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Reproduced with permission of 31 American Journal of Comparative Law (1983) 333-356

A Propos the 1980 Vienna Convention on Contracts
for the International Sale of Goods

Gyula Eörsi [*]

HOW SHOULD WE DEAL WITH SHYLOCK HOME AND ABROAD? OR THE DECAY OF RIGOR COMMERCIALIS

The rigor commercialis which supported Shylock could only have been neutralized by an even greater rigor commercialis. Such harsh practices are less necessary nowadays, at least in domestic laws: rigor commercialis has diminished. It is perhaps sufficient to refer to the general equity clauses, the increasing limitations on excluding or restricting liability in the sphere of standardized contracts, and the expanding prohibition of abuse of rights. However, the effect of domestic laws to protect the weak does not extend to international trade.[1] There are significant forces, however, intent on changing this situation, most recently under the banner of the New International Economic Order.

The question naturally arises: is it not justified that rigor commercialis should be significantly milder in domestic than in international trade? Indeed, a pre-war German court excluded the application of the famous German "Mädchen für Alles ," the "Treu und Glauben" principle, from international trade.[2] It argued that if a state unilaterally decided to extend its equitable domestic rules to international trade, its businessmen would be in a worse position than those whose states did not follow suit. This seems a valid argument. If, however, such equitable rules were included in an international convention (e.g., one on sales), this argument would lose its cogency and there would no longer be any reason whatsoever for a different treatment between domestic and international trade. In our opinion, there is an irreversible equitable trend, first in domestic trade and gradually in the law of the international community.

The U.N. Convention on Contracts for the International Sale of [page 333] Goods (CISG) [3] is a significant milestone in this trend. The most outstanding difference between the 1964 ULIS and the 1980 C.I.S.G. consists precisely in the considerable decrease of rigor commercialis:

a.) Under ULIS, a breach of contract by the seller or the buyer in several cases automatically terminates the contract (ipso facto avoidance): Arts. 26, 61 and 65.

CISG does not accept automatic termination for breach of contract.

b.) Moreover, CISG allows the seller, even after the date for delivery -- provided no avoidance has occurred -- to remedy any failure to perform his obligations or to request the buyer to make known whether he would still accept the performance. If the buyer does not reply in time, the seller may deliver; during this time the buyer's right of avoidance is suspended (Art. 48). CISG is definitely opposed to avoidance.

c.) ULIS requires in certain cases a prompt answer or action from the other party and in other cases an answer within a reasonable time. By contrast, CISG does not insist on any prompt answer or action.

d.) Under ULIS, if the parties do not agree on the price, the buyer has to pay the price generally charged by the seller (Art. 57). Under CISG, however, the price is that "charged at the time of the conclusion of the contract under comparable circumstances in the trade concerned" (Art. 55).[4]

e.) ULIS incorporates all implied usages into the contract, even such ''as the parties usually considered to be applicable to their contract" (Art. 9). The rigor of this provision lies in the fact that the parties are deemed to know all the relevant usages -- even domestic ones. Therefore, as a result of surprise, unwanted usages [page 334] can become part of the contract in conformity with the declining principle of vigilantibus iura, protecting the strong. CISG, on the other hand, strongly restricts the application of implied usages (Art. 9).

f.) Under ULIS, the goods must be examined promptly (Art. 38), under CISG "within as short a period as is practicable in the circumstances" (Art. 38).

g.) ULIS makes avoidance possible if the seller has "good grounds for fearing that the buyer will not pay the price" (Art. 66). Under CISG, suspension of performance is allowed only if it is apparent that the other party will not perform a substantial part of his obligations" (Art. 71). Thus ULIS protects only the seller, CISG both parties; ULIS allows avoidance, CISG suspension; ULIS -- in cases where the seller has good grounds to fear, CISG -- in cases where "trouble" with the performance "becomes apparent."

h.) The difference is similar with respect to anticipatory breach. ULIS allows avoidance without any further action (Art. 75); CISG requires the obligee to inform the other party (time permitting) of his intention to avoid in order to permit the other to provide "adequate assurance of his performance" (Art.72).

i.) Most significant in point of principle, CISG contains a clause of good faith (Art. 7).

Naturally, the decrease of rigor commercialis cannot only be accounted for by the 14 year period between ULIS and CISG, despite the fact that the equitable trend has been continually gaining pace. The real reason is that while the participating countries in ULIS were mostly European or other developed Western countries, the UNCITRAL Working Group which prepared CISG consisted of countries from various regions of the world, as is quite usual in the U.N.[5] This change in composition has led to the decrease of rigor commercialis, which basically served the interests of the strong and highly developed Western countries with centuries of trade traditions and high-level legal expertise. This change of balance does not significantly alter the fact that it is still the strong who rule in international trade. The Merchant of Venice, however, is now less sure of himself in front of the court. He will encounter different unexpected impediments, compared with the old times when he could only be overcome with his own weapons. Thus, there is a definite trend of compassion for those who, through no fault of their own, are weaker than others. [page 335]

THE EVIL OF DEFINITION OR THE PRINCIPLE OF "FUNDAMENTAL BREACH"

The concept of "fundamental breach" as a ground for avoidance is a basic concept of the conventions for the unification of international sales, CISG included.

No definition of fundamental breach, however, will be attempted here because there is no point in trying to give a definition of something so flexible and general. The concept of "Treu und Glauben " has never been defined in the statutory texts of Continental laws; neither for that matter, has the common law concept of the "reasonable man." Only practice has been able to define their meaning with reasonable certainty over the decades. In applying such concepts the judge forms an opinion, taking all circumstances into consideration whether (in this case) the breach of contract is so significant as to justify avoidance or not. If it is, he then comes to the conclusion that the statutory definition has been fulfilled; otherwise, that it has not. In other words, he does not form his conclusion through confronting the facts and the statutory text. He resorts to the statutory text merely to support his already existing instinctive conclusion. This phenomenon is not unique; nowadays the same occurs also in cases of negligence.

Very likely delegate Hakulinen (Finland) was right, after all, when, in 1964 at the Diplomatic Conference on the International Sale of Goods held in The Hague, he pleaded against the formulation of any definition of fundamental breach.[6] The question of deleting the definition came up at the Vienna U.N. Conference as well,[7] but encountered only resistance. The delegations were probably motivated by the psychology of the codifier: to avoid blame by future generations of judges for not having giving practical guidance on such important questions as the concept of fundamental breach. They consequently fell into the trap of "the better being enemy of the good" by trying to define this concept and sticking to it despite its imperfections. However, there was at least some good reason for doing so. After all, they would otherwise have later been blamed by practicing lawyers, since a definition is necessary to give legal expression for one's already formed conclusion. It is a different matter that, in order to come to a conclusion, one does not need a definition.

