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Reproduced from 25 International Review of Law and Economics (September 2005) 487-500. Copyright 2005, with permission from Elsevier

Towards a Universal Doctrine of Breach of Contract:
The Impact of the CISG

Jürgen Basedow [*] [1]
Max-Planck-Institute for Foreign Private and Private International Law
University of Hamburg, Hamburg, Germany

  1. Contract law -- a favorite of recent legislation
  2. Reasons for convergent legislation
  3. Breach of contract as a comprehensive concept
  4. Specific performance
  5. Damages for lack of conformity
  6. Excuse and the fault principle
  7. Summary
  8. Further reading

1. Contract law -- a favorite of recent legislation

This conference takes place on the eve of the 25th anniversary of the adoption of the Vienna Convention on the International Sale of Goods.[2] It is a welcome opportunity to monitor the development of contract law throughout the last 25 years. What catches the eye in particular are two series of events: first, the promulgation of a great number of legislative enactments dealing with contract law, either exclusively or in the context of civil codes; second, the approval by expert groups of sets of non-binding principles of contract law at the international level.

It is probably fair to say that there has been more rule-making activity in the field of contracts at the national and international levels throughout the last 20 years than in the 50 years preceding the adoption of the Vienna Convention. New civil codes in countries such as Brazil,[3] the Netherlands,[4] Québec [5] and Russia [6] do not only give evidence [page 487] of a renaissance of the idea of codification, they also contain rules on contracts that differ considerably from the previous state of law. Moreover, the need for a change in this area is clearly witnessed by specific legislation on contracts that has been enacted in other countries, e.g. in the People's Republic of China [7] and Germany.[8] Legislative activities of the European Community equally show the particular interest for contract law, although limited to consumer protection. Among the various directives in this area there is one which for the first time deals with basic issues of general contract law, i.e. Directive 1999/44 on certain aspects of the sale of consumer goods and associated guaranties.[9]

While all these instruments have a binding nature the UNIDROIT-Principles for International Commercial Contracts [10] and the Principles of European Contract Law [11] represent a new approach to the harmonization of laws. Both instruments are the products of international expert groups that have started from a traditional comparison of national laws in order to draft rules and principles that might be accepted worldwide. In Europe there are various other groups of academics aspiring to a soft harmonization of a similar kind, i.e. by the elaboration of international restatements, e.g. in the field of torts,[12] of conflicts,[13] of family [14] or insurance law.[15] But again the work done in the field of contracts has made the greatest progress. International discussions about uniform law which used to focus on special sector conventions such as the Hague Rules on Bills of Lading [16] or the Warsaw Convention on air carrier liability [17] in previous years have increasingly been dominated by issues of sales law and general contract law in the recent past. [page 488]

2. Reasons for convergent legislation

The reasons for the legislative revival of contract law are manifold and differ from country to country. In a very general sense the globalisation of markets, the increasing interconnectedness of national economies and a growing number of transnational economic contacts put pressure upon national particularities. Since commercial law is not a value in itself but serves the economic and cultural values of society it is by necessity subject to alterations as the patterns of economic life are changing. To illustrate this obvious context we may refer to the absence of implied warranties in ancient law: as long as the main object of sales contracts was land and immovable property, i.e. high-valued objects, the parties could be expected to carry out extensive inspections and to negotiate about express warranties. Such behaviour is inefficient when goods of a lower price are purchased in rapidly changing market situations and an inspection is difficult for practical reasons. The rise of the market economy therefore produced the need for remedies that the buyer could avail himself of in the absence of express warranties given by the seller. The introduction of the so-called aedilitian remedies in Roman law [18] and the recognition of the implied warranty of merchantability in modern common law [19] reflect the increasing significance of trade in movables.

At present, a similar transformation of contract law can be expected as a result of globalised markets. The greater the number of economic actors who take part in international trade the less convincing will be the justification of national particularities of contract law. While complete unification is a complicated process a convergence brought about by spontaneous adjustment of the individual legal orders may be expected. It is in this context that the existence of an internationally excepted model plays an important role. The Vienna Convention, the UNIDROIT-Principles and the Principles of European Contract Law lend themselves for that purpose. Insofar as their rules overlap the three instruments should be seen rather as one comprehensive model since the two sets of rules in substance closely follow the Vienna Convention.

An additional ground for the increase of legislative activities in contract law is the end of the socialist regimes in Eastern Europe. As long as the economies of those countries were governed by central administrations the role of contract and contract law were different from market economies. They primarily served to implement central economic plans; not individual promise and the decentralised plans of economic actors were the ultimate reason for the enforcement of contracts, but the need to coordinate the individual plans with the central plan which took priority over all individual decisions.[20] In an international perspective the abolition of central planning has created a level playing field in respect of the regulatory framework of trade and contract. In the contract part of the Russian Civil Code the abrogation of any reference to central planning is considered as the most significant change in comparison with the previous civil law.[21] The shift from central to individual [page 489] planning may be viewed as the key element of the convergence that is to be expected as a result of globalisation.

