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Remedies for Non-performance - Perspectives from CISG, UNIDROIT Principles and PECL,
Liu Chengwei  * 

INTRODUCTION

[INTRODUCTION]

LIST OF ABBREVIATIONS

A. For Documents
B. For Journals
C. For Organizations
D. For Citations

PART I. GENERAL REVIEW

CHAPTER 1. SOURCES OF INSPIRATION

[CHAPTER 1. SOURCES OF INSPIRATION]

1.1 INTRODUCTION

1.2 OVERVIEW OF THE STUDIED INSTRUMENTS

1.2.1 CISG
1.2.2 UNIDROIT Principles
1.2.3 PECL
1.2.4 Brief Comparison

1.3 MAJOR SOURCES OF INFORMATION

CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE

[CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE]

2.1 INTRODUCTION

2.2 THE CONCEPTS: BREACH OF CONTRACT vs. NON-PERFORMANCE

2.3 REMEDIAL SCHEMES OF THE STUDIED INSTRUMENTS

2.3.1 CISG Part III (Partial)
2.3.2 UNIDROIT Principles Chapter 7
2.3.3 PECL Chapters 8, 9
2.3.4 Concluding Remarks

2.4 STRUCTURE OF THIS PRESENTATION

PART II. PRESERVING PERFORMANCE
PART III. TERMINATION
PART IV. DAMAGES
PART V. EXCUSES

PART II. PRESERVING PERFORMANCE

CHAPTER 3. SPECIFIC PERFORMANCE

[CHAPTER 3. SPECIFIC PERFORMANCE]

3.1 COMPRISED APPROACH UNDER THE CISG

3.1.1 Introduction
3.1.2 Primacy of Specific Performance under Arts. 46/62
3.1.3 Forum's Rule under Art. 28

3.2 BUYER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 46

3.2.1 Introduction
3.2.2 General Rule: Art. 46(1)
3.2.2.1 Right to require performance
3.2.2.2 Non-resorting to inconsistent remedies
3.2.3 Right to Demand Cure: Arts. 46(2) and 46(3)
3.2.3.1 In general
3.2.3.2 Delivery of substitute goods: Art. 46(2)
3.2.3.3 Right to repair: Art. 46(3)
3.2.3.4 Time limit restriction
3.2.3.5 A summary

3.3 SELLER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 62

3.3.1 Rationale of Art. 62
3.3.2 General Application
3.3.3 Potential Problems

3.4 UNIFORM REMEDY IN UNIDROIT PRINCIPLES / PECL

3.4.1 Introduction
3.4.2 Performance of Monetary Obligation
3.4.2.1 Money due generally recoverable
3.4.2.2 Money not yet due
3.4.3 Performance of Non-monetary Obligation: In General
3.4.4 Exceptions to Performance of Non-monetary Obligation
3.4.4.1 The principle and exceptions
3.4.4.2 Performance impossible
3.4.4.3 Unreasonable burden
3.4.4.4 Performance from another source available
3.4.4.5 Performance of an exclusively personal character
3.4.4.6 Unreasonable delay in requiring performance
3.4.5 Right to Require Remedying of Defective Performance
3.4.6 Other Issues

CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE

[CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE]

4.1 GENERAL CONSIDERATIONS

4.2 RATIONALE UNDERLYING THE OPTIONAL APPROACH

4.2.1 Optional Approach under the Studied Instruments
4.2.2 Underlying Rationale
4.2.3 Granting Additional Period in Two Situations

4.3 SETTING OF A NACHFRIST NOTICE

4.3.1 Transmission of the Intention
4.3.1.1 Form of the notice
4.3.1.2 Risk in transmission
4.3.2 Fixing of the Time-limit
4.3.2.1 Fixed period
4.3.2.2 Reasonable length

4.4 EFFECTS OF SERVING A NACHFRIST NOTICE

4.4.1 Remedies Available/Suspended during the Period
4.4.2 Early End of the Existing Uncertainty upon Rejecting Notice
4.4.3 Termination upon Expiry of the Extension
4.4.3.1 In general
4.4.3.2 CISG approach
4.4.3.3 UNIDROIT Principles / PECL approach

CHAPTER 5. CURE BY NON-PERFORMING PARTY

[CHAPTER 5. CURE BY NON-PERFORMING PARTY]

5.1 INTRODUCTION

5.2 CONDITIONS FOR INVOKING CURE

5.2.1 In General
5.2.2 Reasonableness of Notice
5.2.3 Appropriateness of Cure

5.3 SELLER'S RIGHT TO CURE AND BUYER'S RIGHT TO TERMINATION

5.4 EFFECTS OF EFFECTIVE NOTICE

5.4.1 Right to Inquire vs. Duty to Accept Cure
5.4.2 Suspension of Inconsistent Remedies
5.4.3 Retained Rights of the Aggrieved Party

CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY

[CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY]

