Some Structural Questions on the Relationship Between Contractual and Extracontractual Liability in the New Hungarian Civil Code

Abstract

The new Hungarian Civil Code turns the contractual liability regime upside down. First, the fault based liability for breach of (onerous) contracts has been replaced by a strict liability according to Article 79 CISG. Second, the foreseeability limitation on consequential damages and loss of profit has been implemented in line with Article 74 CISG. Third, the new regime has been topped by the exclusion of parallel damage claims in tort (if the breach of contract qualifies simultaneously as wrongful or tortious conduct), i.e. Non-Cumul, the French approach of an exclusionary relationship between contract and tort, has been introduced. This Chapter reports briefly on all three pillars of the reform but focuses primarily on the third one. Besides the reasons for Non-Cumul, its outcome in the new Hungarian Civil Code, as well as its effects and side-effects, will be analysed. Beyond some general questions at a structural level on the relationship between contractual and extracontractual liability, the predictable difficulties of distinction and qualification and also the inequitable differences between the damage claims asserted by a party to the contract and by third parties are dealt with.