A third reason for the new interest that legislators take in contract law is regional economic integration and, more in particular, the pursuit, by the European Community institutions, of a closer union. Whether a common contract law is needed for the functioning of the internal market is a matter of long debate.[22] While the opponents of the harmonization of contract law refer to the US where a common market has been established despite the existence of the different contract laws of 50 single states, others question the pertinence of the comparison in the light of the different languages and legal cultures in Europe. The Community institutions first tackled contract law by the harmonization of certain standards of consumer protection.[23] Recent communications of the Commission indicate that it wants to go a step further in the direction of a more coherent contract law in Europe.[24] The efforts of harmonization in this field have to bridge the gap between the civil law and the common law world, which has always been considered as particularly deep in the field of contracts. The Vienna Convention and the sales directive mentioned above indicate that it is possible to bridge that gap which would certainly trigger a further convergence of contract law even beyond the European Community.

The basic message of this paper is that the said convergence of contract law is under way, although it does not have attained its goal yet. Our proposition will be underlined by an inquiry into some specific issues relating to the breach of contract: the breach as a comprehensive and homogeneous concept, infra 3, the emerging compromise in respect of specific performance, infra 4, the compensation in case of delivery of non-conforming goods, infra 5, and the reduced significance of the fault principle, infra 6.

3. Breach of contract as a comprehensive concept

The seller's breach of contract is defined, by article 45 CISG, as the failure "to perform any of his obligations under the contract or this Convention." As a matter of principle the Convention is based upon a uniform concept of breach of contract which includes all kinds of non-compliance such as non-delivery, late delivery, delivery of goods of a wrong description, lack of conformity of the goods, etc.[25] The remedies laid down in the Convention are basically the same for all the different types of breach.[26] For a lawyer trained in a common law jurisdiction this does not come as a surprise, but it breaks a long tradition in many civil law countries. Before 2002, the general law of obligations laid down in the German civil [page 490] code did not regulate breach of contract except for two types: impossibility of, and late performance.[27] Other types such as non-delivery, anticipatory breach or other forms of non-conformity had to be accommodated by those provisions and by general principles.[28] There were special rules relating to the non-conformity of the goods in the sales contract which provided for the so-called aedilitian remedies of termination and mitigation of price,[29] but they were uncoordinated with the general remedies of contract law. For example, the prescription period for the aedilitian remedies was six months after delivery of the goods [30] while the buyer could sue the seller throughout the general prescription period of 30 years in case of delivery of goods of a different description.[31] Consequently, there is a long line of opinions trying to draw a line between these two fact situations and discussing, e.g. whether the delivery of winter wheat instead of summer wheat or the delivery of beams of a certain thickness instead of the thinner beams purchased under the sales contract had to be considered as the delivery of an aliud, i.e. a non-delivery with a long prescription period, or as the delivery of defective goods giving rise to a very short period of prescription.[32]

The lack of coordination shown by these examples has been more or less conspicuous and more or less disturbing in the various continental jurisdictions.[33] It is due to their common historical foundation mentioned before. The aedilitian remedies were introduced by the aediles, i.e. the Roman market police, and unlike the general contractual remedies of the actio empti not of praetoric, i.e. judicial origin.[34] Their primary purpose was that of the market police: encouraging confidence in orderly trading as the basis of common prosperity and avoidance of turmoils instigated by disappointed buyers. Consequently, the remedies granted by the aediles had to be invoked within short periods in order to respect the judicial powers of the praetor. In the 19th century's codification of private law the old rules, despite their lack of consistency, could survive thanks to a strange coalition: while the historic school in German legal scholarship followed Roman law as a model for the codification of private law, trade and industry supported short prescription periods which tend to shift the economic consequences of defects onto consumers for obvious economic reasons.

The resulting inconsistency of the various remedies of sales law has apparently never been a problem for the common law countries. This is mainly due to the fact that the protection of the buyer needed in a market economy and in particular in distant sales was effected by the recognition of implied warranties or conditions.[35] This intellectual operation allowed the [page 491] extension of the traditional rules dealing with express conditions and warranties to the new category of implied conditions and warranties. Thus, the comprehensive and homogeneous concept of breach laid down in article 45 CISG reflects a long tradition of the common law while it introduces the new category of non-conformity into civil law jurisdictions.

