1. The distinction in OHADAC domestic systems

The distinction drawn between the “duty of best efforts” or “duty of specific result” is based on the content and scope of the obligations assumed by the obligor in the contract. It may be an obligation to exert best efforts or an obligation requiring a specific result. This classification is a standard of French origin, which has been subsequently embraced by case law and is reflected in one way or another in the continental European civil law, although not does always formally bear the same name.

In the case of continental European civil law, the distinction is an important aspect related to the general method of allocating contractual liability based on fault. Continental European civil law has been built on the basis of fault as a criterion to measure the extent of the obligor's duty and default or the attribution of responsibility (Article 1.147 of the French Civil Code). In the case of the duty of best efforts, the diligence of the obligor is included in the content of the obligation so that the accreditation of a lack of diligence determines, per se, a breach of contract. However, in the case of the duty to achieve a specific result, the “fault” is of particular relevance as an autonomous element. It is usually seen as a circumstance “external” to the very content of the obligation, introducing a cause of exoneration from liability even in cases where the breach has been proved (e.g., the failure to obtain the result). Nevertheless, it is true that the various domestic laws have gradually shifted towards an objective approach to contractual liability (regardless of subjective attribution criterion) through presumptions of fault with respect to the duty to achieve a specific result which, in practice, require the obligor to prove his care to exonerate him from liability.

Conversely, the “obligation of means” category was unknown in common law systems. The “obligation of means” involves an analysis of the obligor's conduct with regard to more or less strict parameters of care. Such an element is not strange to civil law traditions, based on the requirement of fault as a criterion for the breach of contract or, where appropriate, for the attribution of responsibility for non-performance. It has meant, however, an innovation in common law systems, based on strict liability linked to the achievement of a result in the contract. Its starting point is the absolute commitment of the contracting parties for the implementation of the contract (strict liability) and therefore not achieving the intended purpose shall be deemed a breach of contract and it will result in the corresponding liability of the obligor, exclusively based on objectives criteria. Under these assumptions, the contract content is essential to determine the extent of the obligor's duties, forcing to define accurately and ex ante the commitments made and the causes for responsibility exemption mutually accepted. Taken to its logical conclusion, the definition of any obligation as an obligation of result, regardless of the diligence of the obligor, could be too burdensome for it, particularly in those contractual arrangements in which either difficult to define its result or achieve it directly is beyond the sole control of the obligor. On this basis, case law introduced modulations to the “strict liability”, especially using the technique of implied terms and recognising cases in which the commitment does not ensure the result but only requires the best efforts and consequently, non-achievement does not determine a default by the obligor.

These facts show that clauses of best efforts lighten the duties of the obligor by introducing a parameter analysis of subjective performance, traditionally not found in common law systems. This results in a dual liability system: the strict liability and liability based on best efforts, which resembles the continental law model with its distinction between duty to achieve a specific result and duty of best efforts. The Supply of Goods and Services Act 1982 therefore contains provisions of a sales contract as an example of a performance agreement falls within the scope of a commercial agreements and with the implied term that the goods will be delivered with a satisfactory quality (Sect. 14, Part I); on the other hand, in service contracts, the obligor is obliged only to carry out the service with reasonable care and skill but generally does not assume a result (Sec. 13 of Part II). In American law, Sections 2-306 of the UCC and 379 of the Restatement (Second) of Agency set out obligations, not of specific result, but which only determine the assumption of a commitment to act with a certain diligence.

From this perspective, the scope of the obligations of means assumed by the obligor in the continental systems matches the common law duty of best efforts. Insofar as civil law systems are progressively incorporating the unitary nature of the concept of non-performance and the tendency to objectify liability, the liability of the duty to achieve a specific result is also identical. In both cases, there is non-performance if the result does not meet any of the contractual obligations. With the introduction of fault into contractual non-performance, the initial characterisation of fault as an element of contractual liability has gradually lost its meaning, and this criterion is more linked to liability for tort. From this point of view, the common law duty of best efforts obligations and the diligence obligations in civil law are essentially similar. Differences between both systems will exist insofar as civil law regimes keep, in cases of obligations of result, diligence of the obligor as a criterion for attributing contractual liability.

