CIVIL CODE OF THE REPUBLIC OF KOSOVO
BOOK ONE
GENERAL PART
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BOOK TWO
OBLIGATIONS
PART I
GENERAL PROVISIONS
TITLEI
BASICPRINCIPLES
Article 1
Definition of obligation
1. An obligation is a duty to perform which one party to a legal relationship, the debtor, owes to another party, the creditor.
2. An obligation may arise from a contract, damage caused to another[unlawful act], unjust enrichment,management of another’s affairs, unilateral acts and any other fact which is capable of generating it according to the law.
3. Parties to an obligation may be either natural or legal persons.
Article 2
Freedom of contract
1. Parties are free to regulate their contractual relations according to their will, subject to the limits established by mandatory provisions, public order and good custom.
2. Within the limits referred to in paragraph 1, parties may conclude contracts other than those foreseen by law and determine their contents.
Article 3
Good faith
1. When performing their obligations, pursuing a remedy for non-performance, or exercising a right to terminate an obligation,the parties shall observe the principle of good faith.
2. Good faith refers to a standard of conduct characterised by honesty, openness and consideration for the interests of the other party to an obligation.
Article 4
Duty of cooperation
1. Parties to an obligation have a duty to cooperate with each other in the performance of their obligations.
2. Parties to an obligation must refrain from any action by which the performance of the obligations of other parties would be rendered more difficult.
Article 5
Abuse of a right
Any conduct by which the holder of a right manifestly acts with the sole purpose of harming another shall be deemed an abuse of a right. The abuse of a right is not protected by law.
Article6
Duty of care
1. Parties to an obligation must act with the diligence required by the nature of their obligations and which can reasonably be expected in the circumstances.
2. When fulfilling obligations deriving from their professional activity, parties to an obligation must exercise the higher duty of care required by law. If they are members of a group of professionals for which standards have been set by a relevant authority or by the group itself, they must exercise the care expressed in those standards.
Article 7
Other legal transactions
Unless the law provides otherwise, the provisions regulating contracts shall also apply to other legal transactions as far as practicable.
Article 8
Scope of application
The provisions of this Book shall apply to obligations regulated by other laws to the extent that such laws do not govern matters which are governed by this Book.
TITLE II
SOURCES OF OBLIGATION
CHAPTER I
CONTRACTS
SUB-CHAPTERI
GENERAL PROVISIONS
Article 9
Definitionof contract
A contract is an agreement between two or more parties which is intended to establish, regulate or extinguish a binding legal relationship among themselves, or to have some other legal effect.
Article 10
Effects of a contract
1. A contract creates rights and obligations for the contractingparties.
2. Acontract may grant a right in favor of a third person.
Article 11
Intention to conclude a contract
1. The intention to conclude a contract may be express or implied from conduct.
2. The intention to conclude a contract shall be free and genuine.
Article 12
Negotiations
1. Each party may cease negotiations at any time for any reason and is not liable for failure to reach an agreement.
2. A party that has negotiated with no real intention of reaching an agreement with the other party shall be liable for any damage caused duringnegotiations.
3. If the parties fail to reach an agreement they shall each bear their own costs with regard to negotiations and shall bear the joint costs in equalparts.
4. If confidential information is given by one party in the course of negotiations, the other party is under a duty not to disclose that information or use it for its own purposes whether or not a contract is subsequently reached. A party who is in breach of the duty is liable for any damage caused to the other party and shall restitute to the other party any benefit received as a result of the breach.
Article 13
Mandatory content of a contract
The mandatory provisions of law which set up in part or in full the content of a contract are an integral part of the contract and replace the contractual clauses that are inconsistent with them.
SUB-CHAPTERII
ESSENTIAL ELEMENTS
SECTION I
AGREEMENT OF PARTIES
I. CONCLUSION OF CONTRACT
Article 14
Essential elements
1. A contract is not concluded until the parties have reached an agreement on all essential elements of the contract.
2. The essential elements of a contract are:
2.1.The agreement of the parties;
2.2.The object;
2.3.The cause;
2.4.The form, when required by law and without prejudice to Article … [Performance of a contract lacking the required form].
3. The parties, after having agreed on essential elements of a contract, may defer an agreement on secondary terms. However, in the event of failure to reach an agreement on such terms, the court shall determine them having regard to the rules on interpretation of contracts.
Article 15
Time and place of conclusion of a contract
1. A contract is concluded when and at the place where the party who made the offer receives the acceptance of the other party.
2. In the case of acceptance by means of performance, the contract is concluded when notice of commencement of performance reaches the offeror. If, at the request of the offeror, by the nature of the contract, by virtue of practices which the parties have established between themselves or of usages, the other party may accept the offer without notice to the offeror, the contract is concluded when performance of the offer begins.
3. In the case of a contract concluded by electronic means, the contract is deemed concluded at the place where the offeror has his registered office or place of residence.
Article 16
Consent of a third party
1. If the consent of a third party is required for the conclusion of the contract, it may be given before or after the conclusionof the contract, unless stipulated otherwise bylaw.