The new approach has met worldwide acceptance. Its most concise expression is perhaps article 7.1.1 of the UNIDROIT-Principles which defines non-performance as the "failure by a party to perform any of its obligations under the contract, including defective performance or late performance." Similar language can be found in article 8:101 of the European Principles. At the national level the new comprehensive approach is reflected by the Chinese contract act and by the respective rules of the Russian and the German civil code. Under article 107 of the Chinese Act the debtor shall be liable for breach of contract "where [he] fails to perform his contractual obligations or where his performance of the contractual obligations is not in conformity with the agreement."[36] In accordance with this definition the delivery of defective goods is considered as a special case of breach by Chinese writers,[37] and this view is underpinned by article 155, i.e. a provision of the sales chapter of the law which refers to the general rules governing breach of contract. In the Russian civil code likewise there is a systematic distinction between the "liability for violation of obligations" which is regulated by chapter 25 in part 1 of the code, and special rules on "purchase and sale" laid down in chapter 30 of part 2. In the latter context we find the customary list of remedies of the buyer in case of delivery of defective goods.[38] At the same time article 401 of the general part establishes the grounds of liability for the violation of an obligation in a broad approach, including not only non-performance but also performance in an improper manner. Finally, the overhaul of the German law of obligations has created a key provision [39] which attaches liability to the violation, by the debtor, of a duty arising from the obligation which equally includes all kinds of duties. A specific cross-reference in the provision dealing with the remedies of the buyer after delivery of defective products [40] makes it clear that the seller's liability is governed by the key provision even in that case.

These observations may be interpreted as a rapprochement of traditional civil law countries to the common law. However, what has finally convinced national legislators was rather the international model of CISG and the UNIDROIT-Principles.

4. Specific performance

The different attitude of civil law and common law countries in respect of specific performance of non-monetary obligations is a famous bone of contention among comparative scholars. It is well-known that common law jurisdictions allow for specific performance [page 492] only on a discretionary basis under the rules of equity and will usually reject pertinent applications since in most cases the recovery of losses by the creditor will be sufficient to protect his interests. [41] On the other hand, civil law jurisdictions would consider specific performance as a natural consequence of the debtor's promise.[42] This does not mean that applications for specific performance are very frequent in civil law countries since plaintiffs, especially in business to business relations, will usually prefer the recovery of damages arising from cover contracts as a remedy that is more efficient, less complicated and that provides quick and equivalent relief. Yet, specific performance is an issue of ongoing theoretical discussions. In the sale of goods it is even more complicated since it also pertains to the remedies of repair and replacement which are frequently offered by sellers on a voluntary basis in business to consumer relations. While the common law is obviously not opposed to such arrangements it would not like the judge to impose such remedies on an unwilling seller.

At the Vienna conference the international community has not really succeeded to bridge the gap. Article 46 basically acknowledges the buyer's right to replacement provided that the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made within a reasonable time after discovery of the defects, see para. 2. The buyer may also request repair of the goods unless this is unreasonable having regard to all the circumstances, para. 3. However, under article 28 a court is not bound to enter a judgement for specific performance unless it would do so in a similar case under its own law. Although article 28 is drafted in very general terms it amounts to a concession to common law jurisdictions.[43] Both the UNIDROIT-Principles [44] and the European Principles [45] have taken over in substance, although in greater detail, the rules on replacement and repair. But both sets of principles point out that the court is bound to grant the remedy unless the exception set forth in the respective rules apply; thus, specific performance is not considered as a discretionary remedy under the principles.[46]

In civil law countries, modern contract legislation has adhered to the principle of specific performance. This is due to a long legal tradition, but in the case of Russia [47] and China [48] probably also to the particular socialist experience. A national economy subject to central planning by necessity considers specific performance as the primary remedy since it is the only remedy which helps to implement central plans.[49] Although central planning has ceased there may still be a widespread feeling that contractual promises have to be honoured in any case. [page 493]

The breakthrough for specific performance in common law countries could be EC Directive 1999/44. Limited to the sale of consumer goods, article 3 (3) leaves no doubt that the consumer, "in the first place", may require the seller to repair the goods or to replace them, "unless this is impossible or disproportionate." Since this remedy is granted "in the first place", it would not have been sufficient to implement the directive by granting the consumer the right to have the goods repaired by somebody else and then recover the cost of repair from the seller.[50] The Member States must impose an unequivocal obligation of repair and replacement upon the seller. Yet, this would not appear to be incompatible with traditional common law. For even in a discretionary system such as the traditional one of common law jurisdictions one could argue that the consumer, after purchasing a sophisticated object of a particular brand, will often be unable to find a person other than the seller for repair. He may have similar difficulties with regard to replacement of such a brand product if he has purchased from an exclusive dealer who refuses to trade with him before the dispute has come to an end. For these reasons the directive can hardly be said to infringe upon a traditional common law principle. Both the United Kingdom [51] and the Republic of Ireland [52] have finally implemented the right to repair and replacement without restrictions. A statement to the effect that specific performance is not a remedy granted under English law therefore cannot be maintained anymore. It might even turn out as inconsistent to keep to the traditional discretionary regime with regard to business to business transactions after specific performance has been recognized as the general rule in consumer contracts. The experience that will be gathered in Ireland and the United Kingdom may help other common law jurisdictions when it comes to the overhaul of their contract laws. Although the universal convergence in this field has not proceeded very far, further progress may be expected.

