2020

DOI:https://www.doi.org/10.31178/AUBD.2020.09

Abstract:This study provides a detailed analysis of the defense of non-performance of a contract and the right of retention under the current Civil Code, with reference to court practice and aspects of comparative law.

Thus, in light of the latest developments regarding these two legal institutions, this study examines the defense of non-performance of a contract and the right of retention in parallel (i.e., legal framework, definition, legal basis, characteristics, scope of application, conditions for exercise, mechanism of operation, effects, and transitional law).

After analyzing the aforementioned aspects, the two legal institutions are compared to highlight the differences between them. In doing so, this article aims to draw a clear distinction between the two defenses and put an end to long-standing controversies in legal scholarship and judicial practice.

Keywords:Civil Code;favor contractus; principle of conformity in the performance of obligations; defense of non-performance, right of retention, defense, answer, counterclaim; synallagmatic contract; specific effects of synallagmatic contracts; remedies for breach of contract; imperfect warranty.