2. The consentof a third party must be given in the form prescribed for the contract for which it is required.
II. OFFER
Article17 Offer
1. An offer is a proposal aiming to the conclusion of a contract.
2. A proposal amounts to an offer if it is made to one or more specific persons and contains the essential elements of the contract.
3. A proposal made to the public and containing the essential elements of a contract shall account as an offer, unless it follows otherwise from the circumstances or usages.
Article 18
Display of goods
The display of goods labelled with a price, and the proposal to supply goods from stock at a stated price made in a public advertisement, whether via broadcast, print, telephone or any other means such as the Internet, are treated as an offer until the stock of goods is exhausted, unless the circumstances or usages indicate otherwise.
Article 19
Catalogues andother notices
Catalogues, price lists, tariffs and other notices that are sent by post shall not be deemed offers for the conclusion of a contract, but merely invitations to make an offer.
Article 20
Revocation of offer
An offer may be revoked until the contract is concluded; however, the revocation is ineffective if the offer indicates that it is irrevocable, or if the offer states a fixed time for its acceptance.
Article21
Death or supervened incapacity of the offeror
An offer shall beineffective if the death or incapacity of the offeror occurs before it is accepted, unless the law provides otherwise.
III. ACCEPTANCE
Article 22
Acceptance
1. Acceptance is any statement or conduct which indicates the addressee’sassent to the offer.
2. The addressee’s silence or inactivity does not in itself amount to acceptance. However, if the addressee was obliged to not remain silent or inactive pursuant to the law or by agreement between the parties, by virtue of practices which the parties have established between themselves or of usages, the silence or inactivity of the addressee amounts to acceptance.
3. Without prejudice to Article …[Contract binding on offeror only], any clause in an offer whereby the silence or inaction of the addressee will be construed as acceptance of the offer shall be ineffective.
Article 23
Contract binding on offeror only
An offer for the conclusion of a contract that creates obligations only for the offeror is irrevocable as soon as it comes to the knowledge of the addressee. The latter can reject the offer within the time required by the nature of the contract or by usages. In the absence of such rejection the contract is deemed concluded.
Article 24
Form of offer
1. An offer for the conclusion of a contract for which a specific form is required by law shall be binding for the offeror only if submitted in suchform.
2. This rule shall also apply to the acceptance of theoffer.
Article 25
Time limit for acceptance
1. Acceptance of an offer is effective only if it reaches the offeror within the time fixed by the offeror, or required by the nature of the contract or by usages.
2. A late acceptance is nonetheless effective if the offeror immediately gives notice to the other party that it is treated as an effective acceptance.
3. If it is evident fromthe document containing a late acceptance that it would have reached the offeror in due timehad there been no delays in its transmission, the late acceptance is effective as an acceptance, unless the offeror immediately gives notice to the other party that he considers his offer as ineffective.
Article 26
Acceptance with different or additional terms
1. An acceptance which states or implies additions or modifications which substantially alter the terms of the offer amounts to a new offer.
2. If the additions or modifications stated or implied by an acceptance do not substantially alter the terms of the offer, the additional or different terms become part of the contract, unless the offer expressly limits acceptance to the terms of the offer or the offeror objects immediately.
3. Additions or modifications relating to the price, payment, quality and quantity of performance, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer substantially.
IV. PRECONTRACT
Article 27Definition
1. A precontract is a contract based on which the parties undertake the obligation to conclude a contractin the future.Aprecontractmay be made binding on either party or both parties.
2. The precontract shall contain the essential elements of the definitive contract.
Article 28
Form
Under the penalty of nullity, aprecontract shall be concluded in the same form required by law for the conclusion of the definitive contract.
Article 29
Time limit
1. The precontract shall stipulate the time limit for the conclusion of the definitive contract. If no time limit is stipulated, or the party entitled to set it under the precontractfails to do so, an appropriate time limit for performance is set by the court, failing an agreement between the parties.
2. The time limit for the conclusion of the definitive contract shall not be deemed essential, unless it follows otherwise fromthe intention of the parties or from the nature of the contract.
3. If a party fails to comply with the obligation to conclude the definitive contract,the other party may requestthat the courtorder the other partyto conclude the definitive contract by an appropriatetime limit.
4. The right provided for in paragraph 3 shall expiresix (6) months from the lapse of the time limit set for the conclusion of the definitive contract.
SECTION II
OBJECT
Article30
Object of obligation
1.The object of an obligation may consist in giving,doing or not doing something.
2.It must be possible, lawful,specific or specifiable.
Article 31
Nullcontract
A contract shall be null if the object of the obligation is absolutely impossible, unlawful, unspecific or unspecifiable.
Article 32 Subsequentpossibility
A contract concluded with a suspensive condition or time limit shall be valid if the object of the obligation, having initially been impossible, becomes possible before the condition is completed or before the time limitpasses.
Article33
Unlawful object
The object of an obligation shall be deemed unlawful if it contrary to mandatory provisions, public order and good custom.
Article34
When the object of an obligation isspecifiable
1.The object of an obligation shall be deemed specifiable if the contract contains information with which it is possible to specify the object, or if the parties have left it to a third person to specify theobject.
