor of the assigned rights is an intended beneficiary of the promise.

97. Contracts to assign in the future or to transfer future proceeds

A contract to make a future assignment of a right, or to transfer proceeds to be received in the future by the Obligor, is not an assignment.

98. Defences against assignee

(1) By an assignment, the assignee acquires a right against the Obligor only to the extent that the Obligor is under a duty to the assignor and, if the right of the assignor would be voidable by the Obligor or unenforceable against the Obligor if no assignment had been made, the right of the assignee is subject to the infirmity.

(2) The right of an assignee is subject to any defence or claim of the Obligor that accrues before the Obligor receives notification of the assignment, but not to defences or claims that accrue afterwards, except as stated in this section.

(3) If the right of an assignor is subject to discharge or modification in whole or in part by impracticability, public policy, non-occurrence of a condition or present or prospective failure of performance by an Obligee, the right of the assignee is to that extent subject to discharge or modification even after the Obligor receives notification of the assignment.

(4) An assignee’s right against the Obligor is subject to any defence or claim arising from the assignee’s conduct or to which the assignee was subject as a party or a prior assignee because the assignee had notice.

99. Discharge of Obligor on assignment

(1) Except as provided by subsection (2) or as otherwise agreed between the assignor and assignee, on an assignment, any right of the assignor to discharge or modify the duty of the Obligor to the assignee is transferred to the assignee.

(2) An agreement between an assignor and an Obligor to discharge or modify the duties of the Obligor made after assignment of the rights of the assignor and prior to the notification
to the Obligor of the assignment of the rights is effective as against the assignee.

(3) If, notwithstanding the assignment of an assignor’s rights to an assignee, the assignor receives payment or other performance of the duties of an Obligor who has no notice of the assignment of the rights of the assignor, the assignor is liable to account to the assignee for the benefit of the payment or other performance.

(4) Notwithstanding a defect in the right of an assignee, the assignee has the same power the assignee’s assignor had to discharge or modify the duty of the Obligor to the extent that the Obligor gives value or otherwise changes the Obligor’s position in good faith and without knowledge or reason to know of the defect.

100. Substituted performance

(1) If an Obligee accepts in satisfaction of the Obligor’s obligation a performance offered by the Obligor that differs from what is due, the obligation is discharged.

(2) If an Obligee accepts in satisfaction of the Obligor’s obligation a performance offered by a third person, the obligation is discharged, but an Obligor who has not previously assented to the performance of the obligation may in a reasonable time after learning of it render the discharge inoperative from the beginning by disclaimer.

101. Substituted contract

(1) A substituted contract is a contract that is itself accepted by the Obligee in satisfaction of the Obligor’s existing obligation.

(2) The substituted contract discharges the original obligation and breach of the substituted contract by the Obligor does not give the Obligee a right to enforce the original obligation.

102. Novation

A novation is a substituted contract that includes as a party a person who was neither the Obligor nor the Obligee of the original obligation.

103. Accord and satisfaction

(1) An accord is a contract under which an Obligee promises to accept a stated performance in satisfaction of the Obligor’s existing obligation. Performance of the accord discharges the original obligation.

(2) Until performance of the accord, the original obligation is suspended unless there is a breach of the accord by the Obligor that discharges the new obligation of the Obligee to accept the performance in satisfaction. If there is such a breach, the Obligee may enforce either the original obligation or any obligation under the accord.

(3) Breach of the accord by the Obligee does not discharge the original obligation, but the Obligor may require specific performance of the accord, in addition to any claim for damages in respect of the breach arising under these Regulations.
PART 10: RIGHTS OF THIRD PARTIES
104. Right of Third Party to enforce contractual term

(1) Subject to these Regulations, a Third Party to a contract may in the Third Party’s own right enforce a term of the contract if:

(a) the contract expressly provides that the Third Party may enforce the term; or

(b) subject to subsection (2), the term purports to confer a benefit on the Third Party.

