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Cite as Tallon in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 596-600. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 80

Denis Tallon

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 80

A party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first party's act or omission.

1. History of the provision

     1.1. - This article deals with the second case of exemption, that which is due to the promisee's act or omission. It did not exist in the UNCITRAL Draft Convention and was introduced by way of an amendment proposed during the Vienna Convention to answer the question of the consequences of the promisee's behaviour on the defaulting party's liability. One may ask why such a provision was absent from the UNCITRAL Draft Convention as most legal systems envisage the problem (sometimes referred to as the sharing of liability). It was submitted during the Vienna Convention that any specific provision to this effect would be pointless as the rule was already covered by the principle of good faith. This view, however, did not prevail. Resorting too frequently to Article 7(1) would indeed have weakened the other provisions of the Convention and given the judge arbitrary powers. The text of Article 80 was thus adopted and its wording entrusted to the Drafting Committee -- which also had to decide whether this novel provision should be included under the Chapter entitled «General Provisions» or under that relating to exemption. The latter solution was preferred and finally ratified by the Conference.

Some commentators regard Article 80 as another way of formulating the last sentence of Article 74(3) of ULIS and as «designed to close the gap in the structure of Article 79» (HONNOLD, Uniform Law, 444). The history of the text -- which was even proposed to be inserted in the Convention's provision does not confirm this minimal construction. And the scope of the [page 596] so-called similar provision in Article 74(3) of ULIS is uncertain since it seems to deal only with total exemption. By drafting an autonomous and widely worded provision, the Conference clearly evinced its intention to place Article 80 on an equal footing with Article 79.

2. Meaning and purpose of the provision

     2.1. - Non-performance in the situation envisaged by Article 80 results from two factors: an act or omission of the promisor (called A) and an act or omission from the promisee (B) or any third party for whom a party to the contract is answerable being considered as a party to the contract. Furthermore, and this is the most delicate point, the failure to perform must be imputable to both parties (causal element).

     2.2. - First, there must be a «failure of the other party (A) to perform». The expression is very broad. It is the key of the distinction between Article 79 and Article 80 at least in the maximalist interpretation adopted here, based on the respective wording of the two texts. If the failure is due to an impediment, as defined by Article 79, this text will apply with all its consequences. If the failure is due to A, then Article 80 will deal with the consequences of the aggrieved party's own failings, which may be a cause of exemption for A. Thus the two articles are in perfect harmony.

     2.3. - The failure to perform must be attributable to an act or omission of B. The phrase is also very broad. It necessarily covers the violation by B of his own obligations: e.g., B gave inadequate specifications or sent them after «a reasonable time» (see Article 65) thus aggravating the delay already attributable to the seller; or B gave inaccurate specifications which A (the seller-manufacturer) in any event failed to check thus leading to the manufacturing of non-conforming goods. Does it also include tortious behaviour as opposed to the breach of some contractual term, e.g., a misrepresentation of some sort? The general wording of the text should lead to the adoption of the broader solution even if it extends to matters that are not expressly covered by [page 597] the Convention. But the «need to promote uniformity» expressed in Article 7 must prevail. The distinction between contractual liability and tortious liability -- as well as the relationship that exists between them: exclusive or cumulative -- varies considerably from one system to another. The tort committed by one of the parties must therefore be taken into account in determining what remedies are available to that party following a failure to perform by the other party. Moreover, it must be connected with the failure to perform.

     2.4. - Article 80 presupposes that the failure to perform is due to both an act or omission of the promisor and an act or omission of the promisee, i.e., that it is by definition imputable to A but also «caused» by B. The problem raised here is one of causality and thus difficult to apprehend concretely. An infinite number of situations may arise in which the non-performance is partly attributable to A and partly imputable to B. Insofar as the damage results from two causes, the extent to which each party is liable for the failure to perform has to be determined.

     2.5. - The text lacks precision: a party who contributed to the failure cannot «rely» on the other party's failure. In other words, depending on the circumstances, B cannot claim the remedies that are normally available to the seller (Articles 45 to 52), to the buyer (Articles 61 to 65) or to both (Articles 71 to 73).

The consequences of the text are most easily understood when B claims compensation in money. The judge will be able to award a lesser amount. The same will apply to all remedies that resolve in damages: e.g., the replacement of the goods.

Other remedies, however, cannot be so «reduced». This applies especially to specific performance (or other similar remedies) and avoidance. The judge should then be allowed to award damages in lieu of the remedy claimed by the injured party. If, for instance, B claims specific performance following the delivery by A (the seller) of non-conforming goods although the defect is due partly to the former's erroneous specifications, the judge may award damages although less than what A would have had to disburse in order to replace the goods. The judge may also refuse avoidance notwithstanding a fundamental breach or allow it and refuse (or reduce) the damages that should have been awarded concurrently. [page 598]

The measure of the exemption will be very difficult to determine. The text is of little avail. It only indicates that the causes must be apportioned; but it does not specify how. Two methods are conceivable (and adopted by domestic laws). The first one, the most in harmony with the spirit and the letter of the text, consists in the apportionment of the causes depending on their degree to objective causation. Part of the damage must be imputed to B because it was highly probable that his behaviour would entail the failure to perform. The degree of probability is the decisive criterion in this case.

The other approach is more subjective. It consists of comparing the gravity of the respective behaviours of the parties, thus partially reverting to the notion of fault (by attraction to the law of torts, one might speak of the fault of the victim or of contributory negligence). But as the Convention has set the notion of fault aside, the former method of evaluation is the better one. The two approaches are not, however, totally unrelated insofar as the more reprehensible the behaviour of one party is, the more likely it is to have played an important causal role in the other party's failure to perform.

Finally, to the extent that the text fails to provide any precise indication, the role of the judge appears fundamental.

3. Problems concerning the provision

     3.1. - It is not surprising to discover that even in a system of objective liability the failure to perform due to both parties lead to a comparative analysis of their respective behaviours. It does not necessarily amount to a resurrection of the notion of fault -- set aside, as a matter of principle, by the Convention -- but rather to the application of the principle of good faith. It is contrary to good faith that B should obtain total compensation when he, himself, failed to perform one of his obligations under the contract or had a faulty behaviour in view of the law of torts. Once the principle is acknowledged, the main problem of application relates to the powers of the judge with respect to the «apportionment» of the causes between A and B and the extent to which A is exempted. In the absence of any precise indication in the text (which, in any event, would have been [page 599] most difficult to give), one must acknowledge that the judge has a quasi-discretionary power and will eventually be led to seek guidance in the familiar rules of his own law. [page 600]


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