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LEGISLATIVE HISTORY

Legislative history of CISG article 79: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 65

(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 he is exempt under paragraph (1) of this article and if the person whom he has engaged would be so exempt if the provisions of that paragraph were applied to him.

(3) The exemption provided by this article has effect only 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 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 nonreceipt.

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

  

CISG article 79

(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 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.


Editorial comments

With one exception, there is no substantive difference between CISG article 79 and 1978 Draft article 65. Subject to attention to this exception, the Secretariat Commentary on 1978 Draft article 65 should be relevant to the interpretation of CISG article 79. The exception is the deletion of the word "only" from paragraph (3). The Summary Records of the Vienna Diplomatic Conference contain the following explanation: "Mr. ROGNLIEN (Norway), introducing his delegation's amendment [Change paragraph (3) to read: 'Where the impediment is temporary, the exemption provided by this article has effect for the period during which the impediment exists. Nevertheless, the party who fails to perform is permanently exempted to the extent that, after the impediment is removed, the circumstances are so radically changed that it would be manifestly unreasonable to hold him liable.' Alternatively, delete 'only'.] said that the text of paragraph (3) could be constructed as meaning that the exemption ceased with the impediment, even if the later was of very long duration. That result was undesirable because, in the case of a long-term impediment, circumstances could change radically and make it totally unrealistic to impose performance at that late stage. In reality, the problem of permanent relief had not been dealt with in the paragraph; the matter had been left to national law. Accordingly, his delegation proposed that the rule now embodied in the single sentence of paragraph 3 should relate to temporary impediment. His delegation's proposal contained also a separate provision, in the form of a new second sentence, to deal with the problem which arose when, after the removal of the impediment, the circumstances were so radically changed that it would be manifestly unreasonable to hold liable the party concerned. The question had been discussed for a long time within UNCITRAL without arriving at any agreement. His delegation's proposal, he hoped, provided a solution. If no agreement could be reached on the proposed formula, he would suggest the deletion of the word 'only' from paragraph 3, a second best solution based on the understanding that the paragraph and the whole of [CISG article 79] did not contain provisions regulating a possible permanent relief" (Official Records, p. 381). Rognlien's proposed language, which is similar to ULIS article 74(2), was not accepted. However, his "second best solution" was approved. Commentators' assessments of the significance of the deletion of the word 'only' range from Tallon and Vilus, who do not appear to regard this as having any significance (footnote 1), to Honnold, Schlechtriem and Nicholas who advise: "[T]his change was designed to avoid any impression that paragraph (3) laid down a rigid rule requiring contract relations to resume on the original basis no matter how long the interruption or how great the change in the circumstances ... (footnote 2). "The Norwegian proposal concerned the case of temporary impediments which later vanish. In that case, consideration would be given to the fact that the economic situation of the debtor might fully have changed. Though the contractual agreement should be decisive in this situation, some delegates apparently assumed that recourse to domestic law would still be possible.... By the acceptance of the Norwegian amendment to delete the work 'only' in article 79(3), it became clear that, even if the original impediment is removed, it is still possible that a new exemption can arise for the debtor if there is a change in circumstances" (footnote 3). "The intention behind this amendment was to leave open the possibility that the exemption might continue even after the period during which the exemption existed. The paragraph therefore might be read as if it said something like the following: 'The exemption has effect for the period during which the impediment exists and may have permanent effect if after the impediment has ceased to exist the circumstances have so radically changed that it would be manifestly unreasonable to hold the non-performing party liable [for damages]' . . . It has to be said, however, that even if the non-performing party persuades the court to adopt this interpretation, he may find that, though he is indeed exempt from liability in damages, he may still be compelled to perform" (footnote 4).


FOOTNOTES

1. Denis Tallon, in: Bianca/Bonell Commentary on the International Sales Law (Giuffrè: Milan 1987) 574; Jelena Vilus, in: International Sale of Goods: Dubrovnik Lectures (Oceana: New York 1986) 254.

2. John O. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention, 2d ed., (Kluwer Law International 1991) 548.

3. Peter Schlechtriem, Uniform Sales Law (Manz: Vienna 1986) 102 n.423.

4. Barry Nicholas, in: Galston/Smit eds., International Sales (Matthew Bender: New York 1984) 5-17/18; see also Ndulo who points out: "Article 74(2) of the ULIS . . . states that even if the impediment is only temporary, the party will be permanently relieved of his obligation if, by reason of the delay, performance would be so radically changed as to amount to a quite different obligation from that contemplated by the contract. In such a case, under the UN Sales Convention it would seem the party would be obliged to perform." Muna Ndulo, The Vienna Sales Convention 1980 and the Hague Uniform Laws on International Sale of Goods 1964: A Comparative Analysis, 38 International and Comparative Law Quarterly (1989) 21.


Pace Law School Institute of International Commercial Law - Last updated July 15, 1999
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