5. Damages for lack of conformity

The double-tracked structure of the Roman law on breach initially implied the existence of separate rules on liability for the compensation of the buyer's losses resulting from different types of breach. In case of non-delivery or delivery of goods of a different description the buyer would be entitled to damages covering both the harm sustained and lost profit; the liability would be based upon the seller's fault, i.e. negligence or intent.[53] These rules would basically also apply in case of the delivery of goods lacking a quality which the seller had promised by an express warranty, and they were extended to the fraudulent non-disclosure of defects.[54] In case of the breach of an implied warranty, however, Roman law had not provided for any compensation of the buyer's loss. Across the various national codifications this issue remained central to the debate in the law of sales. A solution was emerging already [page 494] before CISG in the Italian Civil Code of 1942 which laid down, in article 1494, a general obligation of the seller to compensate the buyer in case of negligent breach of any of its obligations and in case of delivery of defective goods.

But in Germany the situation remained utterly inconsistent and unsatisfactory until the most recent modernisation of the law of obligations. In German case law a distinction was made between the buyer's losses flowing from the imbalance between the price paid and the value of the (defective) goods delivered and losses resulting from the infringement of other interests of the buyer. The first case could, e.g. relate to the buyer's impossibility to resell the defective goods and to the loss of gains caused thereby. No relief was available for such losses since the former 463 BGB had explicitly limited the seller's duty to compensate the buyer to cases of express warranty and fraudulent non-disclosure of defects. In the second case the courts were more willing to protect the buyer. They took the view that the code's limitation of damages only related to the buyer's interest in the contractual balance of the sales contract, but not to the infringement of other interests of the buyer. Thus, if a seller delivered poisonous fodder the buyer could claim compensation for the animals that had perished after consumption.[55] The cause of action in these cases was non-statutory (positive Vertragsverletzung) and depended on the seller's negligence which followed from the non-conformity of the goods by way of a rebuttable presumption. The case law had many ramifications and, by the exploration of an additional path of liability sounding in tort [56] got extremely complicated.

Articles 45 and 74 seq. CISG have paved the way for a simplification of the law. Under these provisions the buyer may claim compensation not only in lieu of but also in addition to other remedies invoked. On the basis of the comprehensive concept of breach discussed above the claim for compensation is granted in respect of all types of breach, and the calculation of damages, being essentially dependent on what was foreseeable at the time of the conclusion of the contract, is equally independent from the way the contract was breached. These rules have essentially been adapted in article 7.4.1 seq. of the UNIDROIT-Principles and in articles 9:501 seq. and 8:102, 9:103 of the Principles of European Contract Law.

Closely following the UNIDROIT-Principles the Chinese contract act equally provides for a comprehensive duty of the debtor to compensate the creditor for his loss resulting from the non-performance or a non-conforming performance of the debtor's obligations. It is explicitly stated in article 112 that the debtor has this obligation "after performing its obligations or taking remedial measures"; thus, a buyer who has remedies such as the right to repair or replacement or the right of return of the goods under articles 155 and 111, may claim damages in addition.[57] Under the new Russian Civil Code the situation is similar. While article 475 dealing with the consequences of the delivery of defective goods by the seller does not relate to compensation the general rules on liability for violation of obligations in chapter 25 (article 393 seq.) have a comprehensive scope of application.[58] Articles 393 [page 495] and 401 which both are giving rise to the debtor's liability are in fact applicable to damages "caused by the non-performance or improper performance of the obligation" which includes the delivery of defective goods. The highly complicated state of the German law described above has been cleared by the recent modernisation of the law of obligations. In dealing with the rights of the buyer after delivery of defective goods, 437 BGB now makes an explicit reference to the key provision stating the debtor's duty to compensate the creditor in case of breach of an obligation and leaves no doubt that the right to compensation exists in addition to other remedies available to the buyer.[59] This decision was an autonomous one of the German legislator; the EC Directive on the sale of consumer goods had not touched upon the issue of damages.[60]

What has been outlined above again gives evidence of a realignment of the civil law tradition with the common law. But again, the driving force of that harmonization is the model provided by CISG, the UNIDROIT-Principles and the European Principles, i.e. the work conducted in international organisations and fora.

6. Excuse and the fault principle

Another traditional difference between common law and civil law jurisdictions in the field of contract law is the relevance of fault. The late Professor Max Rheinstein has explained this by the different structure of the contractual obligation in both legal traditions.[61] According to his writings the contract in the civil law world primarily is a mutual promise of a certain behaviour whereas the common law would consider the contract rather as a guarantee made by each party of the result achieved by the performance of its undertaking. What the party owes under common law is a certain state of affairs, while the obligation is directed towards a certain behaviour in civil law jurisdictions. Consequently, the breach of contract under common law consists in the divergence between the result promised under the contract and the real state of affairs, it is a matter of objective assessment. In itself, this divergence is not sufficient to qualify as a breach in the perspective of civil law jurisdictions; since the obligation is focused on the debtor's behaviour a breach can only be assessed if the debtor could reasonably have been expected to behave in a different way. Therefore, the fault principle is often considered to be an indispensable part of the law of obligations in civil law countries.