One can find a similar pattern within the OHADAC legal systems. On the one hand, the civil law systems do not have a rating and a general definition of duties of best efforts and duties to achieve a result. This distinction is only obtained from the analysis of the various types of contracts incorporated in most civil codes, where obligations that may compromise a certain result and those in which the obligor only undertakes diligent conduct are identified. On this basis, a ranking of contract types is possible; an example of obligation of result is the contract of sale (transfer of ownership of the good) and an example of an obligation of best efforts is the contract of mandate or commission (the entrusted business management). The clearest civil code in this regard is the Guatemalan Civil Code, which distinguishes between work and service contracts (Articles 2.000, 2.032 and 2,033) and establishes a duty to achieve results for the first and a duty of care for the second. Similarly, service contracts are regulated in Article 2.615 of the Mexican Civil Code, the performance of which is measured by the level of care developed by the obligor. However, it is common to find both kinds of obligations in the same contract. This is, for example, the case of bailment contracts that contain both an obligation of delivery (of result) and an obligation to save and preserve the goods in a prudent and responsible manner (see, in this sense, among others, Article 1.928 of the Dominican Civil Code).

For its part, Commonwealth Caribbean law incorporates, similarly to English law, a delineation of duties based on sale and agency contracts, which correspond essentially to the obligation of a result or the mere duty of care by the obligor. With respect to the first cases, legal rules set implied conditions on the appropriateness of the product for the purpose of the contract, which will depend on the performance of certain established requirements [Section 16 (Ch. 393) of the Sale of Goods Act of Antigua and Barbuda; Section 16 (Ch. 337) of the Sale of Goods Act of Bahamas; Section 15 of the Sale of Goods Act of Barbados; Section 16 (Ch. 261) of the Sale of Goods Act of Belize; Section 15 (Ch. 349) of the Sale of Goods Act of Jamaica; Section 16 (Ch. 15.18) of the Sale of Goods Act of Montserrat; Section 16 (Ch. 82:30) of the Sale of Goods Act of Trinidad and Tobago]. By contrast, in the field of contracts such as agency, obligations of the agent are subject to reasonable care and skill, involving liability for damages for any breach of those obligations.

2. The distinction in the texts of contractual harmonisation

The various texts of contractual harmonisation include the distinction between duty of best efforts and duty to achieve a specific result. Article 5.1.4 UP shows the idea of a “transposition” of institutions based on the equivalence between the common law duty of best efforts and the continental obligation of means, as opposed to the obligations to achieve a result. The revision of the PECL proposed by the Association Henri Capitant incorporates the distinction between obligations of result and obligations of best efforts, introducing in the new Article 6:103 a similar regulation to the UNIDROIT Principles.

But it is in the DCFR that the distinction takes on a special relevance to determining the extent of the obligations in service contracts. These contracts usually aim at obligations of care (Section IV.C.-2: 105) and obligations to achieve a specific result (Section IV.C. - 2:106), aside from subsequent developments depending on the specific contractual agreements. Obligations to achieve a specific result are identified if they are established in the contract or if it is a result that the party could reasonably expect under the contract or it had no reason to believe that there was a substantial risk which would jeopardise obtaining that result with the agreed service. The importance of the model in the DCFR derived from the new concept on service contracts has a similar wording in the European Principles of Contract Services (Articles 1:107 and 1:108). Indeed, in these models the “radical” underlying distinction in domestic law between works contracts (usually linked to the performance contract) and services itself (usually linked to the means) is modified. In the DCFR, the definition of service contracts is broad and cross-cutting. They include contracts as diverse as construction, maintenance, storage, design, information, advice and medical treatment. As a consequence of this scope and cross-cutting nature, a direct and automatic association of service contracts to a mere obligation of best efforts is not possible. Moreover, it is not only provided, as a general rule, that service contracts produce results, but also that they establish presumption of results for certain specific service contracts, as it results in Subsection (1) of said Article IV.C.-2: 106.