(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the Third Party.

(3) The Third Party must be expressly identified in the contract by name, as a member of a class or as answering a particular description, but need not be in existence when the contract is entered into.

(4) This section does not confer a right on the Third Party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

(5) For the purpose of exercising the Third Party’s right to enforce a term of the contract, the Third Party has any remedy that would have been available to the Third Party in an action for breach of contract if the Third Party had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief apply accordingly).

(6) If a term of the contract excludes or limits liability in relation to any matter, a reference in these Regulations to the Third Party enforcing the term includes a reference to the Third Party taking advantage of the exclusion or limitation.

105. Variation and rescission of contract

(1) Subject this section, if a Third Party has a right under section 104 to enforce a term of the contract, the parties to the contract may not, by agreement, rescind the contract or vary it in a way that extinguishes or alters the Third Party’s entitlement under that right without the Third Party’s consent if:

(a) the Third Party has communicated the Third Party’s assent to the term to the Promisor; or

(b) the Promisor is aware that the Third Party has relied on the term; or

(c) the Promisor can reasonably be expected to have foreseen that the Third Party would rely on the term and the Third Party has in fact relied on it.

(2) The assent referred to in subsection (1)(a):

(a) may be by words or conduct; and

(b) if sent to the Promisor by post or other means, is not to be regarded as communicated to the Promisor until received by the Promisor.

(3) Subsection (1) is subject to any express term of the contract under which:

(a) the parties to the contract may by agreement rescind or vary the contract without the consent of the Third Party; or

(b) the consent of the Third Party is required in circumstances specified in the contract instead of those set out in subsection (1)(a) to (c).

(4) If the consent of a Third Party is required under subsection (1) or (3), the Court may, on the application of the parties to the contract, dispense with the Third Party’s consent if satisfied:

(a) that the consent cannot be obtained because the Third Party’s whereabouts cannot reasonably be ascertained, or

(b) that the Third Party is mentally incapable of giving consent.

(5) The Court may, on the application of the parties to a contract, dispense with any consent that may be required under subsection (1)(c) if satisfied that it cannot reasonably be ascertained whether or not the Third Party has in fact relied on the term.

(6) If the Court dispenses with a Third Party’s consent, it may impose the conditions it thinks fit, including a condition requiring the payment of compensation to the Third Party.

106. Defences available to Promisor

(1) Subsections (2) to (5) apply if, in reliance on this subsection, proceedings for the enforcement of a term of a contract are brought by a Third Party.

(2) The Promisor has available by way of defence or set-off any matter that:

(a) arises from or in connection with the contract and is relevant to the term; and

(b) would have been available to the Promisor by way of defence or set-off if the proceedings had been brought by the Promisee.

(3) The Promisor also has available by way of defence or set-off any matter if:

(a) an express term of the contract provides for it to be available to the Promisor in proceedings brought by the Third Party; and

(b) it would have been available to the Promisor by way of defence or set-off if the proceedings had been brought by the Promisee.

(4) The Promisor also has available:

(a) by way of defence or set-off any matter; and

(b) by way of counterclaim any matter not arising from the contract;

that would have been available to the Promisor by way of defence or set-off or, as the case may be, by way of counterclaim against the Third Party if the Third Party had been a party to the contract.

(5) Subsections (2) and (4) are subject to any express term of the contract as to the matters that are not to be available to the Promisor by way of defence, set-off or counterclaim.

107. Enforcement of contract by Promisee

Section 104 does not affect any right of the Promisee to enforce any term of the contract.

108. Protection of Promisor from double liability

If under section 104 a term of a contract is enforceable by a Third Party and the Promisee has recovered from the Promisor a sum in respect of:

(a) the Third Party’s loss in respect of the term; or

(b) the expense to the Promisee of making good to the Third Party the default of the Promisor,
then, in any proceedings brought in reliance on that section by the Third Party, the Court must reduce any award to the Third Party to the extent it thinks appropriate to take account of the sum recovered by the Promisee.
PART 11: DAMAGES
109. Right to damages

Any non-performance gives the aggrieved party a right to damages either exclusively or in conjunction with any other remedies unless the non-performance is excused under these Regulations.