After all this, there is one piece of advice for those who stuck to the definition. The fewer concepts that are used, the better. The more approaches and more explanations there are, the more concepts are produced that in turn will need further explanation. This will be shown when dealing with the relevant CISG text.[8] Cynically, we are tempted to say that once we define fundamental breach, an [page 336] idem per idem definition is best because it does not call for further explanations. Cheers for tautology!

Seriously though, a general concept can only be defined exactly if the cases of application can be listed one by one. This is the case with "non-conformity" in the texts on international sales of goods.[9] It is, however, almost impossible with fundamental breach. During the preparation of the 1964 Hague Conference, the Hungarian Government proposal, in connection with the 1956 draft, tried to define it in such a way that fundamental breach was restricted to the default of the seller and non-conformity was a matter of interpretation of the contract.[10] None of this was very convincing. At the same time, the Dutch Government proposed the remarkable definition that "a breach of contract is fundamental either by virtue of an express provision of the law or because of its importance which is such as to justify the avoidance of the contract."[11] This is, of course, an idem per idem definition, since it only declares that a breach of contract is fundamental if it is so significant as to justify avoidance, instead of defining when the breach is so significant. It has nevertheless one great virtue: without roundabout phraseology it asks the same question as the judge before delving into the statutory text; this is its greatest virtue. The fault is not in the definition but in striving for a definition. Despite all this it would perhaps be interesting to survey the consequent definitions of fundamental breach.[12]

Definitions

We can talk about two periods. The first runs from the very beginning to the 1975 session of the UNCITRAL Working Group, when the test of fundamental breach was whether the other party, with knowledge of the breach, would have concluded the contract: thus, Art. 55(3) of the 1939 Text of Rome defining "essential condition," the 1956 and 1963 Draft Uniform Law, the text presented to the 1964 Hague Conference and ULIS.

This approach has been constantly attacked, especially on the ground that it is "subjective."[13] This criticism continued at the [page 337] second [14] and sixth session of the UNCITRAL Working Group [15] and results were soon seen: in 1975, at the sixth session, a completely new, "objective" test, was put into the center of the definition, viz., the substantial detriment sustained by the other party.

At the start of the second period, the test was not immediately changed in the course of further negotiations within the Working Group, at the 1977 UNCITRAL conference only the burden of proof was reversed. Finally, at the 1980 U.N. conference in Vienna, the test still remained essentially unchanged. We will revert to this later.

If now -- in a rather unconventional way -- we examine the number of words of the consequent definitions, we reach the following result.

Number of words
70                
60       64 64     65
50                
40   43 43          
30 31         38 37  
  ROME
1939
1956 1963 The
Hague
1964
Drafting
Party
ULIS
1964
UNCITRAL
Working
Group 1975
UNC;
Conf.
1977
UN
Conf.
1980

I. Period (ULIS)
/would not have entered into the
contract/
          
II. Period (UNCITRAL
/substantial detriment/

Period I

The 1939 Rome Draft [16] used no decorative speech in its test: "where it appears from the circumstances that the buyer would not have concluded the contract."

The 1955 Draft [17] introduced the "expectable" knowledge of the [page 338] party in breach -- that the other party would not have concluded the contract if he had foreseen the breach of contract.

The 1963 text was unchanged.

The text presented to The Hague Conference by the Text Committee [18] used further ornamentation. These were: "From the point of view of this statute" -- an introduction for the sake of perfectionism; instead of "party," "party in breach"; instead of "contracted," "entered into the contract"; instead of "breach of contract," "breach of contract and its consequences." Finally, the place of the "other party" is taken by the "reasonable person," a great favorite of the common law; this reasonable person must be in the same position as the other party.[19] The number of words was increased from 31 to 64; for those who believe in the possibility of a definition of fundamental breach this was a quite useful change: the final text takes both parties into consideration and the reasonable person standard supposedly makes the judgment objective.

The Hague Conference included the text of the ULIS Drafting Committee. This text was hardly to be further developed, though it could not have been entirely satisfactory because of the in definability of fundamental breach. Further efforts came to naught due to the ending of the conference.

Period II

"Fundamental breach" came into focus at the second session of the UNCITRAL Working Group in 1971. We have already mentioned that the text of ULIS was open to criticism. At this session, however, no decision was made. Nevertheless, the breakthrough was prepared by a Mexican suggestion, presented at this session. It contained one objective test: "whether the breach of contract significantly changes the extent and contents of the rights of the other party."[20] This was further developed at the sixth session in 1975:[21] the text contained "substantial detriment" and required that the party in breach should have had reason to foresee this consequence.[22] This survived the seventh session of the Working Group [page 339] in 1976. At the 1977 UNCITRAL conference, however, a counter-attack was launched by proponents of the ULIS test, though sweetened with slight modifications;[23] the counter-attack was then forced back.[24] A suggestion was presented to eliminate the definition [25] but met with strong resistance. Finally, as the result of a proposal tabled by the Philippines [26] delegation, the only change in the text apart from inserting and eliminating redundant aliments -- was to reverse the burden of proof with respect to foreseeability.[27]

At the Vienna conference a bad omen appeared when two delegations complained that the text containing "substantial detriment" was "subjective."[28] This -- as experience tells -- is the beginning of the end, almost identical to the silk string sent by the Sultan. But who would have thought that for one of them, a Pakistani proposal would bring satisfaction?,[29] namely, by linking "substantial detriment" to the basic change of the conditions of the contract (in other words to the old criteria of the Draft of Rome), which concentrated on the conditions of the contract rather than on the breach. What was, however, most striking, was that, in two phases, the basic text acquired baroque decoration. Committee No.1 received no less than seven proposals. Six of them retained "substantial detriment," but most of them thought the expression needed further clarification and, as a result, added further elements to the text. In this Committee, however, the text was only extended by one element, "the significant failure of the contractual expectations of the other party."[30]

This text was presented to the plenary session at a stage when there was considerable time pressure. When a dispute developed over the text, a working group was established that included every suggestion in the text. Due to the shortness of time the conference adopted this proposal without further consideration. This proves our axiom that the final day or two of such conferences should be eliminated because that is the time when texts are exposed to irreparable improvisations and hasty decisions. What happened was that a new test was introduced to explain "substantial detriment": a breach was fundamental if it substantially deprived a party of its contract expectation.[31] Thus, "substantially" -- from "substantial [page 340] detriment" -- which was to be clarified became an element of clarification of "detriment"; the robber became a cop. Furthermore, in place of the "other party," the well-known, yet mysterious "reasonable person" appeared, who was now not only under the "same circumstances" as the victim of the breach but was also of the "same type."[32] The result was that not only did "substantial detriment" have to be clarified but other questions also had to be considered: (a) what could the other party expect from the contract?; (b) when is he substantially deprived of it by the breach?; (c) when is the reasonable person of the "same type"?; and (d) when is he in the same position? The clarifications in the text thus created new questions, and in the meantime the number of the words increased from 37 to 65. And all this out of a desire to define at a high abstract level something that cannot be defined at all.