The CESL shows a different approach from DCFR for service contracts related to sales [Article 2 (m) of the Proposal]. Such contracts are presumed to be obligations of best efforts, so that, unless they include a specific result, whether as a result of an express or implied obligation, the service provider is only bound by an obligation of care and skill. This article has been criticised for introducing a treatment clearly favourable to the service provider in a broad spectrum of contracts (contracts for installation, maintenance and repair, etc.), in contrast with a model of strict contractual liability. The position of the client, who assumes the burden of proof of the lack of diligent conduct of the obligor in each case, is weakened. However, it should also be noted that the CESL partially clarifies the characterisation of the contract in terms of relationships between professionals or consumers, imposing obligations to achieve a result in the second case. For example, installation contracts are considered obligations to achieve a specific result (section 148.4 in relation to Article 101 CESL and Annex I).

3. Relevance of the distinction and position of OHADAC Principles

The characterisation of an obligation as an obligation of best efforts or obligation to achieve a specific result is essential to determine the extent of the duties of the obligor and, therefore, to identify cases of breach of contract. This characterisation may be of the contract as a whole or of its principal duty (the result of the delivery of goods and transfer of ownership in sales) or on some of its obligations (e.g., the obligation to deliver “within a reasonable time,” which transforms the time of the performance into an obligation of best efforts). It is important to link the obligations of best efforts and obligations to achieve a specific result to the criteria of responsibility for damages. Under the UNIDROIT Principles non-performance implies a right to compensation for the obligee, unless the breach is excused under the Principles themselves (section 7.4.1). The causes of exemption of liability are provided for in the contract (section 7.1.6) and force majeure (Article 7.1.7), that is an institution midway between the common law frustration and force majeure of civil law systems. The advantage of the construction is that it introduces a system of objectification of responsibility (outside the criteria of the fault of the obligor) that primarily corresponds to the common law model. Outside the contractual framework, only force majeure can excuse the breach of contract, as an element that is external to the contract itself and beyond the control of the parties. A similar model follows in Article 9:101 of the PECL proposed by the Association Henri Capitant.

The characterisation of the obligation also directly affects the object and the burden of proof of the breach of contract. Strictly speaking, any breach (whether of result or of best efforts) needs to be proved by the obligee, especially when under current contract trends everything is related to the lack of conformity. It happens, however, that the character of each obligation determines the difficulty to prove: in the obligations of result, if suffices that the obligee proves that the result was not obtained in the agreed terms; in the obligations of best efforts, the obligee must prove that the obligor acted without the required care. Such a difference related to the test of infringement is expressly envisaged in Article 6:103 of the PECL revised by the Association Henri Capitant.

It is clear that the obligee's interests are more protected in obligations of result and that the proof of non-performance is simpler, using objective parameters defined in the contract on the contents of the agreed performance. Therein lies the difference between civil law and common law systems: civil law systems observe the conduct of the obligor, while common law focuses on the satisfaction of the obligee. It is true, however, that the traditional understanding of civil law based on fault, in the terms already mentioned, requires additional proof of the lack of care of the obligor's as well as for the duty to achieve a specific result. However, it is precisely in this context that the trend to objectify contractual liability on the basis of the rebuttable presumption of fault and, therefore, reversing the burden of proof becomes significant: the obligor must prove its diligent conduct. These are called “attenuated obligations to achieve a result”: they are obligations to achieve a result because fault is presumed; but they are qualified because the obligor may be released if it proves its diligence. In this way, authentic irrebuttable presumptions for obligations of result are finally established; these in fact lead to the elimination of fault as a criterion for attribution of responsibility and prevent the obligor from being exempted from its commitments even demonstrating diligent conduct.

In obligations of best efforts, the failure to achieve the result is irrelevant and the object of proof should be focused on the lack of diligence of the obligor in the performance of the contract. In this case, the position of the obligee is weaker and it must make a greater effort to prove the standard required and then to demonstrate its compliance by the obligor, unless a reversal in the burden of proof is established in this area.