110. Full compensation

The aggrieved party is entitled to full compensation for harm sustained as a result of the non- performance. The harm includes both any loss that the party suffered and any gain of which the party was deprived, taking into account any gain to the party resulting from the party’s avoidance of cost or harm.

111. Measure of damages

Subject to the limitations stated in this Part, the injured party has a right to damages as measured by:

(a) the loss in the value to the injured party of the other party’s performance caused by that party’s failure or deficiency; plus

(b) any other loss, including incidental or consequential loss, caused by the breach; less

(c) any cost or other loss that the injured party has avoided by not having to perform.

112. Certainty of harm

(1) Compensation is due only for harm, including future harm, that is established with a reasonable degree of certainty.

(2) Compensation may be due for the loss of a chance in proportion to the probability of its occurrence.

(3) If the amount of damages cannot be established with a sufficient degree of certainty, the assessment is at the discretion of the Court.

113. Foreseeability of harm

The non-performing party is liable only for harm that the party foresaw or could reasonably have foreseen at the time of the conclusion of the contract as being likely to result from its non- performance.

114. Proof of harm in case of replacement transaction

If the aggrieved party has terminated the contract and has made a replacement transaction within a reasonable time and in a reasonable manner, the party may recover the difference between the contract price and the price of the replacement transaction as well as damages for any further harm.

115. Proof of harm by current price

(1) If the aggrieved party has terminated the contract and has not made a replacement transaction but there is a current price for the performance contracted for, the party may recover the difference between the contract price and the price current at the time the contract is terminated as well as damages for any further harm.

(2) A current price is the price generally charged for goods delivered or services rendered in comparable circumstances at the place where the contract should have been performed or, if there is no current price at that place, the current price at another place that appears reasonable to take as a reference.

116. Harm due in part to aggrieved party

If the harm is due in part to an act or omission of the aggrieved party or to another event as to which that party bears the risk, the amount of damages must be reduced to the extent that these factors have contributed to the harm, having regard to the conduct of each of the parties.

117. Mitigation of harm

(1) The non-performing party is not liable for harm suffered by the aggrieved party to the extent that the harm could have been reduced by the aggrieved party taking reasonable steps.

(2) The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce the harm.

118. Interest for failure to pay money

(1) If a party does not pay a sum of money when it falls due, the aggrieved party is entitled to interest on that sum from the time when payment is due to the time of payment whether or not the non-payment is excused.

(2) The rate of interest must be the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place for payment.

(3) The aggrieved party is entitled to additional damages if the non-payment caused the party a greater harm.

119. Interest on damages

Interest on damages for non-performance of non-monetary obligations accrues as from the time of non-performance.

120. Manner of monetary redress

Damages are to be paid in a lump sum.

121. Currency in which to assess damages

Damages are to be assessed either in the currency in which the monetary obligation was expressed or in the currency in which the harm was suffered, whichever is more appropriate.

122. Agreed payment for non-performance

(1) If the contract provides that a party who does not perform is to pay a specified sum to the aggrieved party for the non-performance, the aggrieved party is entitled to that sum irrespective of the actual harm suffered by it.

(2) However, notwithstanding any agreement to the contrary, the specified sum may be reduced to a reasonable amount if it is grossly excessive in relation to the harm resulting
from the non-performance and to the other circumstances.

123. Limitation

(1) An action for breach of any contract must be commenced within 6 years after the cause of action accrues or, in the case of fraud, the aggrieved party becomes aware of the fraud. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.

(2) Subject to subsection (1), a cause of action occurs when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.
PART 12: AGENCY
124. Agency—Principal and Agent

(1) Agency is the relationship that results from the consent by a person to another person that the other person is to act on the first person’s behalf, and consent by the other person so to act.

