The regulation of services under United States contract law : in search of model rules for the regulation of service contracts from the Polish legislator's perspective

Streszcz. ang. s. 101-102

The article presents a synthetic overview of the regulation of services under the law of contract in the United States and attempts to answer the question as to whether (and, if so, should) the rules of US contract law be utilized as part of the ongoing process of regulating specific parts of the Polish law of obligations. However, the analysis undertaken in this paper requires the author to make a few preliminary remarks. Firstly, there is no uniform law of contract in the United States. Private law in the US is governed in principle by state law, not federal law, which results in jurisdictional diversity between states. For this reason, the paper attempts to discuss only the major trends and solutions relating to service contracts, with the stipulation that the model examined in this article might be subject to significant exceptions in particular states or in other US jurisdictions. Secondly, contract for services, as opposed to contract for the sales of goods, is governed neither by the Uniform Commercial Code nor by any other separate regulation. Basically, under US contract law, a contract for services is covered by the common law of contracts. Therefore, the rules and principles applying to parties to service contracts, as described in this paper, are to be found by searching for them in uncodified sources of law. The first part of the paper examines the structure of the law of obligations with particular emphasis on the regulated types of contracts under US contract law. In this regard, the analysis is primarily based on the regulation of the Uniform Commercial Code (UCC). The second part of the paper addresses the scope of the application of Article 2 of UCC and deals with the question as to whether and to what extent "hybrid contracts" might be covered by Article 2. According to § 2-102 of Article 2 of UCC, the provisions of this Article apply to transactions in goods. Hybrid contracts, however, involve the obligation of the party both to sell the goods and to render the services. The dual nature of these transactions raises doubts as to which set of rules should apply to the rights and obligations of the parties (the choice being basically between the UCC rules and variety of common law rules). The author discusses the criteria, as developed by the courts, under which the courts determine the source of law for hybrid contracts in cases where a dispute between the parties arises. The third part of the paper is devoted to an analysis of various types of contracts under which the party is obliged to perform services. Within the analysis of the case law, the fundamental rules applicable to service contracts are outlined, in particular those that impose a standard on the performance of a contract and those rules that provide for the scope of the liability of the provider of services. The final part of the paper addresses a number of select issues referring to construction contracts. The forms and contract documents as formulated by the American Institute of Architects (AIA) are also mentioned within this context.