It can be seen from the chart and the story that the explanatory criterion is first phrased in a puritan, simple way; later -- impelled by dissatisfaction -- it becomes decorated with flowery elements until it develops into a text that cannot be further developed but still lacks something. At this stage the conference looks for and finds another, different test, phrasing it again in a simple way. That brings relief for awhile but the process starts all over again: dissatisfaction and over decoration. After all that, it is mere chance in which phase the text happens to be when the conference comes to an end. In the case of the 1980 U.N. Conference, it was an unlucky moment.

SECURITY OR PRACTICAL VAGUENESS OR RIGIDITY OR PRACTICAL FLEXIBILITY

In the course of unification of the rules of international trade, East-West conflicts have not been typical: nor were they at the Vienna U.N. Conference.[33] Nevertheless, on four issues the front lay more or less between the Socialist and Western legal systems.

The four issues were:

(a) the scope of application of usages;
(b) whether written form should be compulsory;
(c) whether the contract could come into being if the acceptance differs from the offer in unimportant respects;
(d) whether the contract could come into being if neither the price nor the way of quoting it is fixed in the contract. [page 341]

The four answers were as follows:

Socialist
     
Western
(a) Usages can only be applied if the parties agreed to it in the contract and they do not override statutory provisions to the contrary;   Usages are applied even if the parties agreed only impliedly and if reasonable-thinking parties who are in the position of the contracting parties consider them as being applicable. Usages derogate from the relevant provision of the uniform law (ULIS, Art. 9);
(b) Written form must be compulsory;   No formality is required
(c) The contract cannot come into being;   The contract can come into being;
(d) The contract cannot come into being.   The contract can come into being.

The socialist approach reflects the requirements of a planned economy. The fact that not all socialist countries supported each view can be accounted for by the fact that some were content if their own principles were applied in their domestic trade; so far as their Western trade was concerned they were ready to adjust to Western practice. All the more reason to do so because the trade law among COMECON countries inter se is unified and will remain unaffected by virtue of Art. 94 of the Convention.

The socialist view gives priority to the security of the contract and foreseeability [34] lest the contracting parties be taken by surprise. The socialist emphasis on security characterizes internal trade as well as COMECON trade, and its intensity is enhanced by the mistrust towards the West that has its roots in the period between the two world wars and the Cold War following World War II. Legally speaking, the socialist view is based on traditional legal solutions and, regarding the first question, on the rejection of customary law for constitutional reasons. Emphasis is on security without "surprises -- even at the expense of an otherwise desirable contract not coming into being, as in cases (b)-(d). An extreme example: if the price does not appear in the contract yet delivery was made, in certain countries the goods have to be returned. This security is in the first instance based on the so-called direct planned economy and is of a static character: it provides relative security only if no problems occur; its aim is to prevent conflicts and it is not very concerned with how to deal with problems should they occur. If prevention of conflicts fails there is little chance for the contract. Even that is a [page 342] sort of static security. In other words, rather than practical vagueness, security is sought.

The Western standpoint is adversary. Not that Western lawyers would deliberately seek practical vagueness rather than security; what they prefer is practical Western flexibility to socialist rigidity, with its bureaucratic means and methods. This standpoint reflects the atmosphere of modern Western internal and external trade. Significantly, socialist legal systems are advocates of specific performance while Western legal systems are prepared in advance to cope with conflicts and are masters of adjusting the contract without judicial interference, mainly in the case of long-term, complex contracts, such as contracts for work and services, group labor disputes, and in the area of partnerships and mergers. In the European Socialist countries, specific performance of the original -- if you like, rigid contract is central within the limits of objective possibility; in the West it is the elimination of conflicts through adjustments and compromises.[35] It seems futile to regard one approach as better than the other since different economic models and systems lie behind them and these in turn determine the positions.

It cannot be said, however, that the fronts never reverse and that it is always the East which requires -- at least superficially -- "security" or "rigidity," and the West "practical vagueness" or "flexibility." Behind this, of course, are economic-political interests. This was the case at the 8th session of the UNCITRAL working group where a Hungarian proposal was offered to insert a good faith requirement into the text of the Convention. This time it was the Western delegations who argued that the concept of good faith was vague, and thus injected an air of insecurity into the legal relationship. The socialist delegations tried to counter this argument by explaining that the proposal was practical and flexible. Behind the Western view was a reluctance to apply the concept of good faith in the area of international trade: the different economic-social-legal backgrounds resulted here in answers quite different from those given to the preceding "four questions."

But this leads us to the next topic -- to the most wicked part of this study.

ARGUMENT-PAIRS OR JOLLY JOKER AT THE CONFERENCE

In the previous section it became apparent that the same phenomenon can be called by different names depending on whether we like it or not. If we like it, it is called security; if not, rigidity. If [page 343] we like it, it is flexibility; if not, vagueness. It also often happens that if we like something we call it "objective," and if we do not like it, we call it "subjective."

We are concerned now with the pairs "vague-flexible" and "objective-subjective." It must be noted that while "objective-subjective" are adversarial concepts (the former being "good," the latter "bad"), "vague" and "flexible" mean essentially the same thing, depending on whether we like it or not. We are going to demonstrate a game using these judgment-pairs as seen in the disputes at the 1977 UNCITRAL Conference in Vienna and the 1980 Diplomatic Conference. We will try to show that these qualifications are often "argument-pairs" -- Jolly Jokers that can be used at almost any part of the dispute and can be trumps in almost any situation, often covering up real arguments. In reality, they are votes rather than arguments. This was noticeable as much in connection with "fundamental breach " as in the dispute over the principle of good faith.

In the course of the 1977 dispute over "fundamental breach," the concept of the "reasonable man" was characterized as subjective by one delegate opposed to the text and as objective by another who supported it.[36] A third considered the expression "has no further interest" to be subjective unless preceded by the word "reasonably."[37] The requirement of foreseeability was called objective by one delegate in defense of the text, but was criticized by five others as being subjective.[38]

In the same context, argumentation also invoked the dichotomy of "vague" and "flexible." Three delegations recognized the identity of the phenomenon that lies behind these two concepts but also their adversary value. In their opinion the text had to be "vague" in order to be "flexible;" it was not "vague" but would be more "flexible" if the United States motions were adopted.[39] According to a fourth delegate, the text was "vague," but the other motions were even "vaguer."[40] The U.S. delegate explained that his proposal was designed to give "flexibility" to the text; but the proposal was called too "vague" by two other delegations.[41] Finally, "detriment" was criticized by three delegates as "vague" but praised by another as "objective."