6.1 GENERAL CONSIDERATIONS

6.2 FEATURES OF CISG ART. 50

6.2.1 Unique Role and Justification
6.2.2 Self-help Remedy
6.2.3 Seeming Advantages

6.3 IN CONTRAST WITH DAMAGES

6.3.1 Introduction
6.3.2 Distinctions from Damages under the CISG
6.3.2.1 Diverse ratio legis
6.3.2.2 Different manner in calculation
6.3.2.3 Other differences
6.3.2.4 A summary
6.3.3 An Alternative to Damages
6.3.3.1 Introduction
6.3.3.2 In conjunction with force majeure
6.3.3.3 In case of falling market
6.3.3.4 Upon difficulty in proving damages
6.3.3.5 A summary

6.4 ESSENTIALS OF CISG ART. 50

6.4.1 Scope of Application
6.4.1.1 General application in case of non-conformity
6.4.1.2 Ambiguity over defects in title
6.4.2 Exercise of the Right to Price Reduction
6.4.3 Calculation of Proportional Reduction
6.4.3.1 Decisive point: time of delivery
6.4.3.2 Place for comparing
6.4.4 Limited by the Cure

6.5 STATUS OF THE PRICE REDUCTION UNDER UNIDROIT PRINCIPLES / PECL

6.5.1 Exclusion under the UNIDROIT Principles
6.5.2 Inclusion under the European Principles

PART III. TERMINATION

CHAPTER 7. RIGHT TO TERMINATION

[CHAPTER 7. RIGHT TO TERMINATION]

7.1 GENERAL CONSIDERATIONS

7.2 GROUNDS FOR TERMINATION

7.3 CONCLUDING REMARKS

CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE

[CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE]

8.1 GENERAL CONSIDERATIONS

8.2 FORESEEABLE SUBSTANTIAL DETRIMENT

8.2.1 Introduction
8.2.2 Substantial Detriment
8.2.2.1 Existing detriment
8.2.2.2 Substantial deprivation
8.2.2.3 Discernible expectations
8.2.3 Foreseeability
8.2.3.1 Introduction
8.2.3.2 Test for foreseeability
8.2.3.3 Time for foreseeability
8.2.3.4 Burden to prove unforeseeability

8.3 OTHER ELEMENTS IN DEFINING FUNDAMENTAL NON-PERFORMANCE

8.3.1 Strict Compliance of Essence
8.3.2 Intentional Non-performance
8.3.3 No Reliance on Future Performance
8.3.4 Disproportionate Loss

8.4 CONCLUDING REMARKS

CHAPTER 9. ANTICIPATORY NON-PERFORMANCE

[CHAPTER 9. ANTICIPATORY NON-PERFORMANCE]

9.1 GENERAL CONSIDERATIONS

9.2 GROUNDS FOR SUSPENSION

9.3 SELLER'S RIGHT TO STOP GOODS IN TRANSIT UPON SUSPENSION

9.4 DUTY TO GIVE NOTICE IN EXERCISING SUSPENSION

9.5 RESTORING PERFORMANCE BY GIVING ADEQUATE ASSURANCE

9.6 TERMINATION UPON ANTICIPATORY FUNDAMENTAL NON-PERFORMANCE

9.6.1 In General
9.6.2 Clear Indication of A Fundamental Non-performance
9.6.3 Notice Given in case of Termination

9.7 ADEQUATE ASSURANCE OF DUE PERFORMANCE

9.7.1 Purpose of Rule
9.7.2 Non-receipt of Adequate Assurance

9.8 CONCLUDING REMARKS

CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART

[CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART]

10.1 TERMINATION OF INSTALLMENT CONTRACTS: CISG ART. 73

10.2 TERMINATION OF FUTURE INSTALLMENTS: CISG ART. 73(2)

10.3 TERMINATION OF A CONTRACT AS A WHOLE: CISG ART. 73(3)

10.4 PARTIAL TERMINATIO: CISG ART. 51

10.5 COMBINED APPROACH: PECL ART. 9:302

10.6 CONCLLUDING REMARKS

CHAPTER 11. DECLARATION OF TERMINATION

[CHAPTER 11. DECLARATION OF TERMINATION]

11.1 NO AUTOMATIC TERMINATION

11.2 INFORMALITY OF THE NOTICE

11.3 TRANSMISSION OF THE INTENTION

11.4 RISK IN COMMUNICATION

11.4.1 CISG Approach
11.4.2 Receipt Principle under the UNIDROIT Principles
11.4.3 Combined Approach under the PECL

11.5 TIME LIMIT FOR THE DECLARATION: IN GENERAL

11.6 DECLARATION WITHIN REASONABLE TIME

11.6.1 Definition of reasonable time
11.6.2 CISG Approach
11.6.3 UNIDROIT Principles / PECL Approach
11.6.4 Concluding Remarks

CHAPTER 12. EFFECTS OF TERMINATION

[CHAPTER 12. EFFECTS OF TERMINATION]

12.1 INTRODUCTION

12.2 RELIEF OF FUTURE PERFORMANCE

12.3 RETROSPECTIVE OR PROSPECTIVE APPROACH

12.4 UNAFFECTED RIGHTS AND OBLIGATIONS AFTER TERMINATION

12.4.1 Continuing Right to Claim Damages
12.4.2 Unaffected Clauses Intended to Apply despite Termination

12.5 RESTITUTION

12.5.1 In General
12.5.2 Entitlement of Parties to Restitution on Termination
12.5.3 Restitution under the PECL
12.5.3.1 Property reduced in value: Art. 9:306
12.5.3.2 Recovery of money paid and property: Arts. 9:306, 9:307
12.5.3.3 Concluding remarks
12.5.4 Restitution of Benefits Received
12.5.5 Exceptions: Restitution Not Possible or Appropriate
12.5.5.1 CISG approach: making restitution a prerequisite for avoidance
12.5.5.2 UPICC/PECL approach: focusing on the allowance upon impossible restitution
12.5.5.3 Comparative perspectives
12.5.5.4 Concluding remarks

