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Reproduced with permission of 17 Journal of Law and Commerce (1998) 187-217
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In an article written for the 1987 symposium on the CISG sponsored by the Journal of Law and Commerce, I addressed the standards found in Articles 71 and 72 dealing with the effect of a party's prospective inability to perform. Article 71(1) permits a party to suspend temporarily its performance if "it becomes apparent that the other party will not perform a substantial part of his obligations." Article 72(1), on the other hand, allows a party to avoid the contract, thus putting a permanent end to its obligation to perform, if "it is clear" that the other side "will commit a fundamental breach of contract." In my earlier article I noted (as have others) that the Convention appears to require a higher degree of certainty that a future breach we'll occur in order to justify permanent avoidance of contract as compared to temporary suspension of performance. In other words, Article 72 states that the prospect of future breach must be "clear" to justify avoidance, whereas suspension under Article 71 requires only that the threat of breach "becomes apparent." But I went further and made an original (albeit minor) argument that the Convention also required the threat of a more serious breach -- one with more significant consequences -- to trigger avoidance under Article 72 as compared with suspension of performance under Article 71.
My argument -- that avoidance of contract under Article 72 required the prospect of a more serious breach than did mere suspension of performance under Article 71 -- was in large part a textual one. This textual argument focused on the fact that the English version of Article 72 required the threat of a "fundamental breach of contract," whereas the English text of Article 71 required only the possibility that a party would not perform "a substantial part of his obligations." The thrust of the argument was that the drafters would not have used two different phrases ("fundamental breach" as opposed to non-performance of "a substantial part of his obligations"), and in particular, two different adjectives describing the seriousness of the breach ("fundamental" as opposed to "substantial"), had they not intended to distinguish the seriousness of the threatened breach that would satisfy the standards of the respective articles.
Some time after publishing this argument I had occasion to look at the official French version of Articles 71 and 72, and was surprised to discover that my argument was, at the least, much harder to make under the French text. In the French version, both Article 71 and Article 72 use the same adjective to describe the seriousness of a threatened breach that would trigger their provisions. In both, the standard is a breach or non-performance that is "essentielle," i.e., Article 71 states that, to justify suspension, a party must threaten non-performance of "une partie essentielle de ses obligations," and Article 72 requires a threat of "une contravention essentielle au contrat" to warrant avoiding the contract. One need not be an accomplished linguist to recognize that the French text's use of the same adjective to describe the severity of the threatened breach in both Articles 71 and 72 undercuts my argument, particularly when a different adjective equivalent to (indeed, a cognate of) the adjective used in the English text of Article 71 -- "substantielle" -- was available to the drafters of the French text.
I will not here try to sort out whether the French text of Articles 71 and 72 conclusively rebuts my argument. I merely wish to give an example of how different official language versions of the same CISG provisions constitute substantially different texts . . .
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* Professor, University of Pittsburg School of Law, A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law.
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10. CISG, supra note 1, art. 71(1).
11. Id. at 72(1).
12. Compare Harry M. Flechtner, Remedies Under the New International Sales Convention: The Perspective From Article 2 of the U.C.C., 8 J.L. & Com. 53, 94 (1988) (arguing that the CISG requires a higher probability that a threatened future breach will occur in order to justify avoidance of contract under Article 72 as opposed to suspension of performance under Article 71) with John Honnold, Uniform Law for International Sales under the 1980 United Nations Convention § 388 at 487 & § 396 at 495 (2d ed. 1991) (the same) [hereinafter Honnold Treatise].
13. See Flechtner, supra note 12, at 94.
14. CISG, supra note 1, arts. 71, 72 (French version), reprinted in Documentary History, supra note 3, at 825 (emphasis added).
15. For one approach to reconciling divergent official language versions of the CISG (an approach that would be quite unhelpful in the particular case described in the text), See the text accompanying note 67 infra. The official Spanish text of Articles 71 and 72 echoes the English text in using two different adjectives ("sustancial" in Article 71; "esencial" in Article 72) to describe the seriousness of the breach required to trigger the two provisions. I do not possess the requisite language skills to comment on the Chinese, Russian or Arabic texts.
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