During the 1980 "fundamental breach" dispute, "substantial detriment" was pitted against "substantially impairs his expectations under the contract." The attitude of the delegates speaking on this subject was as follows: [page 344]

Substantial detriment (old)       Expectation (new)
flexible (SR 18, para. 19)   objective (SR 12, para. 19;
vague (SR 18, para. 24)   SR 18, paras. 23,24, 25,37)
subjective (SR 18, paras. 32, 37) Subjective (SR 12, para. 4;
SR 18, paras. 33, 38)

Eventually in the adopted text both "detriment" and "substantially" appeared, but "entitled to expect" replaced "expectation." Thus, the preceeding argument was forgotten: no wonder, because "substantial detriment" and "expectation" in themselves are neither objective nor subjective; it depends on whether their assessment is objective or subjective -- -but that distinction was not mentioned, only the labels.

"SCHLIESSEN WIR 'NEN KLEINEN KOMPROMISS" (TUCHOLSKI) OR THE CONVENTION MUST SUCCEED

International unification of law is hardly possible without compromise, since different legal doctrines and techniques have to be matched. Willingness to compromise, of course, is not found in equal measure in everyone. In some states giant corporations can persuade their business partners to accept their terms, and their business federations can influence -- through the state -- the delegation participating at the conference for the unification of law. These states do not need economic compromises, not even conventions, for the unification of law. Luckily it is in the political interest of these states to participate at these conferences and to act tolerantly. They do not risk anything since ratification is not compulsory, and if by any chance they ratify the convention, its rules are non-mandatory. Such countries are often more willing to compromise than others partly because they have extensive international trade, partly because their big corporations retain excellent legal counsel that can cope with foreign law, if necessary. However, on one or two questions important to them, they achieve the desired result, often by way of compromise. On the other hand, countries that feel driven into a corner in international trade are less willing to compromise. Other states that as yet lack any basis for comparative law are less willing, or perhaps less able, to compromise; their own domestic law seems the only possibility and their people seem incapable of handling foreign legal-technical solutions. In the two latter cases the argument is often voiced that the compromising notion is unacceptable because it is different from the national law of the delegate. This argument is usually rather weak, sometimes causes amusement, and occasionally serves as a test of tolerance and strength.

An additional problem is to maintain already agreed-upon compromises if the text takes years to complete, a period during which either the member countries of the committee or the delegates may [page 345] change.[42] In situations like this the achieved compromises are endangered and saving them is often a long process. This happened to CISG, which was drafted by an international working group for a decade, one third of whose membership changed triennially; finally, in 1977 and 1980, respectively, new countries joined in the work of the UNCITRAL Conference and the U.N. Conference.

It is probable that the more heterogeneous a conference, the more compromises are needed. In this respect, the 1964 Hague Conference was in a much easier position than the 1980 U.N. Conference; the former was almost entirely dominated by Western Europe, whereas the latter was composed of common law, developing and socialist countries.[43] Hence, ULIS and ULF necessitated fewer compromises than CISG.

Compromises can serve two opposing purposes: an illusory elimination of obstacles to the unification of law or the overt recognition of the failure to overcome such obstacles. An example of the latter is the premium for specific performance in Art. 28, authorizing specific performance if the court would order it in a similar case under its national law. This is an enclave built into the realm of unified law, the classical model of which is the admission of a conflicts rule instead of a uniform rule. Such an illusory elimination of the obstacles to unification and the statutory recognition of its failure is of course disadvantageous from the point of view of unification but is sometimes necessary for the unification of law. Even compromises that are seemingly against unification in fact favor it by making it possible for the conference to continue its work to completion, figuratively saving the bulk of the cargo by throwing only a small part of it overboard. This task is mainly carried out in the ad hoc working groups appointed by the leading committee, composed of delegates from countries with the largest stake but also assuring representation of regional and linguistic diversity.

Compromises, of course, can be grouped in many ways. From the many possibilities we have chosen two:

A. Compromises along the main conflict-lines: 1. Continental-Common law
2. East-West
3. North-South
4. ULIS-CISG
B. Groups according to the nature of the compromise: 5. clear compromises, easily recognizable by anyone;
6. compromises only recognizable as such from the documents of the conference;
7. compromises with reservatio mentalis /different interpretation;
8. illusory, "face saving" compromises. [page 346]

A. Main Conflict Lines

1. Continental: Common Law

The topic of international sales is not political by nature, although the aims of the New International Economic Order written into the preamble of the 1980 Vienna Convention contain political elements. This accounts for the fact that, although the Conference took place in March-April 1980, the serious international situation at the time did not interfere with the Conference. At a conference like this, the main conflict arises in the sphere of legal-conceptual, or legal-technical, questions. It is mainly European continental law versus the common law.[44] Historically speaking, from the beginning of the '30s, i.e., when the unification of international sales law started, European continental law was definitely dominant according to the main trend of the "movement" of comparative law [45] and according to the composition of the diplomatic conference that created The Hague ULIS and ULF.[46] But during the preparation of UNCITRAL, the common law gained ground, despite the fact that the method of codification and the style remained continental in nature.

The main conflicts between the two groups, not all resulting in compromise, were the following: binding force of the offer (which does not exist at common law); "dispatch-theory versus receipt theory" -- i.e., does the contractual declaration become effective at the time of its dispatch or of its arrival?; the remainder of the 1677 Statute of Frauds that, in a considerably restricted area, even today requires a written form for the enforcement of the contract [47] -- an idea abandoned in the Convention (Art. 11); the weakening doctrine of consideration in the common law, which requires counter value for the enforcement of contractual promises (since sale is onerous anyway, this would only have been of interest in the sphere of the modification or termination of the contract (abandoned in Art. 29)); the enforcement of specific performance, which is widely applied on the European continent but is exceptional in the common law countries, and which was settled -- to the detriment of unification -- in Art. 16 of ULIS and in Art. 28 of CISG: "Gewahrleistung," or "guarantee," in case of breach, including the rule of quanti minoris (Art. 50), which is a continental institution and not well understood by most common law delegates, or only interpreted as damages.[48] On the other [page 347] hand, the English dichotomy of "warranty and condition" is alien to continental, and for that matter to American, lawyers. This problem was basically settled relative to the terms of continental law (Arts. 39 and 40); finally, neither common law nor most European legal systems know the German "Nachfrist," inherited by CISG from ULIS, which makes avoidance unconditionally possible only after the lapse of an additional time-limit.