2.If such third person does not wish to or cannot specify the object of the obligation the contract shall be absolutely null.
SECTION III
CAUSE
Article 35
Lawful cause of contract
1. A contract must have a lawful cause.
2. The cause is unlawful if it is contrary to mandatory provisions, public order, or good custom.
3. Unless proved otherwise, it shall be presumed that each contract has a lawful cause.
4. If there is no cause or the cause is unlawful, the contract is null.
Article36
Motives for concludingcontract
1.The motives out of which a contract is concluded shall not affect itsvalidity.
2.If an unlawful motive had a significant effect on the decision by one of the contracting parties to conclude the contract and the other contracting party knew or should have known of such motive the contract shall be null.
3.A gratuitous contract shall also be null when the contracting party did not know that an unlawful motive had a significant effect on the decision by the other contractingparty.
SECTION IV
FORM
Article 37
Informality of contract
1. No particular form shall be required for the conclusion of a contract, unless otherwise provided by law.
2. A contract may be modified or terminated by the mere agreement of the parties, except when a specific form is required by law.
Article 38
Form required by law
1. When the law requires a specific form to conclude a contract, such requirement applies to all subsequent modifications to the contract.
2. A contract may only be terminated by the parties in the same form required by law for its conclusion.
3. Contracts must be drafted in the form of notary acts in the cases provided by law.
Article39
Agreed form
A contract which contains a term requiring any agreement to modify or terminate it to be in a certain form may not be otherwise modified or terminated. However, a party may be precluded by his conduct from asserting such a term to the extent that the other party has relied on that conduct.
Article 40
Lack of required form
1. Unless the law provides otherwise, a contract which is not concluded in the form prescribed by law is null.
2. When the parties agree that the contract must be concluded in a specific form, it shall be presumed that the contract is not intended to be legally binding unless it is in that form.
Article 41
Doubts over completeness of document
1.If a contract is concluded in a special form either pursuant to law or at the will of the parties only that which is expressed in such form shallapply.
2.Simultaneous verbal agreements on accessory points about which nothing is mentioned in the formal contract shall be valid if not in contravention of the content thereof or in contravention of the purpose for which the form isprescribed.
3.Subsequent simultaneous verbal agreements to reduce or alleviate the obligation of either or both of the parties shall also be valid if the special form is prescribed solely in the interest of the contracting parties.
Article 42
Drafting ofdocument
1.When the drafting of a document is required to enter into a contract, the contract is considered entered into when the document is signed by all parties obliged byit.
2.A contracting party who does not know to write on his own (illiterate) shall sign by placing his fingerprint on the document, to be verified by two witnesses, the court, or another authoritativeinstitution.
3.To enter into a two-party contract, it is sufficient that both parties sign a document, or that each party signs a copy of a document destined for the otherparty.
4.The requirement of written form is met if the parties exchange letters or agree through other means that enable both the content and the person who made the statement(s) be established withcertainty.
5.If the law does not provide otherwise, the form in writing may be replaced by electronic means, for which the provisions of the special law shallapply.
Article43
Performance of a contract lacking the required form
1. A contract for which a particular form is required by law shall be deemed valid even if not concluded in such form where the parties fully perform the obligations arising from the contract.
2. The provision of paragraph 1 shall not apply if a contract lacks the notarial form required by law.
SUB-CHAPTERIII
ACCIDENTAL ELEMENTS
SECTION I
CONDITIONS
Article 44
Effects
1.A contract shall be deemed to have been concluded under a condition if its initiation or termination is dependent on an uncertainevent.
2.If a contract is concluded under a suspensive condition and the condition is fulfilled the contract shall take effect from the moment of conclusion, unless it follows otherwise from law, the nature of the contract or the parties’intention.
3.If a contract is concluded under a dissolving condition the contract shall cease to be valid if the condition isfulfilled.
4.A condition shall be deemed to have been fulfilled if in contravention of the principle of fairness the party upon whom the burden was defined prevents it from being realised, and shall be deemed not to have been fulfilled if in contravention of the principle of conscientiousness and fairness the party for whom the benefit was defined causes it to berealised.
Article 45
Retrospective effect
If according to the content of the contract, the consequences that are created with the fulfillment of condition have an effect from an earlier period, in the event of the fulfillment of the present condition, participants are obliged to enable to each other what has been enabled to them, also as if the consequences have arisen at an earliermoment.
Article 46
Unlawful or impossible condition
1.A contract subject to a suspensive or dissolving condition which is contrary tomandatory provisions, public order and good custom shall be null.
2.A contract concluded under an impossible suspensive condition shall be null; an impossible dissolving condition shall be deemednon-existent.
Article 47
Securing of conditioned right
If a contract is concluded under a suspensive condition the creditor whose right is conditioned may request appropriate securing of the right, if the exercise thereof isendangered.
Article 48
Protection of conditional right
1.The beneficiary of the legal affair concluded under the delayed condition, may in the event of the fulfillment of the condition seek the compensation of damage from the other party if before the fulfillment of condition with his fault he has prevented or limited the realisation of the right deriving from this condition.