It is well-known among comparative scholars that under both legal traditions lawyers dispose of tools which are suited to diminish the practical significance of that difference. A common law court will ask for example for the precise extent of the debtor's obligation and may, by excluding certain risks, modify the final result that the debtor promised to achieve.[62] On the basis of the fault principle, a civil law court may argue, that the debtor, in the circumstances of the case, has taken upon himself certain risks whose materialisation [page 496] would otherwise have discharged him of his obligation.[63] The basic difference therefore is less significant than it might appear at first sight.

Article 79 CISG takes account of the possibilities of a rapprochement by excluding the debtor's liability "if he proves that the failure [to perform] was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences." The provision focuses neither on the debtor's behaviour nor upon the result that was to be reached by the performance of the contract, but upon the specific impediment that has prevented the implementation of the exchange program as laid down in the contract. This approach appears to be much more in line with the way judges or arbitrators are dealing with possible excuses. It has been adapted by article 7.1.7 of the UNIDROIT-Principles and by article 8:108 of the Principles of European contract law.

The new formula has not had the same impact on national legislation as other CISG rules. The EC Directive on the sale of consumer goods does not deal with the discharge of the seller's obligations. Article 401 of the Russian Civil Code sticks to the traditional concept of "fault (intent or negligence)" which is a precondition for the debtor's liability. It is however explicitly laid down that the contract may provide otherwise. Under article 117 of the Chinese contract act liability shall be exempted in case of "force majeure"; while this traditional term is used in the UNIDROIT-Principles in connection with the formula employed by article 79 CISG, the Chinese act defines this term in the traditional way of French law [64] as relating to an objective circumstance "that is unforeseeable, unavoidable and insurmountable." Given the divergent interpretations of the concept of force majeure in early uniform law conventions [65] the revival of this traditional formula is surprising. Apparently its simplicity was more attractive than the model of article 79 CISG. Nor has German law followed the Vienna Convention in this respect. Under 280 BGB the debtor's breach of an obligation is excused if he is not responsible for the breach. Responsibility is defined by the traditional concepts of intent and negligence, 276 (1) BGB. As compared with the previous state of the law a rather slight departure can be seen in the explicit reference to the priority of a different yardstick of liability flowing from the content of the obligation, in particular the acceptance, by the debtor, of a guarantee.[66]

Apparently, the model of the CISG has had less attraction in this area than in others. A possible explanation may be that the fault principle is a very traditional category of legal thinking in civil law countries both in criminal and in private law, and that it is sufficiently flexible to accommodate any considerations relating to the particular circumstances of a case. It would indeed appear rather unlikely that the impediment test of article 79 CISG [page 497] leads to results that differ from those attained under the fault principle. If that is correct, the adherence to the fault principle may rather be viewed as a profession of loyalty to legal tradition than as a rejection of article 79 CISG.

7. Summary

Twenty-five years after the adoption of the Vienna Convention on the International Sale of Goods a very substantial impact of that instrument can be observed at the national and international levels. Globalisation, the end of the socialist regimes and of the central planning of national economies, and the powerful movement for European integration have brought about a macro-climate favourable to uniform law and to an overhaul of national private and commercial law. The process of unification of sales law that started after the First World War and culminated after the adoption of the Hague sales laws of 1964 in the Vienna Convention of 1980 could be broadened into general contract law by the adoption of soft law based upon CISG, i.e. the UNIDROIT-Principles of International Commercial Contracts and the Principles of European Contract Law. Taken together these instruments have influenced academic discussions in Europe and even beyond to a considerable extent.

When the new rush towards codification started in the 1990s the new standards therefore could not go unnoticed. The preceding survey of key issues such as the concept of breach, specific performance, and compensation for delivery of non-conforming goods gives evidence of a substantial harmonising effect of CISG in the European Community and the Russian Civil Code as well as the Chinese Contract Act and the German modernisation of the law of obligations. Generally speaking and except for the remedy of specific performance this development has brought about a rapprochement of civil law countries to the traditional rules and principles of common law which, however, would not have been possible without the mediation brought about by comparative work and discussions in international fora and organisations.