2. East-West

One group of East-West conflicts has already been mentioned when discussing "security or practical vagueness." From certain points of view we have also referred to the requirement of good faith and the disputes arising from it. The East-West confrontation on these issues was not entirely unambiguous either. As early as the Hague Diplomatic Conference in 1964, Dabin, the Belgian delegate, suggested general acceptance of the principle of good faith. This was opposed by the French delegate, Tunc, on the ground that it might lead to arbitrary judgments at the international level.[49] The appearance of the principle of good faith in the UNCITRAL draft was called a "clear step forward" by Huber (GFR).[50]

In the course of the preparations of UNCITRAL at the 8th session of the working group, the Hungarian delegation submitted a proposal for the adoption of the principles of fair dealing and good faith; it suggested withholding legal support from parties who violate these principles, and voiding the exclusion or restriction of liability for damage caused willfully or by gross negligence. This approach was completed by the principle of culpa in contrahendo, proposed at the next session by the West German delegation.[51] The motion was debated at the 9th session in September 1977 [52] -- and since the conclusion of the contract was on the agenda at that time, the discussion of these proposals was restricted to this field. The working group only adopted the principles of good faith and fair dealing. Culpa in contrahendo -- difficult to understand for common law delegates -- was not adopted. The working group also refused to accept the proposal to void conduct violative of these principles, as well as the proposal to limit the exclusion or restriction of liability, reasoning that questions of validity were outside the scope of the planned Convention. This later provided the delegates with arguments against the inclusion of any principles without legal remedies for violation. Some other delegates came to the same conclusion through opposite arguments. They were not concerned with remedies but found it unnecessary to include the principle of good faith [page 348] in the Convention, since it went without saying that such a principle applied anyway. Also, it was widely thought that the rule was vague, or at least would remain vague for a long time and, because of the laconic language of CISG, would never become unambiguous. Especially unacceptable to the common law delegates was the view that the principle of good faith should also cover the formation of the contract; in the U.S.A. it is only applied to performance and enforcement.[53]

The main arguments in favor of good faith were as follows: the necessity of "general clauses" in modern international trade; the fact that the principle of good faith should appear in an international agreement first, for reasons stated at the beginning of this paper and, second, because the principle conformed to the aims of the New International Economic Order; even the "Treu und Glauben" of the German BGB remained vague for a long time until judicial practice eventually defined its exact meaning. The requirements of good faith and. "fair dealing" survived the 9th session, but at the last session in January 1978, a counterattack was launched and fair dealing became a victim. Still, "good faith" survived, though exiled to a remote province when it was shifted to the article on interpretation of the Convention. Farnsworth (U.S.A.) politely, if ironically, called it a "statesmanlike compromise,"[54] but almost everybody thought it a strange compromise, in fact burying the principle of good faith and thus covering up the lack of compromise. At the 1980 U.N. Conference, it was subject to a restricted counterattack by non-socialist delegates, it being suggested that the principle of good faith should be moved from interpretation of the Convention to interpretation of the contract.[55] These motions were not carried. At the same time, however, since the working group, at its January 1978 session, noted in a footnote that the principle of good faith was included only in the section on the formation of the contract,[56] the 1980 U.N. Conference extended the scope of the rule to the performance of the contract. The result was strange but gained for the principle of good faith a foothold in an international convention for unification of law. It is hoped that this meager result represents a modest start.

3. North-South

The atmosphere of the North-South [57] debates was sometimes rather harsh amid references to the New International Economic [page 349] Order and the Asian-African Legal Consultative Committee. These debates were characterized, first, by the economic fact that the developing countries mainly export raw materials and agricultural products, i.e., mass products, and import technology and finished goods; second, by the awareness of their market's underdeveloped technological and legal condition; and third, by their frequently justified mistrust of developed industrial states. At the August 1979 Potsdam colloquium of the International Association of Legal Science on the proposed Convention, Date-Bah explained that Ghana had numerous important tradesmen who were illiterate, and as a result would have problems with the written declaration concerning nonconformity of the delivered goods "within a reasonable time" (Art. 39); that it often became necessary to call in foreign experts in order to carry out tests on imported, complicated machinery; that, not infrequently, delivered goods remained unpacked in the harbor for more than two years or that delivery to their final destination was frequently delayed.[58]

No wonder that under these circumstances one of the most dramatic debates at the U.N. Conference concerned the procedure in cases of non-conformity (UNCITRAL-text 1977, Art. 37-38; CISG-text, 1980 Art. 39, 40, 44). Eight modifying texts were presented and no less than 111 interventions were made at sessions 16, 17 and 21. The debate covered a very wide range. For example, the Austrian delegate explained that in his country the buyer had only eight days to give notice of nonconformity, and that therefore it was already a compromise on his part to accept the two years.[59] Others viewed two years as too short a time [60] and suggested that non-compliance should only be considered as relevant to the duty to mitigate damages. It became obvious that a compromise was absolutely necessary.

Actually, the functioning of the conference could clearly be sensed by considering a difficult compromise. The debate lasted for three days. On the first day the attack was started by developing countries.[61] On the second day the creation of an ad hoc working group was suggested. This was opposed by delegations of developed countries on the ground that a working group could only be set up if the committee worked out the principles (C.F.R., U.S.A., France and, changing its former view, Sweden [62]). They had good reason to believe that a working group, because of its composition, would accept the view of the developing countries. It was a tactical fight and the outcome was hardly in doubt: the ad hoc working group was established. Although the chairman of the committee did not appoint a working group, several delegations jointly drew up a compromise [page 350] proposal (Finland, Ghana, Nigeria, Pakistan and Sweden).[63] The debate over this proposal took place on the third day.[64] Speaking in favor were two developed countries (Australia and Great Britain), one developing country (Iraq), and the People's Republic of China. No less than 12 delegations spoke against it: two socialist (Czechoslovakia and the USSR), one developing (Chile). The rest were Western states: (Italy, Austria, Norway, France, Greece, G.F.R., Denmark, U.S.A., Spain). Thus, 12 out of 16 delegations spoke against the motion of the working group. The majority of the Conference voted against the less important parts of the motion, but voted for the main and most important part of it; the majority of delegations were loath to oppose the compromise on a matter of such moment to the developing countries.

The debate over Arts. 62-63 of UNCITRAL (CISG. Arts. 71-72), which allow suspension of performance in case of the other party's insolvency, was no less adventurous. Developing countries put in a strong plea for limiting suspension of performance to situations where difficulties arose beyond doubt, e.g., where the other party went bankrupt; the developed Western countries, on the other hand, wanted to decrease the risk of performance and advocated that the probability of troubles should suffice. The debate lasted four sessions.[65] At the first session there seemed to be no problem and a quick decision was taken. A few days later, however, the Egyptian delegate' succeeded in re-opening the debate.[66] At the next session the Egyptian motion was turned down by 19 votes against 19.[67] In view of the close result, an ad hoc committee of ten delegations was established [68] and the committee tabled a proposal that -- with minor alternations -- was adopted at the last session of the committee.[69] The result was a compromise: the test for suspension did not become entirely objective, not being restricted to the bankruptcy of the other party, but becoming less subjective than in the UNCITRAL text. Instead of "gives good ground to conclude," "it becomes apparent" was substituted, as had in fact already been suggested by the G.F.R. delegate before the debate, but which was, at the time, turned down.

