LEGISLATIVE HISTORY

CISG ANTECEDENTS

Match-up of CISG article 75 with ULIS provisions

     CISG Article 75                    ULIS Article 85 
                                            
If the contract is avoided and   If the buyer has bought goods 
if, in a reasonable manner and   in replacement or the seller 
within a reasonable time         has resold goods in a 
after avoidance, the buyer has   reasonable manner, he may 
bought goods in replacement      recover the difference 
or the seller has resold the     between the contract price 
goods, the party claiming        and the price paid for the 
damages may recover the          goods bought in replacement 
difference between the           or that obtained by the 
contract price and the price     resale. 
in the substitute transaction 
as well as any further damages 
recoverable under article 74. 
 
SEE ALSO: 
 
ULIS, Article 86.  The damages referred to in Articles 84 and 85 
may be increased by the amount of any reasonable expense 
incurred as a result of the breach or up to the amount of any 
loss, including loss of profit, which should have been foreseen 
by the party in breach, at the conclusion of the contract, in the 
light of the facts, and matters which were known or ought 
to have been known to him, as a possible consequence of the  
breach of the contract. 

Comments on the match-up

"Th[e] rule [in CISG Article 75] can be traced back to Article 85 ULIS. However, ULIS places abstract calculation of damages using the market price rule (Article 84) before concrete calculation of damages by reference to a substitute transaction (Article 85), whereas the Convention makes concrete calculation of damages the primary method and abstract calculation of damages using the market price rule is subsidiary to it (Article 76). That indicates the change in the relationship between the two rules. Moreover, Article 85 ULIS merely requires a substitute transaction to have been carried out ‘in a reasonable manner’, while the Convention adds by way of clarification that the substitute transaction must also have taken place ‘within a reasonable time after avoidance’. Finally, Article 75 adds that the party entitled to damages may claim ‘any further damages recoverable under Article 74’. This latter addition is not a substantial change, because under Article 86 ULIS the duty to pay damages is extended so as to include all further loss. . . ." Stoll in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 573 [citations omitted].