PART IV. DAMAGES

CHAPTER 13. GENERAL MEASURE OF DAMAGES

[CHAPTER 13. GENERAL MEASURE OF DAMAGES]

13.1 RIGHT TO DAMAGES

13.2 FULL COMPENSATION

13.3 RECOVERABLE LOSSES

13.4 COMPENSATION OF NON-PECUNIARY LOSS

13.5 COMPUTATION OF LOSSES AND GAINS

CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES

[CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES]

14.1 GENERAL CONSIDERATIONS

14.2 FORESEEABILITY OF LOSS

14.2.1 In General
14.2.2 Test for Foreseeability
14.2.3 Party Concerned and Reference Point
14.2.4 Evaluation of Foreseeability
14.2.5 Content of Foreseeability
14.2.6 Concluding Remarks

14.3 CERTAINTY OF HARM

14.4 CONTRIBUTION TO HARM

14.4.1 In General
14.4.2 Ways of Contributing to the Harm
14.4.3 Remedies Affected by the Contribution
14.4.3.1 Remedies available upon non-performance caused solely by the contribution
14.4.3.2 Damages proportionately reduced due to partial contribution

14.5 DUTY TO MITIGATE

14.5.1 In General
14.5.2 Reasonable Measures Taken
14.5.3 Effects of Failure to Mitigate

CHAPTER 15. DAMAGES UPON TERMINATION

[CHAPTER 15. DAMAGES UPON TERMINATION]

15.1 GENERAL CONSIDERATIONS

15.2 DAMAGES UPON SUBSTITUTE TRANSACTIONS

15.2.1 Introduction
15.2.2 Presupposed Situations Calling for Concrete Calculation
15.2.3 Substitute Transaction must be Reasonable Substitute

15.3 DAMAGES UPON CURRENT PRICE

15.3.1 Introduction
15.3.2 Presupposed Situations Calling for Abstract Calculation
15.3.3 Determination of "Current Price"
15.3.3.1 In general
15.3.3.2 Reference point
15.3.3.3 Relevant place

15.4 FURTHER DAMAGES

CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE

[CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE]

CHAPTER 17. RECOVERY OF ATTORNEYS' FEES

[CHAPTER 17. RECOVERY OF ATTORNEYS' FEES]

17.1 GENERAL CONSIDERATIONS

17.1.1 Introduction
17.1.2 Recoverability under "Loser-pays" Principle
17.1.3 Excluded by "American Rule"

17.2 CISG DECISIONS CONCERNING ATTORNEYS' FEES

17.3 PROBLEMATIC RECOVERY UNDER ART. 74 CISG

CHAPTER 18. PAYMENT OF INTEREST

[CHAPTER 18. PAYMENT OF INTEREST]

18.1 INTRODUCTION

18.2 GENERAL ENTITLEMENT TO INTEREST

18.3 ADDITIONAL DAMAGES

18.4 INTEREST ON DAMAGES

18.5 ACCRUAL OF INTEREST

18.6 RATE OF INTEREST

PART V. EXCUSES

CHAPTER 19. CHANGE OF CIRCUMSTANCES

[CHAPTER 19. CHANGE OF CIRCUMSTANCES]

19.1 INTRODUCTION

19.2 UNSDERLYING DOCTRINCE; REBUS SIC STANTIBUS

19.3 DIFFERENT APPROACHES TO CHANGED CIRCUMSTANCES

19.3.1 Historical Review
19.3.2 National Doctrines
19.3.3 International Perspective
19.3.3.1 Public international law
19.3.3.2 International commercial practice
19.3.4 Conclusion

19.4 DEFINITIONS OF force majeure AND HARDSHIP

19.4.1 Force Majeure
19.4.2 Hardship
19.4.3 Comparison

19.5 GENERAL APPROACHES IN THE STUDIED INSTRUMENTS

19.5.1 Approach under the CISG
19.5.2 Approach under the UNIDROIT Principles
19.5.3 Approach under the PECL
19.5.4 Concluding Remarks

CHAPTER 20. force majeure

[CHAPTER 20. force majeure]

20.1 INTRODUCTION

20.2 RELEVANT TEXTS

20.2.1 Exemptions: CISG Art. 79
20.2.2 Force Majeure: UNIDROIT Principles Art. 6.1.7
20.2.3 Excuse Due to an Impediment: PECL Art. 8:108
20.2.4 Comparison

20.3 GENERAL RULE

20.3.1 Scope of Excusable Non-performance
20.3.2 Existence of Qualifying Impediment
20.3.2.1 Introduction of a new word
20.3.2.2 Interpretation of the word
20.3.2.3 Problematic situations
20.3.3 Conditions for Exempting Impediment
20.3.3.1 Beyond control
20.3.3.2 Unforeseeable
20.3.3.3 Unavoidable or insurmountable
20.3.3.4 Causation