A closer look would certainly reveal that many differences subsist in detail, and in the context of the fault principle we had to note that legislators do not want to give up the traditional notion of fault in contract law. Despite that resistance the overall assessment is clear: the work of three generations of scholars on the harmonization of sales law and contract law has been successful. Its effects can be felt outside the arena of uniform law making. This assessment should be an incentive for present and future endeavours to carry on the harmonization process into the living law. What remains to be done is to foster the continuous awareness of contract lawyers across the globe of the common roots that their national contract laws have in the CISG. An important step in that direction is done by the continuous consideration of the application of CISG in other contracting states and the scholarly reflection of its comparative application in conferences such as this one.[67] [page 498]

Acknowledgments

The author is indebted to Dr. Benjamin Pissler and Eugenia Kurzynsky-Singer, both of the Max-Planck-Institute for Foreign Private and Private International Law, Hamburg, for providing information on the Chinese and Russian laws, respectively, and to Christian Heinze of the same Institute, for the review of text and footnotes.

Further reading

Basedow, J. (1987). Der Transportvertrag. Tübingen: Mohr Siebeck, p. 398.

Basedow, J. (1988). Die Reform des deutschen Kaufrechts. Köln: Bundesanzeiger, p. 25.

Basedow, J. (1996). "A Common Contract Law for the Common Market", 33 Common Market Law Review (Com. Mkt. L. Rev.). p. 1169.

Basedow, J. (2000). Depositivierungstendenzen in der Rechtsprechung zum Internationalen Einheitsrecht. 50 Jahre Bundesgerichtshof -- Festgabe aus der Wissenschaft: Vol. II, (Vol. II, (p. 777). München: C.H. Beck.

Beale, H. (2002). "Europeanisation of Private Law and English Law", speech delivered at a conference at Tossa de Mar on "El dret civil català en el context europen", September 27, 2002. available at <http://civil.udg.es/tossa/2002/textos/pon/2/hb.htm>.

Beatson, J. (1998). Anson's law of contract. Oxford: Oxford University Press, pp. 504, 596.

Berlingieri, F. (2004). "Uniform Interpretation of International Conventions", Lloyd's Maritime and Commercial Law Quarterly (LMCLQ), p. 153.

Bonell, M. J. (1997). An international restatement of contract law. New York: Transnational Publ, p. 68.

Bridge, M. G. (1997). The sale of goods. Oxford: Clarendon Press, p. 293.

Dauner-Lieb. B. (2002). In B. Dauner-Lieb, et al. (Eds.), Schuldrecht (p. 268). Bonn: Deutscher Anwaltverlag.

Daxne, L., & Stammann, I. (2001). Kaufrecht. In Shao & Drewes (Eds.), Chinesisches Zivil -- und Wirtschaftsrecht (p. 62). Hamburg: Institut für Asienkunde.

Eörsi, G., Joffe, O. S., & Such, H. (1981). Contracts in the socialist economy. International encyclopedia of comparative law: Vol. VII, (Vol. VII, (p. 68). Tübingen: Mohr Siebeck, ch. 5.

Farnsworth, E. A. (1985). Rights and Obligations of the Seller, in: Schweizerisches Institut für Rechtsvergleichung. Wiener Übereinkommen über den internationalen Warenkauf. Lausanner Kolloquium. Lausanne: Schulthess, p. 83.

Ferrari, F. (1999). International sale of goods. Basle and Brussels: Helbing & Lichtenhahn, p. 15.

Guoguang, L. (1999). Hetong fa jieshi yu shiyong. Beijing: Xinhua chuban she, pp. 455, 717.

Grundmann. S., & Bianca, C. M. (2002). EU-Kaufrechts-Richtlinie. Köln: Dr. Otto Schmidt, p. 41.

Heck, P. (1974). Grundri<<beta>> des Schuldrechts. Reprint of the edition Tübingen 1929. Aalen: Scientia, p. 118.

Honnold, J. (1982). Uniform law for international sales under the 1980 United Nations convention. Deventer: Kluwer Law and Taxation Publ, p. 299.

Kaser, M. (1971). Das römische Privatrecht: Vol. I, (Vol. I, München: C.H. Beck, pp. 511, 558.

Koziol, H. (2004). "Die 'Principles of European Tort Law' der, European Group on Tort Law"', Zeitschrift für Europäisches Privatrecht (ZEuP), p. 234.

Kullmann. H.-J. (1985). Die Rechtsprechung des BGH zur deliktischen Haftung des Herstellers für Schäden an der von ihm hergestellten Sache. Betriebsberater (BB), 409.

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Loeber, D. A. (1969). Der hoheitlich gestaltete Vertrag. Tübingen: Mohr Siebeck, p. 290.

Magnus, U. (2005). Wiener UN-Kaufrecht (CISG). In Julius von Staudingers Kommentar zum Bürgerlichen Gesetzbuch. Berlin: de Gruyter, p. 468.

Magnus. U. (2003). The CISG's Impact on European Legislation. In Ferrari (Ed.). The 1980 uniform sales law -- Old issues revisited in the light of recent experiences (p. 129). Milano: Sellier European Law Publ, 134. [page 499]

Medicus, D. (2000). Schuldrecht I, Allgemeiner Teil. München: C.H. Beck, p. 145.

Pashchenko, T. (2003). Das Recht der Handelsgeschäfte in der Russischen Föderation. Frankfurt: Peter Lang, p. 171.

