ANNOTATED TEXT OF CISG
Article 79

(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, that 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 article 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.

Legislative history || Case law || Scholarly writings || Links to related articles || Words and phrases || CISG (full-text)

Guide to this article

• UNCITRAL outline of issues present
  
• Editoral analysis of this article with cross-references to related subjects [not yet available]
  
• Secretariat Commentary (closest counterpart to an Official Commentary on this article)
  • Match-up of this article with the 1978 draft
  (to validate Secretariat Commentary)
• Use of the UNIDROIT Principles to help interpret CISG Article 79
• Use of the Principles of European Contract Law to help interpret CISG article 79
  • Match-ups with Continental and Common Law domestic rules, doctrine and jurisprudence

• Roadmap to the legislative history of this article
• Legislative history of this article: long form
• Legislative history of this article: short form
  • Chronology of development of Article 79 at the 1980 Vienna Diplomatic Conference
• Summary of UNCITRAL legislative history
• Hague Convention antecedents
  • Article 79 match-up with ULIS
  • ULIS (full-text) and André Tunc Commentary on ULIS

• For a leading case on Article 79, go to Bundesgerichtshof VIII ZR 121/98, a decision of the Supreme Court of Germany handed down on 24 March 1999

• Hypothetical case: a possible basis for arguing that the problem of hardship and adjustment of contracts is a matter governed by the Convention: comments by Peter Schlechtriem

• For further information on CISG case law (material not in this database), go to Unilex: click for a description of the contents of this service. Also of considerable utility are the compendium of case citations and the CISG bibliography contained in Michael R. Will, Twenty Years of International Sales Law Under the CISG: International Bibliography and Case Law Digest, Kluwer Law International (2000). Prof. Will's materials are presented on the CD-Rom edition of the database.

• Selected monographs and anthologies (English language)

• Comments on Article 79 from 1999 text by John O. Honnold [U.S.] [available in CD-ROM edition only]

• Comments on Article 79 from seminal 1986 text by Peter Schlechtriem [Germany]
• Comments on Article 79 from monograph by Jacob S. Ziegel [Canada]
• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries

• Jennifer M. Bund [U.S.], Force Majeure Clauses: Drafting Advice for the CISG Practitioner, 17 Journal of Law and Commerce (1998) 381-413

• Sarah H. Jenkins [U.S.], Exemption for Nonperformance: UCC, CISG, UNIDROIT Principles - A Comparative Assessment, 72 Tulane Law Review (1998) 2015-2030

• Kai Krüger [Norway], Financial force majeure: The extent of efforts which the seller must take to overcome impediments for performance in contracts for the sale of goods under Scandinavian law - remarks on the impact of CISG Art 79 [source: "Rättsvetenskapliga studier till minnet av tore Almén" pp 239-273, Iustus Fölag, Stockholm (1999) © Kai Krüger. A review of the common law historical approach, the continental position and the Scandinavian approach in the context of CISG art. 79 construed also under the lens of CISG art. 7(1)]

• Rebecca H. Marek [U.S.], Continuity for Transatlantic Contracts after the Introduction of the Euro, 66 Fordham Law Review (April 1998) 1985-2031 [transatlantic supply contracts that have payment terms denominated in a European currency which will be replaced by the Euro and do not provide for a currency alteration: consideration of the possibility of significant currency alterations and consequences consequences under three legal regimes -- the UCC, CISG and UNIDROIT Principles]

• Barry Nicholas [United Kingdom], Force Majeure and Frustration, 27 American Journal of Comparative Law (1979) 231-245

• Joern Rimke [Germany/South Africa], Force Majeure and hardship: Application in international trade practice - with specific regard to the CISG and the UNIDROIT Principles of International Commercial Contracts [Pace essay submission (1999)]

• Peter Schlechtriem [Germany], excerpt from Uniform Sales Law: The Experience with Uniform Sales Laws in the Federal Republic of Germany, Juridisk Tidskrift (1991/91) 1-28

• Todd Weitzmann, Validity and Excuse in the UN Sales Convention, 16 Journal of Law & Commerce (1997) 265-290

• To identify other relevant commentaries, go to Bibliography and Bibliography Search Form [exemption (stem for exemption/exemptions), force majeure, excus* (stem for excuse/excusable delays) and impediment* (stem for impediment/impediments) are search form entries you may wish to consider]

  Our bibliography contains thousands of citations in 24 languages; we encourage you to tailor your own bibliography search to the specific aspect of this article that you are researching.

Links to related articles

• Article 79 [Impediment excusing party from damages] is part of the section entitled Exemptions. This section contains two articles. To link to the other article, go to Annotated Text of Article 80 [Failure of performance caused by other party]

• For links to the CISG's section on Damages, go to Annotated Text of Article 74 [General rules for measuring damages]; go to Annotated Text of Article 75 [Damages established by substitute transaction]; go to Annotated Text of Article 76 [Damages based on current price]; go to Annotated Text of Article 77 [Mitigation of damages]

Words, phrases and concepts

• State of knowledge ("ought to have known") [79(4)]: link to same language and to variations on this theme recited elsewhere in the CISG

• "impediment" [79(1), (3) and (4)]. "[S]ubstantial difficulties . . . seem to have been swept under the carpet. One issue is whether the text may apply when the seller delivers defective goods without fault on his part as opposed to a situation of nondelivery or late delivery. According to a common law commentator, article 79 should not apply because 'deciding whether the defect results from "fault" may call for enquiry into the manufacturing process of the seller or of a remote supplier' and that 'a final resolution of this issue is expensive and uncertain'. See J. Honnold, Uniform Law for International Sales 430 (1987) . . . Therefore, the author insists that use of word 'impediment' (like the word obstacle) implies that nonperformance consists in nondelivery but not in defective performance. Nevertheless, according to the English text itself, excuse may be brought up by a party for failing to perform 'any of his obligations,' and conformity of the goods is unquestionably an obligation of the seller (art. 35). Therefore, 'the obligation to deliver conforming goods also comes within the scope of Article 79.' See Tallon in [C. Bianca & M. Bonell], Commentary on the International Sales Law 577 [1987]." Bernard Audit, "The Vienna Sales Convention and the Lex Mercatoria", in: Lex Mercatoria and Arbitration, rev. ed., T. Carboneau ed. (Juris publishing 1998) 179-180 n.17.
• "If the party's failure is due to the failure by a third person whom he has engaged . . ." (79(2)). Colloquies at the Diplomatic Conference on the scope of Article 79(2). OR 378-381, paras. 21-51; OR 408-409, paras. 61-74; OR 410-412, paras. 1-37 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March 1980, A/CONF. 97/19]

• notices governed by receipt rule (notice of impediment excusing party from damages [79(4)]): for commentary on this and other notices, go to Peter Schlechtriem [Germany], Effectiveness and Binding Nature of Declarations (Notices, Requests or Other Communications) under Part II and Part III of the CISG, Cornell Review of the Convention on Contracts for the International Sale of Goods (Kluwer 1995) 95-114

• reasonableness [79(1), (4)]: In addition to being specifically mentioned in this article, reasonableness is a general principle of the CISG
  • For the definition of reasonableness recited in the Principles of European Contract Law and references to reasonableness in Continental and Common Law domestic rules, doctrine and jurisprudence, go to PECL article 1:302 and the comment and notes prepared for this provision

  • To drive home the correlation between the PECL's definition of reasonableness and the evident same meaning of this term to CISG legislators when they used the concept either specifically or as a general principle of the uniform law they drafted, see overview comments and comments that illustrate the similar manner in which this concept fits the CISG