In this context, OHADAC civil codes are based, in general, on two rules: firstly, the requirement of fault related to the breach of the contract (characteristic in obligations of best efforts) and, secondly, the presumption of this fault (generating reinforced duty of best efforts or attenuated duty to achieve a result).

The basic rule is that the attribution of liability to the obligor is only possible when there has been fault on its part (considered under criteria or more or less strict diligence). A relationship between liability for non-performance and causes that exempt from liability occurs: force majeure and also fortuitous event. Therefore, generally there will not be a strict liability for breach of contract. Thus, in most cases there will be a duty of best efforts that limit the obligor's liability to cases of lack of diligence in performing the obligation (Article 1.604 of the Colombian Civil Code; Articles 702 and 703 of the Costa Rican Civil Code; Articles 293 and 298 of the Cuban Civil Code; Article 1.147 of the Dominican and French Civil Code; Article 1.436 of the Guatemalan Civil Code; Article 1.360 of the Honduran Civil Code; Articles 1.852 and 1.864 of the Nicaraguan Civil Code; Article 990 of the Panamanian Civil Code; Articles 1.054 and 1.056 of the Puerto Rican Civil Code; Article 1.003 of the Saint Lucian Civil Code; Articles 6:74 and 6:75 of the Dutch and Suriname Civil Code. Only of the Venezuelan Civil Code opts for what seems a strict liability system (Article 1.264 Civil Code), close to the common law regimes, where the obligor can only be exonerated if it proves that the failure comes from a cause that is not attributable to it, even if it has not acted in bad faith (Article 1271 Civil Code).

However, duties of best efforts appear in many cases reinforced by the rule of presumption of fault, which, in practice, requires that the obligor itself proves its diligence in performing the obligation. This system shows a tendency to objectify liability, which is close to duties to achieve a result, although mitigated, insofar as the proof of the absence of fault and of the presence of unforeseen circumstances releases the obligor from liability (Article 1.733 of the Colombian Civil Code; Article 1.171 of the Colombian Commercial Code; Article 298.2 of the Cuban Civil Code; Article 1.423 of the Guatemalan Civil Code; Article 1.461 of the Honduran Civil Code; Articles 2.647 et seq. of the Mexican Civil Code; Article 1.271 of the Venezuelan Civil Code).

The wording of Article 4.3.1 OHADAC Principles includes the distinction between duties of best efforts and duties to achieve a result in the line established in the UNIDROIT Principles. The inclusion of contracts in each category depends essentially on the scope of the obligations stipulated by the parties; alternatively, the criteria laid down in Article 4.3.2 of these same Principles may be considered. It is not possible or convenient to make a catalogue of contractual agreements and a characterisation of its obligations. For the purposes of the OHADAC Principles it is important to emphasize, considering its scope in the field of business excluding consumer contracts, that there are no special reasons to opt for duties to achieve a result, which are more protective of the obligee's interests. A neutral option between both obligational models is legitimate in the context of relations between traders and makes it possible, without constraints, to accommodate both civil law and common law Caribbean systems.

Article 4.3.1 makes no reference to the proof of non-performance. However, this aspect is governed by Article 6:103 PECL revised by the Association “Henri Capitant”, which provides, in case of duties to achieve a result, that the mere fact of not achieving the intended result is enough to demonstrate non-performance, while in cases of duties of best efforts, the non-performance must be proved. This distinction in the rules of evidence is consistent with the distinction between the two types of duties, but their reflection in the article of the OHADAC Principles could interfere with civil codes which reverse the burden of proof by establishing a presumption of fault and, thus, of the breach of contract. This means, in essence, that if the obligor does not prove their diligence, their liability is assumed by default. In other words, in these cases what should be proved is performance (and not non-performance). The inclusion in the OHADAC Principles of a similar rule to that in PECL would actually mean, although the provision says nothing on the burden of proof, a requirement on the obligee to prove such a breach (i.e. the lack of diligence of the obligor). Therefore, silence on this point in Article 4.3.1 prevents distortions in domestic laws that reverse the burden of proof of the contractual performance.