(2) The person for whom the action is taken is the Principal.

(3) The person who is to act on behalf of the Principal is the Agent.

(4) In this Part, an Agent includes, if appropriate, an apparent Agent.

125. General Agent and Special Agent

(1) A General Agent is an Agent authorised to conduct a series of transactions involving continuity of service.

(2) A Special Agent is an Agent authorised to conduct a single transaction or a series of transactions not involving continuity of service.

126. Disclosed Principal, Partially Disclosed Principal and Undisclosed Principal

(1) If, at the time of a transaction conducted by an Agent, the other party has notice that the Agent is acting for a Principal and of the Principal’s identity, the Principal is a Disclosed Principal.

(2) If the other party has notice that the Agent is or may be acting for a Principal but does not have notice of the Principal’s identity, the Principal for whom the Agent is acting is a Partially Disclosed Principal.

(3) If the other party has no notice that the Agent is acting for a Principal, the Principal for whom the Agent is acting is an Undisclosed Principal.

127. Consent

An agency relation exists only if there has been consent by the Principal to the Agent that the Agent may act on the Principal’s account and consent by the Agent so to act.

128. Authority

Authority is the power of the Agent to affect the legal relations of the Principal by acts done in accordance with the Principal’s consent.

129. Creation of authority

Except for the performance of transactions required by these Regulations to be authorised in a particular way, authority to do an act can be created by written or spoken words or other conduct of the Principal.

130. Apparent authority

Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as Agent for the other, arising from and in accordance with the other’s conduct towards the third persons.

131. Creation of apparent authority

Except for the conduct of transactions required by these Regulations to be authorised in a particular way, apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the Principal that, reasonably interpreted, causes the third person to believe that the Principal consents to have the act done on the Principal’s behalf by the person purporting to act for the Principal.

132. Applicability of rules for interpretation of agreements

Except as provided in this Part, the rules for the interpretation of contracts apply to the interpretation of authority.

133. When incidental authority is inferred

Authority to conduct a transaction includes authority to do acts that are incidental to it, usually accompany it or are reasonably necessary to accomplish it.

134. Inference that Agent is to act only for Principal’s benefit

Authority to act as Agent includes only authority to act for the benefit of the Principal.

135. General principle of interpretation

An Agent is authorised to do, and to do only, what it is reasonable for the Agent to infer that the Principal desires the Agent to do in the light of the Principal’s manifestations and the facts as the Agent knows or should know them at the time the Agent acts.

136. Duty of care and skill

(1) A paid Agent is subject to a duty to the Principal to act with the standard of care and with the skill that is standard in the locality for the kind of work that the Agent is employed to perform and, in addition, to exercise any special skill that the Agent has.

(2) A gratuitous Agent is under a duty to the Principal to act with the care and skill required of persons not Agents performing similar gratuitous undertakings for others.

137. Duty of loyalty

An Agent is subject to a duty to the Agent’s Principal to act solely for the benefit of the Principal in all matters connected with the agency.

138. Duty to account for profits arising out of employment

An Agent who makes a profit in connection with transactions conducted by the Agent on behalf of the Principal is under a duty to give the profit to the Principal.

139. Duty not to act as adverse party without Principal’s consent

An Agent is subject to a duty not to deal with the Agent’s Principal as an adverse party in a transaction connected with the agency without the Principal’s consent.

140. Duty not to compete as to subject matter of agency

An Agent is subject to a duty not to compete with the Principal concerning the subject matter of
the agency.

141. Duty not to act for persons with conflicting interests

An Agent is subject to a duty not to act or to agree to act during the period of the agency for persons whose interests conflict with those of the Principal in matters in which the Agent is employed.