The working group proposed that even in cases where trouble in performance had become apparent, suspension should only be justified if it was reasonable to do so; this restriction was finally deleted. Art. 53 of the UNCITRAL test, which makes avoidance possible if it becomes; clear before performance that a fundamental breach is on its way was eased in so far as the party intending to declare the contract voided must, if time allows, first give notice to the other [page 351] party in order to permit him to provide adequate assurance of performance (CISG, Art. 72(2).

The third North-South debate to end in compromise concerned the time of passing of the risk where goods are sold in transit (UNCITRAL, Art. 80; CISG, Art. 68). The debate was opened by the Pakistan delegate who called the UNCITRAL solution to the problem unjust.[70] (According to UNCITRAL, the time of passing of the risk is the time of handing the goods over to the carrier.) He suggested that, instead, the risk should pass at the time of the sale of goods in transit. In his opinion, the UNCITRAL rule was disadvantageous for developing countries, since mass products are usually sold in transit and the developing countries usually dispatch such goods. For this reason a rule that permits the passing of the risk before the conclusion of the contract of sale in transit would operate against the developing countries. A counter-argument stated that the goods were insured anyway, and therefore damage to the seller was out of the question (Sweden). Another contention was that if the goods sold in transit were damaged, it would be extremely difficult to establish whether the damage occurred before or after the sale (Norway). This view was supported by the Finnish and the Japanese delegates; the Pakistani proposal was supported by the delegate from Ghana. After this, the proposal was rejected and technical matters came under discussion. At the end of the session, however, the Pakistani delegate expressed his regret that a large majority of Committee members had not seen fit to take into account the legitimate interests of sellers of bulk commodities in developing countries and had thereby rejected the proposal made by the Asian-African Legal Consultative Committee. The problem was discussed again, after Committee I had concluded its work, at the plenary session where a compromise came into being. The first sentence contains the Pakistani proposal: the main rule is that the risk passes at the time of the conclusion of the contract. This is, however, followed by the exception "if the circumstances so indicate." Of course this is only formally a compromise where both parties give concessions to each other; in practice it will probably lead to a failure of uniform law since the judge has the power to choose the main rule or the exception at his whim. The compromise does not restrict the exception to cases where the time when the goods were damaged cannot be proved.

4. ULIS-CISG

Compromise between ULIS-ULF and CISG is of course unthinkable, but compromise is after all possible. One of the most important general problems of the Convention concerns the scope of conflict rules. ULIS excluded conflict rules altogether (Art. 2). This rule was strongly opposed in international legal circles and it became obvious that it could not be kept. The other possibility would [page 352] have been to have the conflict rules decide whether the Convention should be applied or not; in other words, the Convention would be applicable if the conflict rule of the forum points to the law of a state that is a member of the convention. This would have satisfied countries who are members of the 1955 Hague Convention on the Law Applicable to International Sales of Goods. CISG, however, in Art. 1(1) created a compromise: (a) if the states of both parties are members of CISG, CISG is to be applied regardless of conflict rules; (b) in any other case, CISG is to be applied if the conflict rule points to the law of a state that is a member of CISG.

This solution was subject to unexpected attacks at the 1979 UNCITRAL Conference and at the 1980 U.N. Conference. The delegations from Czechoslovakia and the G.D.R. suggested total exclusion of conflict rules, but on different grounds from ULIS. Although ULIS is applicable if the contract conforms to the definition of international sale (Art. (1)), the Czech and G.D.R. view was that the Convention should only be applicable if the states of both contracting parties were members of CISG.[71] Although the trend of ULIS is to extend the scope of application through exclusion of conflict rules, the other view, though also through exclusion of the conflict rules, drastically decreases the scope of the Convention's application, at least until a large number of countries join the Convention. Finally, a compromise was reached within the framework and at the expense of the comprehensive compromise. In the course of the debate in Committee I, four delegations supported and six (two of whom were socialist) spoke against the Czechoslovak proposal; the Committee rejected the motion. At the plenary session the Czechoslovak delegate did not insist on his original proposal but pleaded that any state should be free to declare that it will not be bound by Art. 1(1)(b). In other words, it will apply the Convention only if the states of both parties were members of CISG. This was surprisingly, adopted at the plenary session (Art.95).

B. Nature of Compromise

5. Clear Compromises

Some compromises in the Convention are clear and unambiguous, and recognizable as such. These are, first of all, compromises that take the form of a declaration allowed by the Final Provisions of the Convention. The compromise here lies in the fact that the majority of the conference allows the minority to make such a declaration. There are four such compromises in the Final Provisions of CISG: the exclusion of Part II or Part III (Art. 92); in areas covered by CISG, the declaration by states having similar legal systems that in their mutual relations CISG is not applicable (Art. 94); the exclusion [page 353] of conflict rules in connection with Art. 1(1) (b) (Art. 95); the permitting of a declaration for obligatory written form (Art. 96).[72] The compromise concerning specific performance also belongs to this category (Art. 28). All four cases are characterized by the fact that they impair the unification of law; bluntly speaking, everybody may apply his own law.

6. Covert Compromises

Other compromises are only detectable by those familiar with the history of the particular text. The general reason for this is that the main-rule/exception structure of drafting is very common, and from the analysis of the main rule and the exception it is difficult to learn whether the exception was a result of compromise or was necessary anyway. There are also other compromises which remain undetected by the outsider. The innocent reader of Art. 7(2) of CISG may be surprised to find the principle of good faith as a rule on interpretation of the Convention but will hardly discern that this strange arrangement conceals a compromise. The rules on suspension in case of anticipatory breach [73] and the time-limits in case of non-conformity, where the compromise is hidden four paragraphs after the main rule,[74] are of the same character.

7. Ambiguity

A third type of compromise is involved in instances of reservatio mentalis, or where at least two interpretations are possible.

Under Art. 16(2), an offer is irrevocable if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable. For the European continental lawyer, it is obvious that if a fixed time for acceptance of the offer is stated, this necessarily also indicates that the offer is binding until the time stated, though not thereafter. A prominent common law representative, however, interpreted this rule to mean that the offer is revocable any time until acceptance and that the time fixed for acceptance only means that an answer has to be given within this period, but that more precise language was necessary to make the offer irrevocable.