20.4 RESPONSIBILITY FOR THIRD PARTIES

20.5 TEMPORARY IMPEDIMENT

20.6 DUTY TO NOTIFY

20.7 EFFECTS

20.7.1 In General
20.7.2 Effect on Right to Damages
20.7.3 Effect on Right to Performance
20.7.4 Effect on Right to Termination

CHAPTER 21. HARDSHIP

[CHAPTER 21. HARDSHIP]

21.1 GAP IN THE CISG?

21.2 INTERPLAY BETWEEN CISG EXCUSE AND UNIDROIT PRINCIPLES / PECL HARDSHIP

21.2.1 Hardship: UNIDROIT Principles Arts. 6.2.1 through 6.2.3
21.2.2 Change of Circumstances: PECL Art. 6:111
21.2.3 Gap-filling Application of Hardship Provisions?

21.3 CONDITIONS FOR INVOKING HARDSHIP

21.3.1 In General
21.3.2 Crucial Point: Fundamental Alteration of Equilibrium
21.3.3 Additional Requirements for Hardship to Arise
21.3.3.1 Time factor: occurrence after conclusion
21.3.3.2 Unforeseeability
21.3.3.3 Risk not assumed

21.4 EFFECTS OF HARDSHIP

21.4.1 In General
21.4.2 Triggering of Renegotiation
21.4.2.1 Request for renegotiation
21.4.2.2 Renegotiation in good faith
21.4.3 Court Measures in case of Hardship
21.4.4 Concluding Remarks

CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES

[CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES]

22.1 GENERAL CONSIDERATIONS

22.2 FORCE MAJEURE CLAUSE

22.2.1 Introduction
22.2.2 Drafting Considerations

22.3 HARDSHIP CLAUSE

22.3.1 Introduction
22.3.2 Drafting Considerations

22.4 OVERLAPPING OF THE CLAUSES

22.5 USE OF STANDARD FORMS: ICC No. 421 (partial)

Endnotes

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Endnotes

 * LL.M. of Law School of Renmin University of China
P.O. Box 9-01 No. 1 (International Law) Law School of Renmin University of China 59 Zhongguancun Street, Beijing 100872, China
E-mail: ‹Genes@263.net

 1. See Rivkin, David R. in "Lex Mercatoria and Force majeure": Gaillard ed., Transnational Rules in International Commercial Arbitration (ICC Publ Nr. 480,4; Paris 1993); p. 163. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 116100. It is not questioned here that the majority of contracts in international business are still subject to a specific national law and the questions are left aside regarding the conditions under which a contract may be insulated from the application of any such law.

 2. See Alison E. Williams in "Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in the United Kingdom": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 9-57. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/williams.html

 3. Ibid.

 4. See Jussi Koskinen in "CISG, Specific Performance and Finnish Law": Publication of the Faculty of Law of the University of Turku, Private law publication series B:47 (1999). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koskinen1.html

 5. Few countries signed the treaties and there were many criticisms that the treaties "primarily reflected the legal traditions and economic realities of continental Western Europe".

 6. Supra. note 2.

 7. As of 10 October 2002, the UN Treaty Section reports that 62 States have adopted the CISG: Argentina, Australia, Austria, Belarus, Belgium, Bosnia-Herzegovina, Bulgaria, Burundi, Canada, Chile, China (PRC), Columbia, Croatia, Cuba, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Finland, France, Georgia, Germany, Greece, Guinea, Honduras, Hungary, Iceland, Iraq, Israel, Italy, Kyrgystan, Latvia, Lesotho, Lithuania, Luxembourg, Mauritania, Mexico, Moldova, Mongolia, Netherlands, New Zealand, Norway, Peru, Poland, Romania, Russian Federation, Saint Vincent & Grenadines, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syria, Uganda, Ukraine, United States, Uruguay, Uzbekistan, Yugoslavia, and Zambia. ( ‹http://www.cisg.law.pace.edu/cisg/countries/cntries.html› )

 8. See General Information on the Application of the CISG; available online at ‹http://cisgw3.law.pace.edu/cisg/cisgintro.html› In addition, there are situations in which principles of the CISG can be deemed applicable even when neither party has his relevant place of business in a Contracting State and the parties have made no reference to the CISG in their contract. There are cases in which tribunals have so held (see, for example, ICC Arbitration Case No. 5713 of 1989).

 9. The fruits of its efforts were the 1964 Hague Conventions. These Conventions, as mentioned previously, since entering into force in 1972, have, however, failed to achieve widespread acceptance. Other works of UNIDROIT have met with greater success; most notably in the area of international trade are the 1994 UNIDROIT Principles.

 10. See Joern Rimke in "Force majeure and hardship: Application in international trade practice with specific regard to the CISG and the UNIDROIT Principles of International Commercial Contracts": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); pp. 237-238. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/rimke.html

 11. See Michael Joachim Bonell in "General Report: A New Approach to International Commercial Contracts: The UNIDROIT Principles of International Commercial Contracts": XVth International Congress of Comparative Law, Bristol, 26 July-1 August 1998, Kluwer Law International (1999); p. 13.