Pringsheim, F. (1950). The Greek law of sale. Weimar: Böhlau, p. 473.

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FOOTNOTES

* Tel.: 9 40 419 00 316; fax: 9 40 419 00 309. E-mail address: <basedow@mpipriv-hh.mpg.de>.

1. First and Second State Examination in Law, Hamburg 1974 and 1979; LL. M., Harvard University, 1981; Doctor jur., University of Hamburg 1979; Doctor jur. habil. University of Hamburg, 1986.

2. United Nations Convention on Contracts for the International Sale of Goods, April 11, 1980, U.N. Doc A/CONF. 97/19, available at <http://www.uncitral.org> [hereinafter CISG].

3. Código Civil do Brasil, Lei No. 10.406. January 10, 2002, available at <http://www.presidenciadarepublica.gov.br/ccivil_03/LEIS/2002/L10406.htm>. German translation available at <http://www.law-wolf.ch/gesetze-de.htm>.

4. Staatsblad van het Koninkrijk der Nederlanden 1980 No. 432 and 1990 No. 90. For an English-language translation see NEW NETHERLANDS CIVIL CODE (P.P.C. Haanappel & Ejan Mackaay, 1990).

5. Civil Code of Québec. L.Q. 1991, ch. 64 = S.Q. 1991, ch. 64, available at <http://www.canlii.org/qc/laws/sta/ccq/20040802/part1.html>.

6. Sobranie zakonodatel'stva Rossiiskoi Federatsii (1994) No. 32, items 3301 and 3302 (part 1); Sobranie zakonodatel'stva Rossiiskoi Federatsii (1996) No. 5, items 410 and 411 (part 2). For an English-language translation see THE CIVIL CODE OF THE RUSSIAN FEDERATION (Peter B. Maggs & A.N. Zhiltsov, Eds., 1997).

7. Zhonghua Renmin Gongheguo Guowuyuan Gongbao (Gazette of the State Council of the People's Republic of China), April 19, 1999, Issue No. 11, p. 388. English-language translation available at <http://www.cclaw.net/download/contractlawPRC.asp>.

8. Gesetz zur Modernisierung des Schuldrechts vom 26.11.2001, Bundesgesetzblatt I 3138. English-language translation of the new provisions available at <http://www.iuscomp.org/gla>.

9. Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, 1999 O.J. (L 171) 12-16.

10. The current version is published in UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS (Unidroit, 2004), available at <http://www.unidroit.org/english/principles/contracts/main.htm>.

11. PRINCIPLES OF EUROPEAN CONTRACT LAW, PARTS I AND II (Ole Lando & Hugh Beale, Eds., 2000); PRINCIPLES OF EUROPEAN CONTRACT LAW, PART III (Ole Lando et al., Eds., 2003).

12. European Group on Tort Law, Principles of European Tort Law, Zeitschrift für Europäisches Privatrecht (ZEuP) 2004, 427 et seq. (with an introductory article by Helmut Koziol at p. 234 et seq.)

13. See the website of the European Group for Private International Law, available at <http://www.drt.ucl.ac.be/gedip>.

14. See Gründung der Kommission für Europäisches Familienrecht, ZEuP 2002, 194, available at <http://www.law.uu.nl/priv/cefl>.

15. See the website of the Project Group "Restatement of European Insurance Contract Law" available at <http://www.restatement.info>.

16. International Convention for the Unification of Certain Rules Relating to Bills of Lading for the Carriage of Goods by Sea, August 25, 1924, 120 LNTS 155=TS 931=51 Stat. 233.

17. Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 137 LNTS 11=TS 876=49 Stat. 3000.

18. Relating to the sale of slaves and beasts, cf. Kaser (1971, 558 et seq., 131 II 4); Pringsheim (1950, p. 473 et seq. stressing the inherent risk of the slave trade as an international trade); Zimmermann (1996, p. 311 et seq.).

19. See Stoljar (1952, p. 432 et seq.); see also Zimmermann supra note 17, at p. 306.

20. Eörsi et al. (1981, p. 68); see also infra note 48.

21. Sadikov (1996, p. 268); Sadikov (1999, p. 904).

22. Among the great number of authors participating in that debate, see, in favor, Basedow (1996, p. 1169); skeptical, Vogel (2001, p. 591); and fervently opposed, Lequette (2002, p. 2202); see also TOWARDS A EUROPEAN CIVIL, CODE (Arthur Hartkamp et al., Eds., 3rd Ed., 2004).

23. See the collection of various Community acts relating to consumer protection in EUROPEAN PRIVATE LAW VOL. II (Jürgen Basedow, Ed., 2000).

24. See Communication from the Commission to the European Parliament and the Council: A More Coherent European Contract Law -- An Action Plan, COM (2003) 68 final of February 12, 2003 (with reference to previous documents).

