STATUTORY VERSUS CONTRACTUAL RIGHT OF WITHDRAWAL IN A CONSTRUCTION CONTRACT
STATUTORY VERSUS CONTRACTUAL RIGHT OF WITHDRAWAL IN A CONSTRUCTION CONTRACT

Summary/Abstract: The right of withdrawal – as a unilateral right of a party to a contract – does not require the consent of the other party to have legal effect. As it is an exception to one of the most important principles of contract law, i.e. pacta sunt servanda, it must be interpreted strictly and therefore certain conditions from the law or the contract must be fulfilled. Also in the case of a construction contract, the investor and the contractor may exercise the statutory right of withdrawal as well as the contractual right of withdrawal, provided that the latter is provided for. The purpose of this article is to answer the question of how the contractual right of withdrawal relates to the statutory right of withdrawal. It is controversial whether, during the period in which a party has a contractual right of withdrawal, he may exercise his statutory right. A right of withdrawal may be introduced into a contract by way of freedom of contract and it cannot be assumed that this contractual provision excludes the right holder from invoking a right under the Act. It is also very important whether, since the specific provisions governing a construction contract provide for a right of withdrawal, the parties to that contract may withdraw from the contract under the general rules.

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