 12. See Michael Joachim Bonell in "THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND CISG -- ALTERNATIVES OR COMPLEMENTARY INSTRUMENTS?": 26 Uniform Law Review (1996); pp. 26-39. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/ulr96.html

 13. See Ulrich Magnus in "Die allgemeinen Grundsätze im UN-Kaufrecht": 59 Rabels Zeitschrift (1995); pp. 492-493. English version: General Principles of UN-Sales Law, Lisa Haberfellner, trans. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/magnus.html

 14. See Albert H. Kritzer in "General observations on use of the UNIDROIT Principles to help interpret the CISG". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/general-observations.html

 15. Supra. note 13.

 16. Supra. note 4.

 17. See Austrian Arbitral Proceeding SCH-4318 and Arbitral Proceeding SCH-4366 (both dated 15 June 1994); see also ICC Arbitral Award No. 8128 of 1995 and the ruling of the French Court of Appeal of Grenoble 23 October 1996, examples of cases in which tribunals have referred to the UNIDROIT Principles as it helped them reason through the CISG. One can anticipate many such references to the UNIDROIT Principles in CISG proceedings. (Supra. note 14.)

 18. See Michael Joachim Bonell in "Unification of Law by Non-Legislative Means: The UNIDROIT Principles for International Commercial Contracts", 40 Am. J. Intl L. (1992); p. 618.

 19. See Peter A. Piliounis in "The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist) under the CISG: Are these worthwhile changes or additions to English Sales Law?"(1999). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/piliounis.html

 20. Supra. note 2.

 21. Nonetheless, the parties have the general right to derogate from or modify any of the provisions in the CISG (subject to Art. 12) and they may even make the decision to exclude the CISG in its entirety. This need not be done explicitly. One example of implicit exclusion of the CISG is the choice of the law of a non-contracting state. The crucial factor is to be able to determine the will of the parties and in determining this will, Art. 8 is applicable.

 22. See Bernard Audit in "The Vienna Sales Convention and the Lex Mercatoria": Thomas E. Carbonneau ed., Lex Mercatoria and Arbitration, rev. ed. [reprint of a chapter of the 1990 edition of this text], Juris Publishing (1998); p. 194. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/audit.html› While compromises were made on all fronts, and all Contracting States will notice distinctions between their domestic law and that of the CISG, the common lawyer as opposed to the civil lawyer will face greater obstacles in understanding and applying the CISG. As compared to those schooled in the common law, the majority of the drafters had been trained in civil law. Thus, it is not surprising to find that the CISG is highly reflective of civil law principles. (See Erika Sondahl in "Understanding the Remedy of Price Reduction - A Means to Fostering a More Uniform Application of the United Nations Convention on Contracts for the International Sale of Goods" (2003); available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sondahl.html)

 23. Supra. note 19.

 24. While the UNIDROIT Principles are designed only for international commercial contracts, they are in no way intended to take over the distinction traditionally made in some legal systems between "civil" and "commercial" parties and/or transactions, i.e. to make the application of the Principles dependent on whether the parties have the formal status of "merchants" (commerçants, Kaufleute) and/or the transaction is commercial in nature. The idea is rather that of excluding from the scope of the Principles so-called "consumer transactions" which are within the various legal systems being increasingly subjected to special rules, mostly of a mandatory character, aimed at protecting the consumer, i.e. a party who enters into the contract otherwise than in the course of its trade or profession. The criteria adopted at both national and international level also vary with respect to the distinction between consumer and non-consumer contracts. The Principles do not provide any express definition, but the assumption is that the concept of "commercial" contracts should be understood in the broadest possible sense, so as to include not only trade transactions for the supply or exchange of goods or services, but also other types of economic transactions, such as investment and/or concession agreements, contracts for professional services, etc. (See Comment 2 on the Preambles of the UPICC.)

 25. Notably, it is also said that the Convention itself purports to formulate the most common practice and therefore qualifies as an expression of lex mercatoria". (See Bernard Audit, supra. note 22.)

 26. See Barry Nicholas in "Force Majeure and Frustration": 27 American Journal of Comparative Law (1979); pp. 231-245. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/nicholas.html

 27. See Michael Joachim Bonell, AN INSTERNATIONAL RESTATEMENT OF CONTRACT LAW: The UNIDROIT Principles of International Commercial Contracts, 2nd ed., Transnational Publishers (1997); p. 44.

 28. The source of the Commentary to the PECL is Ole Lando & Hugh Beale eds., Principles of European Contract Law: Parts I and II, Kluwer Law International (2000).

 29. The purpose of the system is to promote international awareness of the legal texts formulated by the UNCITRAL and to facilitate uniform interpretation and application of those texts. Currently, CLOUT covers the Convention on the Limitation Period in the International Sale of Goods (New York, 1974), as amended by the Protocol of 1980, the CISG, the UNCITRAL Model Law on International Commercial Arbitration (1985), and the United Nations Convention on the Carriage of Goods by Sea, 1978 (the "Hamburg Rules").

 30. See E. Allan Farnsworth in "Damages and Specific Relief": 27 American Journal of Comparative Law(1979); pp. 247-253. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/farns.html›.

