'Obligations de resultat' and 'obligations de moyens': the Lithuanian experience

ENWhat is the standard of care which is expected from the contracting party who has to perform: should he do his best or is he responsible for a specific result? And when the performance allegedly is not in conformity with the contract, who should bear the burden of proof? Some legal systems, including that of Lithuania, distinguish between two types of obligations: the obligation of best efforts and the obligation to achieve a specific result. Other legal systems ignore the distinction or reject it. The acceptance or rejection of the distinction is one of the few issues which divide the Principles of European Contract Law (PECL) and the UNIDROIT Principles for International Commercial Contracts (UNIDROIT Principles). The UNIDROIT Principles have taken it up, whereas the PECL - while not rejecting it alltogether - have not seen fit to codify it. This paper will argue that the PECL approach is the better one. It must be admitted that it is not a wholly unbiased view, the author having served as the technical draftsperson of the PECL provisions concerned. The paper will also argue that the Lithuanian model is one which one can live quite well with, provided that the rule is taken as a hard and fast one and not as a dogmatic rule. This paper will first set out one of the relevant provisions of Lithuanian law (Nr. 2), then focus on French law where the distinction originates (Nr. 3) and on other European countries which have mixed feelings about it (Nr. 4). The different approaches of the two sets of Principles will then be sketched (Nr. 5), followed by an analysis (Nr. 6), an outlook for the future (Nr. 7) and some conclusions (Nr. 8).