142. Duty not to use or disclose confidential information

An Agent is subject to a duty to the Principal not to use or to communicate information confidentially given to the Agent by the Principal or acquired by the Agent during the course of or on account of the agency or in breach of the Agent’s duties as Agent, in competition with or to the detriment of the Principal, on the Agent’s own account or on behalf of another person, although the information does not relate to the transaction in which the Agent is then employed, unless the information is a matter of general knowledge.

143. Period of employment

Unless otherwise agreed, mutual promises by Principal and Agent to employ and to serve create obligations to employ and to serve that are terminable on notice by either party. If neither party terminates the employment, it may terminate by lapse of time or by supervening events.

144. Continuing duties after termination of agency

(1) After the termination of the agency, the Agent:

(a) has no duty not to compete with the Principal; and

(b) has a duty to the Principal not to use or to disclose to third persons, on the Agent’s own account or on account of others, in competition with the Principal or to the Principal’s detriment, trade secrets, written lists of names, or other similar confidential matters given to the Agent only for the Principal’s use or acquired by the Agent in breach of duty; and

(c) has a duty to account for profits made by the sale or use of trade secrets and other confidential information, whether or not in competition with the Principal; and

(d) has a duty to the Principal not to take advantage of a subsisting confidential relationship created during the agency relationship.

(2) Despite subsection (1)(b), the Agent is entitled to use general information concerning the method of business of the Principal and the names of the customers retained in the Agent’s memory, if not acquired in breach of the Agent’s duty as Agent.

145. Liability for loss caused

An Agent is subject to liability for loss caused to the Principal by any breach of duty by the Agent.

146. Liability for things received in breach of duty of loyalty

If an Agent receives anything as a result of the Agent’s breach of a duty of loyalty to the Principal, the Agent is subject to a liability to deliver it, its value, or its proceeds, to the Principal.

147. Liability for use of Principal’s assets
An Agent who, in breach of duty to the Agent’s Principal, uses for the Agent’s own purposes or those of a third person assets of the Principal’s business is subject to liability to the Principal for the value of the use. If the use produces a profit, the Agent is liable to the Principal for the profit.

148. Principal’s choice of remedies

(1) If an Agent has received a benefit as a result of breach the Agent’s duty of loyalty, the Principal is entitled to recover from the Agent what the Agent has so received, its value, or its proceeds, and also the amount of damage caused by the breach. However, if the breach consists of the wrongful disposal of the Principal’s property, the Principal cannot recover its value and also what the Agent received in exchange for the property.

(2) A Principal who has recovered damages from a third person because of an Agent’s breach of the Agent’s duty of loyalty is entitled to obtain from the Agent any profit that the Agent improperly received as a result of the transaction.

149. Duty of indemnity

(1) A Principal is under a duty to indemnify the Agent in accordance with the terms of the agreement with the Agent.

(2) The Principal has a duty to indemnify the Agent if the Agent:

(a) makes a payment authorised by the Principal, made necessary in executing the Principal’s affairs or beneficial to the Principal; or

(b) suffers a loss that, because of their relationship, it is fair that the Principal should bear.

150. When duty of indemnity exists

A Principal is subject to a duty to exonerate an Agent who is not barred by the illegality of the Agent’s conduct to indemnify the Agent for:

(a) authorised payments made by the Agent on behalf of the Principal; and

(b) payments on contracts on which the Agent is authorised to become liable, and on obligations arising from the possession or ownership of things that the Agent is authorised to hold on account of the Principal; and

(c) payments of damages to third persons that the Agent is required to make on account of the authorised performance of an act that constitutes a breach of contract or is otherwise actionable; and

(d) expenses of defending actions by third persons brought because of the Agent’s authorised conduct, if the actions are unfounded but not brought in bad faith; and

(e) payments resulting in benefit to the Principal, made by the Agent under circumstances that it would be inequitable for it not to be indemnified.

