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Default in performance and its consequences
Default in performance is understood to be obstacles to the performance of
the contract such as impossibility (not initially), delay, the occurrence of
defects or a positive breach of contract.
Impossibility: If fulfilment by the provider becomes finally
impossible, he can be held liable if this impossibility is attributable to
the provider.
Delay: The most important case of delay in practical terms is that of
non‐performance despite the due date. If the delay is by default, it
will usually also lead to an entitlement to compensation. In any case
the user can insist on performance of the contract or can withdraw
from the contract after giving a reasonable period of notice.
Defectiveness: In practical terms, this mainly relates to the speed,
the permanent availability and the quality of the services rendered
by the provider. The provider is responsible for defects which the
expected service exhibits at the point in time of performance,
provided a claim is filed relating to these defects within the warranty
period. Under warranty law, it is usually unimportant whether the
defect is attributable. However, fault does play a central role in the
field of compensation for damages.
Positive breach of contract: If a party to the contract violates the
protection duties assigned to it and damages the other party's goods,
this is a violation of the contract known as a positive breach of
contract. This can lead to consequential or collateral damage. Fault
needs to be involved and the infringer is liable for both its agents and
its own acts. What is important for assigning blame is that the law
envisages a reversal of the burden of proof.
Right of intervention in case of sub‐contractors
As already stated, various legal issues can occur in the fulfilment of a
contract. This might be even more problematic if the Cloud service provider
uses a subcontractor or multiple subcontractors.
Because there will typically be a contract between the Cloud service user
and the provider (lawyers refer to this as a contractual obligation), the
subcontractor acts as an agent of the provider. The provider is however not
always liable for acts by its agents just like it is for its own acts. It is therefore
important to have a direct (e.g. executive) recourse to the subcontractor.