Another example is the rule for exemption from liability. Some delegates advocated strict liability,[75] others fault liability. Finally a decision was made to delete "fault" but to maintain the essence of the text,[76] What did this decision mean? According to some, the essence of the text supports the principle of fault, and this is why only the specific reference to "fault" was deleted. But if fault liability was retained, why was the word "fault" deleted? Other delegations [page 354] believed that the text does not involve any notion of fault and therefore the resolution abandoned the fault principle; but why then was it necessary to state that the essence of the text remained unchanged'? Would it not have been sufficient simply to state in the resolution that the reference to fault was deleted? Moreover, the discussion seems to resemble a tempest in a teapot, since there is hardly any practical difference between the two doctrinal approaches in trade practice: fault liability in very frequent borderline cases can hardly be distinguished from strict liability. For instance, the exculpatory possibilities of the socialist trade organizations are almost completely restricted to an area extremely close to strict liability, notwithstanding that in socialist theory contractual liability is supposedly based upon fault. In actual fact, socialist laws are in this respect stricter than Western laws, since in the West fault usually has to be proved by the claimant, whereas in most socialist countries the burden is usually on the party in breach. But even if in practice there is slight difference between strict liability and liability based upon presumed fault, one party's rhetoric might still invoke strict liability and another's, exculpatory liability.

"Veiled convergence," which is very typical in Western law,[77] also plays an important role in international trade, CISG accepts, first of all, the "Eastern " exculpatory liability. This consists of two conjunctive factors: (a) "impediment beyond his control"; and (b) "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 its consequences" (Art. 79(1)). Now, the "impediment beyond the control of the party" points very much to strict liability, but the reasonable expectancy, together with the burden of proof, is a form of exculpatory fault liability. Thus, the compromise -- interpreted by some as a manifestation of strict liability and by others as exculpatory fault liability. Both "parties" agreed in the hope that their doctrinal interpretation would be reflected in the practice of the Convention.

Both examples show that these compromises, at least doctrinally, do not lead to a uniform law: the compromise that was necessary for the adoption of a Convention does not bridge the gap, only covers it up. The piquancy of the second case is that in practice there is no gap, only in theory. The result of the third North-South debate, previously discussed,[78] also belongs to this category of compromise.

8. Illusory Compromises

Finally, there are illusory compromises. One such example is to be found in Art. 16(a) of CISG; part of the question has been dealt with already.[79] By virtue of Art. 16(2), an offer cannot be revoked if [page 355] (a) "it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable, or (b) "if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer."

It is argued that (a) uses continental language and (b) uses common law language, expressing the reliance doctrine. But the two say the same thing. When can the reliance doctrine in (b) come into action? When the offer, as well as conclusive attitudes, circumstances, etc., correspond to the criterion of (a). In such a case, it is reasonable for the offeree to rely on the irrevocability of the offer; (a) and (b) are not two different cases of irrevocability, but (a) explains "continentally" when the common law (b) can be applied.

EPILOGUE OR "I DID NOT COME TO BURY CAESAR"

It will obviously have struck the reader that this comment talks much about the hidden aspects of nonexisting conference-psychology and conference-tactics. The point was not to pass judgment but to present a chronicle by a tolerant participating "accomplice" who is ready to accept the inevitable. The above does not in any way diminish the respect and friendly relationship which the nostalgic author feels toward his conference and working group colleagues with whom he spent valuable and pleasant weeks every year for a decade.

Nor does this study contain an evaluation of the final product. But for those who might infer a condemnation of CISG from these lines, let us quote Shakespeare again, in the same way as we started: "I come to bury Caesar not to praise him." My intention is the same as Antony's in the play. We are convinced that CISG in its own right is an excellent legal text that deserves to be ratified or acceded to by a great number of states. Farewell CISG!

P.S. Just in case this epilogue should be thought subjective, we beg that despite what was said earlier, "subjective" should not be considered as the synonym of "bad" and deserving rejection. [page 356 ]


FOOTNOTES

* Professor of Law, University of Budapest.

1. Great Britain: Supply of Goods (Implied Terms) Act 6; Israel: Act No 5724/ 1964, S. 19. The West German Act on general contract terms (AGB-Gesetz, 9 Dec. 1976, BGB1 I 142) 12 restricts its application to a small circle in international trade.

2. Bonell, Le regale oggettive del commercio internazionale 136, n. 94 (1966); RG, Jur. Wochenschrift 586 (1932); Aussenwirtschciftsdienst des Betriebsberaters 190, 213 (1963).

3. The following abbreviations are used throughout this article:

CISG   United Nations Convention on Contracts for the International Sale of Goods (1980)
The Hague I-II   Diplomatic Conference on the Unification of Law Governing the International Sale of Goods, The Hague, 2-25 April 1964. Records and Documents of the Conference.
SR Summary Records (of the plenary sessions at the Vienna U.N. Conference (1980))
UNCITRAL     United Nations Commission on International Trade/UNCITRAL, adopted at the 1977 Vienna Conference of UNCITRAL.
ULF Uniform Law on the Formation of Contracts for the International Sale of Goods, adopted at the 1964 Diplomatic Conference, The Hague.
ULIS   Uniform Law on the International Sale of Goods, adopted at the 1964 Diplomatic Conference, The Hague.

4. The fact that the 1939 Rome draft was tougher than ULIS is all part of the history of development: it chose the price "demanded by the seller," provided this price did not "appear" to be contrary to justice (Art. 58; see The Hague II, 65). At the same time, Art. 67 of the 1957 draft very reasonably mentions "reasonable price" but less convincingly declares: "The parties may not plead the provisions of a municipal law which renders invalid a contract which does not stipulate a price" (The Hague II, 18).

5. At the 1965 Hague Conference, which finalized ULIS and ULF, 28 countries took part: 22 European or other developed Western countries, 3 socialist, and 3 developing countries. At the 1980 Vienna Conference which adopted CISG, 62 states took part: 22 European and other developed Western states, 11 socialist, 11 South American, 7 African and 11 Asian countries; in other words, roughly speaking, 22 Western, 11 socialist and 29 "third world" countries.

6. The Hague I, 41.

7. At the 1977 UNCITRAL Conference Sevón (Finland) and Krispis (Greece) moved for deletion: SR 4, 17, 22.

8. On this occasion it was elaborated by Ivan Szasz (Hungary) and by Sevón who stated: "Any motion creates more problems than it solves ... the increase of the number of words enhances the possibility of errors" ( 34, 37, 71).

9. Art. 35.

10. The Hague II, 126-127.

11. The Hague II 138.

12. These are as follows: The 1939 Rome draft, the 1956 and 1963 Working Committee draft, the text presented by the Drafting Committee to the 1964 Hague Conference, the Hague Uniform Law (ULIS) text, 1964, the 1975 text of the UNCITRAL Working Committee, the 1977 Vienna UNCITRAL text, and finally the text of the 1980 CISG.

13. E.g., observation of the Austrian government (The Hague II, 108), Dutch government (The Hague U, 138), U.K. government (The Hague II, 169); in the course of the debate: Loewe (Austria), Yadin (Israel), Davis (U.K.); against: Tunc (France), O'Keefe (Ireland), who definitely held the subjective notion appropriate (The Hague I, 35-36).