151. When no duty of indemnity

The Principal is not subject to a duty to indemnify an Agent:

(a) for pecuniary loss or other harm, not of benefit to the Principal, arising from the performance of unauthorised acts or resulting solely from the Agent’s negligence or other
fault; or

(b) if the Principal has otherwise performed the Principal’s duties to the Agent, for physical harm caused by the performance of authorised acts, for harm suffered as a result of wrongful acts committed upon the Agent by third persons because of the Agent’s employment or for harm suffered by the refusal of third persons to deal with the Agent; or

(c) if the Agent’s loss resulted from an enterprise that the Agent knew to be illegal.

152. Ratification

Ratification is the affirmation by a person of a prior act that did not bind the person, but was done or professedly done on the person’s account, if the act, as to some or all persons, is given effect as if originally authorised by the person.

153. Affirmation

Affirmation is an election (which may be express or implied, including by conduct) by a person on whose account an unauthorised act has been done to treat the act as authorised.

154. What acts can be ratified

An act cannot be ratified if the purported or intended Principal could not have authorised the act at the time it was performed.

155. Purporting to act as Agent as a requisite for ratification

Ratification does not result from the affirmation of a transaction with a third person unless the person acting purported to be acting for the ratifier.

156. Who can affirm

To become effective as ratification, the affirmation must be by the person identified as the Principal at the time of the original act or, if no person was then identified, by the person for whom the Agent intended to act.

157. Affirmation after rights have crystallised

If, in order to be effective in creating a right against another person or to deprive another person of a right, an act must be performed before a specific time, an affirmation is not effective against the other person unless made before the time.

158. Effect of ratification

On ratification, the Principal becomes responsible for contracts made for the Principal by a person purporting to act on the Principal’s account as if the transaction had been authorised, if there has been no supervening loss of capacity by the Principal or change in the law that would render illegal the authorisation or performance of the transaction.

159. Revocation of authority

Authority terminates if the Principal or the Agent notifies the other of its termination.

160. Liability based on agency principles

The liability of the Principal to a third person on a transaction concluded by an Agent, or the
transfer of the Principal’s interests by an Agent, may be based on the fact that:

(a) the Agent was authorised; or

(b) the Agent was apparently authorised; or

(c) the Agent had a power arising from the agency relation and not dependent on authority or apparent authority.

161. Liability of Disclosed or Partially Disclosed Principal—general rule

A Disclosed or Partially Disclosed Principal is liable on contracts made by an Agent acting within the Agent’s authority.

162. Liability of Disclosed or Partially Disclosed Principal—apparent authority

A Disclosed or Partially Disclosed Principal is liable on contracts made by an Agent acting within the Agent’s apparent authority. The rules as to the liability of a Principal for authorised acts apply to unauthorised acts that are apparently authorised.

163. Unauthorised acts of General Agent

A Disclosed or Partially Disclosed Principal is liable for acts done on the Principal’s account by a General Agent that usually accompany or are incidental to transactions that the Agent is authorised to conduct unless the other party has notice that the Agent is not so authorised.

164. Unauthorised acts of Special Agents

A Special Agent for a Disclosed or partly Disclosed Principal has no power to bind the Agent’s Principal by contracts that the Agent is not authorised or apparently authorised to make, unless:

(a) the Agent’s only departure from the Agent’s authority or apparent authority is:

(i) in naming or disclosing the Principal; or

(ii) in being negligent in determining the facts on which the Agent’s authority is based; or

(iii) in making misrepresentations; or

(b) the Agent is given possession of goods or commercial documents with authority to deal with them.

165. Rights between third person and Agent

The liability of a Disclosed or Partially Disclosed Principal is not affected by any rights or liabilities existing between the other party and the Agent at the time the contract is made.

166. Defences of Principal—general

A Disclosed or Partially Disclosed Principal is entitled to all defences arising out of a transaction between the Principal’s Agent and a third person. The Principal is not entitled to defences that are personal to the Agent.