25. See Will (1987, p. 331); Magnus (2005, p. 468); Farnsworth (1985, p. 83); Schlechtriem (1981, p. 65).

26. See Art. 45 CISG.

27. See, e.g. Medicus (2000, p. 145 et seq.); Schlechtriem (2000, p. 140, para. 251); for an early comment, see Heck (1929, p. 118, 40).

28. See Medicus, Schlechtriem and Heck supra note 26.

29. See the previous version of 459 and 462 BGB.

30. See the previous version of 477 BGB.

31. See 195 BGB, now abrogated.

32. See, e.g. Bundesgerichtshof November 30, 1967, Neue Juristische Wochenschrift (NJW) 1968, p. 640 (winter wheat instead of summer wheat); see the survey of cases in Westermann (1995, p. 214 et seq., 459 paras. 21 et seq.).

33. Basedow (1988, p. 25 et seq.).

34. See the references cited supra note 17.

35. Stoljar, supra note 18, p. 432 et seq.; Bridge (1997, p. 293 et seq. on the development of the implied condition of merchantability).

36. On the similarity of the Chinese rules on breach and those of the Unidroit Principles see Yuqing & Danhang (2000, p. 436).

37. Guoguang (1999, p. 717); Liming & Jianyuan (2000, p. 601); Daxne & Stammann (2001, p. 62).

38. Art. 475 of the Civil Code of Russia.

39. 280 BGB as amended by the Act cited supra note 7.

40. 437 BGB as amended by the Act cited supra note 7; see Dauner-Lieb (2002, p. 268 et seq., 280 paras. 20 et seq.).

41. Beatson (1998, p. 596, ch. 18 II (a)); Treitel (2003, p. 1019, ch. 21, section 3 (1)).

42. See 241 BGB as amended, placed at the outset of book II on the law of obligations: "By virtue of the obligation the creditor is entitled to claim performance from the debtor." See Zimmermann (2002, p. 10).

43. Honnold (1982, p. 299, para. 279).

44. See Art. 7.2.2 of the UNIDROIT Principles.

45. See Art. 9:102 PECL.

46. See comment 2 of the UNIDROIT Principles and comment D of the European Principles; see Bonell (1997, p. 68 et seq. and especially note 26).

47. See Art. 110 of the Contract Law.

48. See Art. 475 of the Civil Code of Russia, see also Art. 307.

49. See, e.g. SOWJETISCHES WIRTSCHAFTSRECHT (German translation), 176 et seq. (1975); Loeber (1969, p. 290 et seq.).

50. Contra Beale (2002, text following his note 11).

51. Section 5 of the Sale and Supply of Goods to Consumers Regulations 2002, Stat. Instr. 2002 no. 3045, inserted a new Part 5A into the Sale of Goods Act 1979; section 48B of that act now entitles the buyer to require the seller to repair or replace the goods.

52. See Art. 7 (3) of the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003, Stat. Instr. 2003 no. 11.

53. Zimmermann supra note 17, p. 785 et. seq.; Kaser supra note 17, p. 511 et seq., 118 III 4.

54. Zimmermann supra note 17, p. 310; Kaser supra note 17, p. 558, 131 II 3.

55. Reichsgericht July 9, 1907 RGZ 66. p. 289: for further examples see Westermann supra note 31, p. 308 et seq., 463 paras. 42 et seq.

56. Kullmann (1985, p. 409 et seq.).

57. Guoguang supra note 36, p. 455 et seq.

58. Sergeev & Tolstoj (1998, p. 19); Pashchenko (2003, p. 171).

59. Putzo (2006, p. 632. 437 para 4b).

60. Grundmann (2002. p. 41. Einleitung para. 38); Magnus (2003, p. 134).

61. Rheinstein (1932, p. 42 et seq.).

62. On the doctrine of frustration see Beatson supra note 40, p. 504 et seq.; Treitel supra note 40, p. 866 et seq.; Rheinstein supra note 60, p. 183 et seq.; Zweigert & Kötz (1996, p. 507 et seq.).

63. This has been clarified by the amendment to 276 BGB which establishes the debtor's responsibility for intentional or negligent breach "unless a stricter or milder liability is either ordered by law or can be inferred from the content of the obligation, in particular from the acceptance of a guarantee or the taking over of a procurement risk."

64. See Larroumet (1998, p. 779, paras. 722 et seq.); Starck (1998, p. 586 et seq., paras. 1688 et seq.).

65. See Art. 30 of the first European railway convention of October 14, 1890, Reichsgesetzblatt, p. 793 (1892); due to divergent interpretations by national courts, reference to force majeure was replaced by a new formula in 1952, see Basedow (1987, p. 398).

66. See supra note 62.

67. On the significance of an interpretation of uniform law taking account of foreign applications see Berlingieri (2004, p. 153 et seq.); Basedow (2000, p. 777 et seq.); Ferrari (1999, p. 15 et seq.).


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