LEGISLATIVE HISTORY

CISG ANTECEDENTS

Match-up of CISG article 76 with ULIS/ULF provisions

     CISG Article 76                       ULIS Article 84 
                                               
1. If the contract is avoided     1. In case of avoidance of 
and there is a current price      the contract, where there is 
for the goods, the party          a current price for the goods, 
claiming damages may, if he       damages shall be equal to the 
has not made a purchase or        difference between the price 
resale under article 75,          fixed by the contract and the 
recover the difference            current price on the date on 
between the price fixed by        which the contract is avoided. 
the contract and the current 
price at the time of avoidance    2. In calculating the amount of 
as well as any further damages    damages under paragraph 1 of 
recoverable under article 74.     this Article, the current price 
If, however, the party claiming   to be taken into account shall 
damages has avoided the           be that prevailing in the market 
contract after taking over the    in which the transaction took 
goods, the current price at the   place or, if there is no such 
time of such taking over shall    current price or if its 
be applied instead of the         application is inappropriate, 
current price at the time of      the price in a market which 
avoidance.                        serves as a reasonable 
                                  substitute, making due allowance 
2. For the purpose of the         for differences in the cost of 
preceding paragraph, the          transporting the goods. 
current price is the price 
prevailing at the place  
where delivery of the goods 
should have been made or, 
if there is no current price 
at that place, the price at 
such other place as serves as 
a reasonable substitute, making 
due allowance for differences 
in the cost of transporting  
the goods. 
 
SEE ALSO: 
 
ULIS Article 87.  If there is no current price for the goods,
damages 
shall be calculated on the same basis as that provided in Article 82. 
 
ULIS Article 86.  The damages referred to in Articles 84 and 85 
may be increased by the amount of any reasonable expenses 
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 time of 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

"This provision corresponds to Article 84 ULIS, but differs from it in some important respects. ULIS treats abstract assessment of damages under the current price rule as having the same standing as concrete assessment of damages under Article 85 ULIS, so that the promisee is free to choose between those methods of assessment where the goods have a current price. . . . Article 76 clearly permit[s] calculation of damages under the current price rule only if the promisee has not yet concluded a substitute transaction. . . .

"Article 84 ULIS [sets abstract damages as] the current price on the day on which the contract was avoided. [CISG Article 76 applies a different formula]. . . . Article 84(2) ULIS provides that the current price to be taken into account is that prevailing the market in which the transaction took place, or, if this is inappropriate, the price in a market which serves as a reasonable substitute. The [CISG] made this rule more precise. . . ." Stoll in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 579-580 [citations omitted].