167. Undisclosed Principal—general rule
An Undisclosed Principal is bound by contracts made on the Principal’s account by an Agent acting within the Agent’s authority. However, the Principal is not bound by a contract that is still subject to negotiations, or on a contract that excludes the Principal.

168. Acts of General Agents

A General Agent for an Undisclosed Principal authorised to conduct transactions may subject the Principal to liability for acts done on the Principal’s account, if usual or necessary in the transactions, although forbidden by the Principal to do them.

169. Acts of manager appearing to be owner

An Undisclosed Principal who entrusts an Agent with the management of the Principal’s business is subject to liability to third persons with whom the Agent enters into transactions usual in such businesses and on the Principal’s account, although contrary to the directions of the Principal.

170. Unauthorised acts of Special Agents

A Special Agent for an Undisclosed Principal has no power to bind the Principal by contracts that the Agent is not authorised to make, unless:

(a) the Agent’s only departure from the Agent’s authority is:

(i) in not disclosing the Principal; or

(ii) in being negligent in determining the facts on which the Agent’s authority is based; or

(iii) in making misrepresentations; or

(b) the Agent is given possession of good or commercial documents with authority to deal with them.

171. Defences of Undisclosed Principal—general

An Undisclosed Principal is entitled to all defences arising out of a transaction made by an Agent, but not defences that are personal to the Agent.

172. Power of Agent to modify contract before disclosure of Principal

Until the existence of a Principal is disclosed, an Agent who has made a contract for an
Undisclosed Principal has power to cancel the contract and to modify it with binding effect on the
Principal if the cancellation or modification is authorised or is within the inherent power of the Agent to make.

173. Contracts, disclosed agency—general rule

The other party to a contract made by an Agent for a Disclosed or Partially Disclosed Principal acting within the Agent’s authority, apparent authority or other agency power is liable to the Principal as if the other party had contracted directly with the Principal, unless the Principal is excluded as a party by the form or terms of the contract.

174. Defences of other party

The other party to a contract made by an Agent on behalf of a Disclosed or Partially Disclosed
Principal has all the defences that the other party would have had against the Principal if the
Principal had made the contract under the same circumstance.

175. Rights between other party and Agent

The liability of the other party to a Disclosed or Partially Disclosed Principal on a contract made by an Agent is not affected by any rights or liabilities then existing between the other party and the Agent.

176. Contracts under undisclosed agency—general rule

A person who makes a contract with a person acting as an Agent of an Undisclosed Principal is liable to the Principal as if the Principal had made the contract with the person, unless:

(a) the person is excluded by the form or terms of the contract; or

(b) the Principal’s existence is fraudulently concealed; or

(c) there is set-off or a similar defence against the Agent.

177. Principal excluded from transaction

A person with whom an Agent makes a contract on account of an Undisclosed Principal is not liable in an action at law brought on the contract by the Principal if:

(a) the contract is in the form of a negotiable instrument; or

(b) the terms of the contract exclude liability to any Undisclosed Principal or to the particular Principal.

178. Rights between other party and Agent

(1) Subject to subsection (2), the liability to an Undisclosed Principal of a person dealing with the Agent within the Agent’s power to bind the Principal is diminished by any claim that the person may have against the Agent from the time of formation of the contract until the existence of the Principal becomes known to the person, if the person could set off the claim in an action against the Agent.

(2) Subsection (1) does not apply if the Agent is authorised only to contract in the Principal’s name.

179. Defences of other party

In an action by an Undisclosed Principal against the other party to a contract, the other party has all the defences, except those of a purely procedural nature, that:

(a) the other party would have had against the Agent if the Agent had made the contract under the same circumstance; and

(b) the other party had against the Agent until the discovery of the Principal, unless the Agent was authorised to contract only in the Principal’s name.

180. Status of Agent as party to a contract

(1) A person making or purporting to make a contract with another person as Agent for a Disclosed Principal does not become a party to the contract.
(2) A person purporting to make a contract with another person for a Partially Disclosed or Undisclosed Principal is a party to the contract.

