Kahju hüvitamise nõue täitmise asemel ostja õiguste näitel

A claim for damages is an important, if not the most important, contractual remedy. Unlike the legal systems of most continental European countries, international conventions and model laws, the LOA differentiates between two types of claims for damages. The creditor may either claim compensation for damage together with or in lieu of performance from the debtor (§ 115(1)). Although the LOA’s notable § 115 will have soon been in force for fifteen years, it has not yet been the subject of extensive and dogmatic analysis in Estonian legal literature. Only some case law and a limited amount of theoretical literature have addressed simple damages claims (a claim for damages together with performance). With regard to the filing of a claim for damages in lieu of performance, however, it may be argued (with slight exaggeration) that not only has a claim for damages in lieu of performance not been studied, it is, to a large extent, an undiscovered area of legal study. The purpose of this dissertation is therefore to analyse the functionality, purpose and nature of the regulation of a claim for damages in lieu of performance specified in § 115 of the LOA. It furthermore examines ways of pursuing these objectives, conditions for asserting a claim, the content and consequences of a claim, and its relation to other remedies. A separate chapter is devoted to the buyer`s right to claim compensation for the difference in price. The author examines the foundational legal acts upon which the LOA was drafted (BGB, CISG, PECL, and PICC) in order to provide a comparative and dogmatic analysis of the LOA’s chapter on contractual remedies. This includes presenting a critical look at present Supreme Court practices as well as theoretical views taken in legal literature. Finally, as the result of extensive legal analysis, the author recommends a variety of approaches to amend and improve the LOA de lege ferenda; if enacted, these changes would result in a more just and coherent regulation for claiming damages in Estonia.