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Comments on Raw Materials Inc. v. Manfred Forberich

U.S. District Court [Illinois], 6 July 2004

Albert H. Kritzer
February 2005

The Raw Materials Inc. court states:

"[Plaintiff] RMI asserts that '[w]hile no American court has specifically interpreted or applied Article 79 of the CISG, caselaw interpreting the Uniform Commercial Code's ('U.C.C.') provision on excuse provides guidance for interpreting the CISG's excuse provision since it contains similar requirements as those set forth in Article 79.' (D.E. 18 at 8 n. 5.) This approach of looking to caselaw interpreting analogous provisions of the UCC has been used by other federal courts. See, e.g., Delchi Carrier S.p.A. v. Rotorex Corp., 71 F.3d 1024, 1028 (2d Cir.1995) ('caselaw interpreting analogous provisions of Article 2 of the Uniform Commercial Code ("UCC") may also inform a court where the language of the relevant CISG provisions track that of the UCC'); Chicago Prime Packers, Inc. v. Northam Food Trading Co, No. 01-4447, 2004 WL 116628, at *4 (N.D.Ill May 21, 2004) (same). Furthermore, [Defendant] Forberich does not dispute that this is proper and, in fact, also points to caselaw interpreting the UCC. (D.E. 20 at 9 n.6). Accordingly, in applying Article 79 of the CISG, the Court will use as a guide caselaw interpreting a similar provision of 2-615 of the UCC."

The court uses as a guide case law on the UCC, a law that is not at issue, in applying Article 79 of the law that is at issue, the CISG.

The court presents a report that "no American court has specifically interpreted or applied Article 79 of the CISG."

Not cited by the court is case law on Article 79 of the CISG handed down by courts of Austria, Belgium, Bulgaria, China, Finland, France, Germany, Hungary, Israel, Italy, Netherlands, Russian Federation, Switzerland and by arbitrators of the International Chamber of Commerce. See <http://cisgw3.law.pace.edu/cisg/text/anno-art-79.html>. Relevant to such case law is the rule recited by the Solicitor General of the United States. He quotes the U.S. Supreme Court as follows in his brief in the case of Zapata Hermanos v. Hearthside Baking, <http://cisgw3.law.pace.edu/cisg/biblio/zapata4.html> at page 10.

"[J]udicial decisions from other countries interpreting a treaty term are 'entitled to considerable weight.' El Al Israel Airlines Ltd. v. Tsui Yan Tseng, 525 U.S. 155, 176 (1999) (quoting Air France v. Saks, 470 U.S. 392, 404 (1985)."

The Raw Materials court cites instead UCC 2-615 case law, referring to UCC 2-615 as a provision that it regards as "similar" to, "analogous" with Article 79, a provision of the CISG whose language the court regards as "track[ing] that of the UCC".

UCC 2-615 and Article 79 CISG track one another as follows:

UCC 2-615 states:

"Except as far as seller may have assumed a greater obligation and subject to the preceding section on substitute performance:

(a) Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves invalid.

(b) Where the causes mentioned in paragraph (a) affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.

(c) The seller must notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer."

Article 79 CISG states:

"(1) A party is not liable for a failure to perform any of his obligations if he proves that the failure 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.

"(2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, the party is exempt from liability only if: (a) he is exempt under the preceding paragraph; and (b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him.

"(3) The exemption provided by this paragraph has effect for the period during which the impediment exists.

"(4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.

"(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention."

The Raw Materials court uses decisions under UCC 2-615 to interpret Article 79 of the CISG.

Expressing concern over the "use of cases decided under one law to interpret provisions of the other law", referring to this as "inappropriate", the report of the organization that sponsors proposed revisions to the UCC states:

"This type of interpretation is contrary to the mandate of both the Uniform Commercial Code and the CISG. Specifically, Section 1-103(b) of the Code directs courts to interpret it in light of its common law history. This was an underlying principle in Article 2 On the other hand, the CISG specifically directs courts to interpret its provisions in light of international practice with the goal of achieving international uniformity. See CISG art.7. This approach specifically eschews the use of domestic law, such as Article 2, as a basis for interpretation." (emphasis added)*

* Cited in Harry M. Flechtner, "Substantial Revisions to U.S. Domestic Sales Law", International Handelsrecht (6/2004) 225 at 234.


Pace Law School Institute of International Commercial Law - Last updated March 7, 2005
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