(3) An Agent, by making a contract only on behalf of a competent Disclosed or Partially Disclosed Principal that the Agent has power so to bind, does not become liable for its non-performance.

181. Agent who warrants authority

A person who purports to make a contract or representation on behalf of another person who has full capacity, but whom the person had no power to bind, becomes subject to liability to the other party on an implied warranty of authority, unless the other party knows or agrees that the Agent is not so authorised.

182. Defences of Agent

In an action against an Agent on a contract between a third person and the Principal to which the Agent is a party, defences that are personal to the Principal are not available to the Agent.

183. Agent surety for Principal

In an action brought against an Agent on a contract to which the Agent is a party but under which the primary duty of performance rests on the Principal, the Agent has the defences available to a surety.

184. Election by other party to hold Principal—agency undisclosed

An Agent who has made a contract on behalf of an Undisclosed Principal is not relieved from liability by the determination of the other party to the contract to look to the Principal alone for the performance of the contract.
SCHEDULE 1: INTERPRETATION
1. Place of business

If a party to a contract has more than 1 place of business, the relevant place of business is the place of business that has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract.

2. Definitions for these Regulations

In these Regulations, unless the contrary intention appears:

Addressee, for an Electronic Communication, means a party who is intended by the Originator to receive the Electronic Communication, but does not include a Person acting as an intermediary for the Electronic Communication.

AIFC means the Astana International Financial Centre.

AIFC Bodies has the meaning given by article 9 of the Constitutional Statute and the document entitled The Structure of the Bodies of the Astana International Financial Centre adopted by the Management Council on 26 May 2016.

AIFC Participants has the meaning given by article 1(5) of the Constitutional Statute.

Constitutional Statute means Constitutional Statute of the Republic of Kazakhstan dated 7 December 2015 entitled On the Astana International Financial Centre.

Court means the Astana International Financial Centre Court.

Day means a day that is a normal working day in the Astana International Financial Centre.

Electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
Electronic Communication means any communication made using Electronic Records.

Electronic Record means a Record created, generated, sent, communicated, received, or stored, by Electronic means.

Information means data, text, images, sounds, codes, computer programs, software, databases, or similar things.

Information System means a system for creating, generating, sending, communicating, receiving, storing, or otherwise processing, Electronic Records.

Management Council means the Management Council of the Astana International Financial Centre.

Management Council Resolution on AIFC Bodies means The Structure of the Bodies of the Astana International Financial Centre, adopted by resolution of the Management Council on 26 May 2016, as amended by resolution of the Management Council, The Amendments and supplementations to the Structure of the Bodies of the Astana International Financial Centre, adopted on 9 October 2017.

Mistake means, in relation to a contract, an erroneous assumption relating to facts or to law existing when the contract was concluded.

Obligee means, in relation to an obligation, a party who is entitled to performance of the obligation.

Obligor means, in relation to an obligation, a party who is to perform the obligation.

Originator, for an Electronic Communication, means a party by whom, or on whose behalf, the Electronic Communication has been generated, sent or communicated before storage (if any), but it does not include a Person acting as an intermediary for the Electronic Communication.
Person includes any natural person or incorporated or unincorporated body, including a company, partnership, unincorporated association, government or state.

Promisee, in relation to a term of a contract that is enforceable by a Third Party, means the party to the contract by whom the term is enforceable against the Promisor.

Promisor, in relation to a term of a contract that is enforceable by a Third Party, means the party to the contract against whom the term is enforceable by the Third Party.

Record means Information that is inscribed on a tangible medium, or that is stored in an Electronic or other medium, and is retrievable in perceivable form.

Third Party to a contract means a person who is not a party to the contract.

Writing means any mode of communication that preserves a record of the information contained in the communication and is capable of being reproduced in tangible form, including by electronic means.

Year means a calendar year according to the Gregorian calendar.