 31. See Jussi Koskinen in "CISG, Specific Performance and Finnish Law": Publication of the Faculty of Law of the University of Turku, Private law publication series B:47 (1999). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koskinen1.html

 32. See Maskow, Dietrich in "Hardship and Force Majeure": 40 Am.J.Comp.L. (1992); p. 657. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 126400.

 33. See Survey of the International Sale of Goods 3, L. Lafili, et al. eds., (1986); p. 14.

 34. For instance, German law and some legal systems inspired by it (such as Austrian and Swiss law) do not use a unitary approach. Instead they distinguish between the various causes of breach, especially between impossibility of performance, delay, and all other instances of breach; in addition, following Roman traditions, defects of individual goods are dealt with on a special basis. This system of splitting up breach of contract into several more or less separate institutions has proved to be quite inadequate in many respects because it gives rise to difficult problems of delimitation. However, under the impact of comparative law and the unification of sales law there is now a strong tendency in German academic writings to adopt the unitary approach.

 35. See Ulrich Drobnig in "General Principles of European Contract Law": Petar Sarcevic & Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1986); p. 318. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/drobnig.html

 36. See Fritz Enderlein in "Rights and Obligations of the Seller Under the U.N. Convention on Contracts for the International Sales of Goods": Sarcevic & Volken eds., Dubrovinik Lectures (1986); p. 188. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein1.html

 37. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 318, 320, 336. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 38. See Comment on Art. 7.1.1 UPICC.

 39. See Comment and Notes to the PECL: Art. 8:101. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp45.html

 40. Supra. note 6.

 41. Supra. note 2.

 42. See Nayiri Boghossian in "A Comparative Study of Specific Performance Provisions in the United Nations Convention on Contracts for the International Sale of Goods": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 15. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/boghossian.html

 43. See Robert Koch in "The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999); p. 297. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koch.html

 44. Supra. note 13, p. 10. In general, the CISG has features that are familiar from both of the two major legal systems, i.e. civil and common law systems. However, on the other hand, the CISG is an international convention which reflects the compromise between civil law and common law aspects; and it has therefore not been possible to achieve a totally uniform scheme of remedies compared with different domestic legal systems. The range of remedies is more comprehensive than what is available under common law and some of these remedies are even foreign to common law.

 45. Supra. note 2.

 46. Ibid.

 47. Under the Convention, apart from the damages remedy, avoidance and substitute delivery are only available when a fundamental breach occurs.

 48. In a broad way, remedies for breach of contract in sales law can be broken into two main categories: one where the contract can be terminated or avoided by the parties, the other where the remedy is granted while the contract remains in force. Since parties will typically expect their contracts to be performed or at least stay in effect, the primary emphasis should be on the remedies that operate without having to avoid the contract. (See Peter A. Piliounis in "The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist) under the CISG: Are these worthwhile changes or additions to English Sales Law?"(1999). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/piliounis.html)

 49. See Arthur Rosett in "UNIDROIT Principles and Harmonization of International Commercial Law: Focus on Chapter Seven". Available online at ‹http://www.unidroit.org/english/publications/review/articles/1997-3.htm› .

 50. Supra. note 10, Comment B.

 51. See Ole Lando in "Salient Features of the Principles of European Contract Law: A Comparison with the UCC": 13 Pace International Law Review (Fall 2001); p. 360. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/lando.html

 52. Supra. note 2.

 53. One such example would be if the parties operating under the CISG specifically agreed that the only available remedy was specific performance. Under English law, e.g., specific performance is a discretionary remedy. While it is unlikely that the parties would agree to such a remedy, there would be no conflict between the agreement for specific performance and Art. 46 of the CISG. On the other hand, an English court applying general legal principles would be unlikely to grant specific performance where the court did not consider that the situation merited the exercise of discretion in favour of specific performance. A more likely issue is the question of the quantum of damages agreed by the parties. Under the CISG, there is no limit on the amount of compensation that may be agreed to be paid upon breach of a contract. In contrast, English common law draws a distinction between genuine pre-estimates of damage (referred to as "liquidated damages") versus clauses viewed as punitive or penal. Penalty clauses are considered invalid and will not be enforced by an English court. So while the parties are generally free to choose their own remedies, English law will not enforce all of the remedies, at least not to the same degree. (Supra. note 19.)

 54. This principle is subject to two exceptions under the CISG. First, substitute delivery and reduction in price are only available in case of the delivery of non-conforming goods. It is disputed whether goods, which are not free of third-party rights (in the sense of Arts. 41 and 42), can be considered non-conforming. Secondly, in cases of non-delivery and non-payment or failure to take delivery, the buyer's or the seller's right of avoidance, respectively, is subject to a "Nachfrist-type procedure," which allows avoidance only after having fixed a reasonable length of time for the defaulting party to remedy his non-performance (Art. 49(1)(b) / 64(1)(b)). (Supra. note 14, p. 298.)

