As mentioned under section 6.1, the Doctrine of Assumption, which is based on case law, equally applies with the section of voidance in the Danish Act on Contracts.
21.1. Under which circumstances does the doctrine of assumption apply?
The Doctrine of Assumption states that an agreement cannot be asserted according to its content if circumstances turn out differently than expected when the following conditions are met:
- The precondition was fundamental to the recipient of the promise
- The precondition of essentiality was recognisable by the promisor
- The precondition is of legal significance
Case law shows that the courts often have a preference of using the case law-based Doctrine of Assumptions rather than section 36 of the Danish Act on Contracts when it comes to circumstances occurring after the signing of a contract. This is especially the case when the circumstances which cause the need for changes entail a need to seek out the parties’ mutual understanding. The use of the Doctrine of Assumption rather than the general clause in section 36 is also quite common in cases regarding professional relationships. In “Agreements and Intermediaries”, it is expressed accordingly: ”The Doctrine of Assumption may be better suited to force the mind into the proper analytic direction than the considerations of reasonableness required under section 36”. Among others, the authors refer to U1989.1039H where a professional Employer pleaded on both section 36 and the doctrine of assumption. The matter was decided with reference to the Doctrine of assumption.
21.2. Case Law
A large number of decisions and rulings have been made based on the Doctrine of Preconditions – see review in “Agreements and Intermediaries”, pages 200f. They are all specific as they focus precisely on the parties’ expectations of the agreement and generally do not relate to cases that can be compared to the claims raised in Claim 500 as they do not relate to construction law. As an example of how an agreement can be corrected due to lack of preconditions, the judgment of U1995.277 H is mentioned as this ruling emphasises that the conclusion is founded upon the fact that it “…entails an unintentional significant reduction contrary to the parties’ preconditions” of the compensation which one party must pay to the other party.