14. See UNCITRAL Yearbook II, 47, 59.

15. Subjective and too complicated: A/CN.9/WG.2/21, 67, Yearbook VI, 43-44; at the 1977 UNCITRAL conference Denmark SR 4, ( 14), Egypt ( 36), France ( 47), Singapore, Ireland (SR 5, 2, 4).

16. Art. 55(3):

"An obligation of the seller is an essential condition of the contract where it appears from the circumstances that the buyer would not have concluded the contract without such an undertaking."

17. Art. 15:

"A breach of contract shall be deemed to be fundamental wherever the party knew or ought to have known, at the time the contract was made, that the other party would not have contracted had he foreseen that such breach would occur."

18. Art. 15:

"For the purposes of the present Law, a breach of contract shall be deemed to be fundamental wherever a party in breach knew, or ought to have known, at the time of the conclusion of the contract, that a reasonable person in the same situation as the other party would not have entered into the contract if he had foreseen the breach and its effects."

19. It has to be noted that at The Hague Conference the quoted clause of the text of the Working Group appointed to draft this article, was opposed by many delegates, e.g. Yadin (Israel), Loewe (Austria): The Hague I, 41.

20. A/CN.9/100. Annex II; Yearbook VI, 39-46; Annex III, 62-69; A/CN.9/W.G.2/WP.21, 67-69.

21. Art. 10:

"A breach committed by one of the parties to the contract shall be regarded as fundamental if it results in substantial detriment to the other party and the party in breach had reason to foresee such a result."

22. Yearbook VI, 53.

23. G.F.R., Austria, Czechoslovakia, Bulgaria (A/CN.9X/C.1; SR 4, 5-7, 11-13, 40), Egypt (SR 5, 9).

24. Yugoslavia, U.S.A., Sweden, Greece, Australia, Japan, France (id., 10, 16, 19, 22, 24, 39, 47).

25. Finland (id., 17, withdrawn 41).

26. Id., 4.

27. Art. 23:

"A breach committed by one of the parties is fundamental if it results in substantial detriment to the other part unless the party in breach did not foresee and had no reason to foresee such a result."

28. Singapore (SR 12, 26); Spain ( 50).

29. A/Conf.97/X.l/L 99.

30. See these texts: A/Conf.97/11, 47-49, and the debate (SR 18, 13.37).

31. Art. 25:

"A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result."

32. There is nothing new under the sun. In 1964 Loewe (Austria) successfully opposed the inclusion of this into the text (The Hague I, 41).

33. See infra.

34. In connection with the price, the Soviet delegation mentioned the requirement of security (Vienna U.N. Conference: SR 24, 38).

35. U.S.A.: Macneil, "A Primer of Contract Planning," 48 So. Calif L. Rev. 627-704 (1975), idem, "Contracts: Adjustment of Long-Term Economic Relations under Classical, Neoclassical and Relational Contract Law," 72 Nw. V. L. Rev. 854-901 (1978), G.F.R.: Nicklisch, "Instrumente der internationalen Handelsschiedsgerichtbarkeit zur Konfliktregel und bei Langzeitvertragen; 1976 Recht der internationalen Wirtschaft 633-642; idem, "Mitwirkungspflichten des Bestellers beim Werkvertrag, in. sbesondere beim Bauund Industrieanlagenvertrag," 1979 Betriebs-Berater 533-544.

36. SR 5, 2, 4.

37. SR 4, 14.

38. SE 4, 11, 14, 36; SR 5, 2, 4.

39. SR 4, 15, 35, 47.

40. SR 4, 27.

41. SR 4, 16, 24, 35, 36.

42. See Bergsten-Miller, "Damages and Specific Relief," 27 Am. J. Comp. L. 255-277, (1979).

43. Supra, n. 5.

44. It is perhaps unnecessary to mention that there are numerous variations in both groups; the statements do not necessarily refer to each member of the group.

45. See e.g., Eörsi, Comparative Civil/Private/Law 1, (1979).

46. Of the 28 delegations, 4 belonged to common law countries; Japan is difficult to classify and the rest came from the continental area, including the socialist and South American states.

47. Great Britain: Anson, Principles of the English Law of Contracts 68 ff (22d ed., 1964).

U.S.A.: Farnsworth, Problems of the Unification of Sales Law from the Standpoint of the Common Law Countries: Problems of the Unification of International Sales Law 11-13 (1980).

48. Bergsten-Miller, supra n.42 at 255-277, Farnsworth, supra n. 47 at 17-18.

49. The Hague I, 100.

50. Huber, "Der Uncitral-Entwurf eines Übereinkommens über internationale Warenkaufvertrage, 43 RabelsZ 413-521, 430 (1979).

51. See texts A/CN.9/WG/IX/CRP.12/add.2. The Hungarian motion: Report of the UNCITRAL on the Work of Its Eleventh Session/Supp. No. 17/A/13/17/, U.N. 1978, 64-68. G.D.R. motion: A/CN.9/WG.2/WP.29, Annex, 3.

52. For the adjournment see: A/CN.9/WG.2/WP.28 60.

53. See Farnsworth (supra, n. 47). The principle of good faith was adopted by the Uniform Commercial Code 1-203 and the American Restatement, Second of Contracts 231. See Farnsworth, id. at 25.

54. Farnsworth, id. n. 47 at 19.

55. Norway (SR 5, 6, 41); Italy ( 4, 40); Republic of Korea ( 48); Iraq ( 44).

56. A/CN.9/142/add.1., ad.5.

57. Another rough generalization. Several South American delegations sided with the European Continental laws, and sometimes the familiar common law attitude was stronger in the delegates of ex-British colonies than their identify with developing countries.

58. Date-Bah, (supra, n. 47).

59. SR 16, 58, Similarly the G.F.R. (S.R. 21, 18).

60. Ghana (SR 16, 32), Kenya ( 42), Pakistan ( 45), People's Republic of China ( 47), Nigeria ( 48), Singapore ( 51), Libya ( 59).

61. A/Conf. 97/C.l/SR 17.

62. SR 17, 11, 12, 14, 15.

63. A/Conf.97/C.1/L.252.

64. SR 21.

65. SR 25, 34, 35, 38.

66. SR 34, 53-62.

67. SR 35, 21.

68. SR 35, 28.

69. SR 38, 20.

70. SR 32.

71. The background of the view is that these two states have international trade codes and for that reason any other law, selected by the conflict rule, could cause "special difficulties."

72. Art. 93 is of a different character.

73. See text at n. 66.

74. See text at n. 59.

75. At the 1977 UNCITRAL-Conference Norway, Ghana, Austria, Poland (non-unambiguously), Czechoslovakia, UK: A/CN.9/X/C.1, SR 23, 59, 61-64, 74.

76. Id., 79.

77. Eörsi, supra n. 223-224.

78. See text at n. 71.

79. Supra, text preceding n. 74.


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