 55. Supra. note 21.

 56. See Nayiri Boghossian in "A Comparative Study of Specific Performance Provisions in the United Nations Convention on Contracts for the International Sale of Goods": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 6. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/boghossian.html

 57. See Ole Lando in "Salient features of European contract law": Study of the systems of private law in the EU with regard to discrimination and the creation of a European Civil Code; European Parliament, Directorate General for Research, Working Paper, Legal Affairs Series, JURI 103 EN (June 1999); p. 6. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/lando1.html

 58. Supra. note 1.

 59. See Vivian Grosswald Curran in "CROSS REFERENCTE AND EDITORIAL ANALYSIS: Article 46". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/cross/cross-46.html

 60. See Amy H. Kastely in "The Right to Require Performance in International Sales: Towards an International Interpretation of the Vienna Convention": 63 Washington Law Review(1988); pp. 614-616. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/kastely1.html

 61. See Secretariat Commentary on Art. 42 of the 1978 Draft [draft counterpart of CISG Art. 46], Comment 8. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-46.html› ; Secretariat Commentary on Art. 58 of the 1978 Draft [draft counterpart of CISG Art. 62], Comment 5. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-62.html

 62. See Secretariat Commentary on Art. 26 of the 1978 Draft [draft counterpart of CISG Art. 28], Comment 4. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-28.html› One should note, however, that the Secretariat Commentary on 1978 Draft Art. 26 is of limited utility as an aid to the interpretation of CISG Art. 28. (See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-28.html)

 63. For instance, according to Art. 32(2) (If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation), if the contract calls for the seller to arrange for shipment, the seller would breach by failing to do so. Failure to arrange for shipment could result in the goods not being marked or otherwise identified. Not arranging for shipment is presumably a breach of one of the seller's obligations under the contract. Since the seller has breached one of "his obligations", the buyer may be awarded specific relief according to Art. 46(1) in the form of an order for the seller to arrange for carriage. The order could be issued without the goods being marked for shipment or otherwise identified to the contract. In fact, the order would require the goods to be identified.

 64. The drafting history clearly supports this conclusion. The UNCITRAL Working Group began drafting the CISG's provisions by consulting the 1964 Hague Conventions: ULIS and the ULF. Art. 25 of the ULIS precluded an injured buyer from requiring performance of the seller "if it is in conformity with usage and reasonably possible for the buyer to purchase goods to replace those to which the contract relates." A UNCITRAL Special Working Group's proposed version of what is now Art. 46 retained this language. However, the UNCITRAL Committee rejected this version of the article. The Committee noted that the proposal would "unjustifiably restrict" the buyer's right to require contract performance. In response to the 1978 draft of the CISG, the United States delegate proposed that the pertinent language be reincorporated into what is now Art. 46. The suggestion was repeated by the same delegate at the 1980 Vienna Diplomatic Conference. This proposal was also rejected. Hence, neither Art. 46 nor Art. 62 requires the unavailability of cover or resale as a prerequisite for ordering specific relief. (Infra. note 10, p. 215.)

 65. See Steven Walt in "For Specific Performance Under the United Nations Sales Convention": 26 Tex. Int'l L. J. (1991); p. 216. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/walt.html

 66. Ibid., p. 217.

 67. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); p. 62. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-28.html

 68. Supra. note 1, pp. 27-37.

 69. See Jussi Koskinen in "CISG, Specific Performance and Finnish Law": Publication of the Faculty of Law of the University of Turku, Private law publication series B:47 (1999). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koskinen1.html

 70. See Peter Schlechtriem in "Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany": Juridisk Tidskrift (1991/92); pp. 1-28. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/schlechtriem28.html

 71. In this respect, Bonell states: "Article 28 by its very nature does not seem capable of being derogated from by the parties" (See Bonell, Commentary on the International Sales Law: The 1980 Vienna Sale Convention, Cesare Massimo Bianca and Michael Joachim Bonell eds. (1987); p. 62. [hereinafter Bianca and Bonell]) Lando states as follows: "Even if the parties have expressly agreed that the contract must be performed specifically, a court may refuse to order specific performance of the contract. In this respect Article 28 is inconsistent with Article 6 which permits the parties to derogate from or vary the effect of any of the provision of the Convention." (See Lando in Bianca and Bonell, p. 239)

 72. Supra. note 14.

 73. See John Fitzgerald in "CISG, Specific Performance, and the Civil Law of Louisiana and Quebec": 16 Journal of Law and Commerce(1997); pp. 291-313. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/1fitz.html

 74. Ibid.

 75. For instance, an international sale where the goods are locally scarce is a convincing case for specific performance. A seller would have a strong argument for specific performance when the goods have been shipped to a foreign port where the seller is not likely to have any facilities set up for reselling the goods. The expectation of the parties may be that specific performance would be granted because of the prevalence of specific performance in several legal systems worldwide.

 76. The match-up indicates that paras. (1) and (2) of Art. 42 of the 1978 Draft and CISG Art. 46 are substantively identical. A para. (3) was added to the Official Text at the 1980 Vienna Diplomatic Conference. To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. (See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-46.html)

 77. Supra. note 6, Comment 1 on Art. 42 of the 1978 Draft.

 78. Supra. note 18.

 79. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 177. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 80. Supra. note 14.

 81. Supra. note 18.

 82. Supra. note 6, Comment 2 on Art. 42 of the 1978 Draft.

 83. Supra. note 14.

 84. Supra. note 24, p. 178.

 85. See Mirghasem Jafarzadeh in "Buyer's Right to Specific Performance: A Comparative Study Under English Law, the Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law" (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh.html

 86. However, it is also said that a requirement of price reduction does not necessarily have to be an inconsistent remedy with a requirement to perform, pursuant to some, a price reduction could be seen as a compensation (damages) for a failure in delivery.

 87. Supra. note 14.

 88. Supra. note 29.

 89. Supra. note 10, p. 214. One should note, however, although the requirement is expressly provided under para. (1) of Art. 46, it seems that the buyer's right to resort to the remedies under paras. (2) and (3) of this Article should also be subject to the same requirement; the buyer will not be entitled to require the seller to deliver replacement goods or repair defects in the goods where he has already resorted to an inconsistent remedy. (Supra. note 30)

 90. Supra. note 6, Comment 11 on Art. 42 of the 1978 Draft.

 91. See Siegfried Eiselen in "A Comparison of the Remedies for Breach of Contract under the CISG and South African Law": Basedow et al. eds, Aufbruch nach Europa - 75 jahre Max-Planck-Institut für Privatrecht, Mohr Siebeck: Tübingen (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/eiselen2.html

 92. Art. 35 CISG reads as follows:
"(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.
(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:
(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;
(c) possess the qualities of goods, which the seller has held out to the buyer as a sample or model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods. (3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity."

 93. Supra. note 29.

 94. Supra. note 14.

 95. Supra. note 30.

 96. Supra. note 14.

 97. Ibid.

 98. Supra. note 30.

 99. Supra. note 24, p. 179.

 100. Supra. note 1, p. 20.

 101. Equally, even if the buyer is not allowed to require delivery of substitute goods, the seller may deliver such goods if this is more favourable to him unless such substitution of goods is an unreasonable inconvenience to the buyer.

 102. Supra. note 14.

 103. Art. 82(1) CISG provides that, subject to three exceptions set forth in Art. 82(2), "the buyer loses his right . . . to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them".

 104. Supra. note 14.

 105. Ibid.

 106. Supra. note 30.

 107. Supra. note 24, pp. 180-181.

 108. Supra. note 14.

 109. Supra. note 24, p. 181.

 110. Supra. note 14.

 111. Supra. note 1, pp. 21-22.

 112. Supra. note 30.

 113. Supra. note 24, p. 180.

 114. Supra. note 30.

 115. Supra. note 18. Also, the requirement in Art. 46(3) that repair be reasonable in the circumstances may operate to prevent inconsistent remedies; if the buyer declares the contract avoided, it would seem more unreasonable for the seller who relied on the avoidance to be expected to repair after taking the usual steps attending avoidance (such as resale or taking back the goods). Despite this, the reference to reasonableness in Art. 46(3) recognizes mainly practical difficulty in repair, i.e., expense.

 116. Supra. note 58.

 117. Supra. note 18.

 118. Supra. note 1, p. 24, 25.

 119. See Peter A. Piliounis in "The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist) under the CISG: Are these worthwhile changes or additions to English Sales Law? ": 12 Pace International Law Review (Spring 2000); pp. 1-46. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/piliounis.html

 120. See Knapp in Bianca and Bonell, supra. note 16, p. 453.

 121. See G.H. Treitel in "Specific Performance in the Sale of Goods": J.B.L. 211(1966); p. 230.

 122. Fitzgerald even believes that the only inconsistent remedy available to the seller is avoidance under Art. 64. (Supra. note 18.)

 123. See Leif Sevón in "Obligations of the Buyer under the UN Convention on Contracts for the International Sale of Goods": Petar Sarcevic and Paul Volken eds. International Sale of Goods: Dubrovnik Lectures, Oceana (1986); p. 233. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sevon1.html

 124. Supra. note 65, p. 451, 454.

 125. Supra. note 24, p. 236.

 126. Supra. note 68, p. 223.

 127. Supra. note 68.

 128. Supra. note 1, p. 25.

 129. In this point Knapp states that: "... the seller, whether or not he has declared the contract avoided, is under no obligation to try to resell the goods before resorting to remedies for failure to perform the contract by the buyer" and elaborates further that the seller is "... not authorized to resell the goods before declaring the contract avoided." (Supra. note 65, p. 452)

 130. See John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (2d ed. 1991); p. 439.

 131. Supra. note 24, pp. 235-236.

 132. Koskinen states in this point: "A buyer and a seller must have the right to rely upon the contract and that the other party keeps his word. Therefore, if specific performance is the primary remedy for breach of contract, there are strong reasons for believing that more mutually beneficial exchanges of promises will be concluded in the future and that they will be exchanged at a lower cost than under any other contractual remedy. Furthermore, under specific performance post breach adjustments to all contracts will be resolved in a manner most likely to lead to the promise being concluded in favor of the party who puts the highest value on the completed performance and at a lower cost than under any alternative. The existence of a specific performance rule tends to have the effect that the parties to a contract perform their obligations under the contract, rather than start to speculate on any alternatives." (Supra. note 14)

 133. See Comment and Notes to the PECL: Art. 9:101. Note 1. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp62.html

 134. Ibid., Comment A.

 135. See Comment on Art. 7.2.1 UPICC.

 136. Supra. note 78, Comment B.

 137. Supra. note 78, Comment B(i).

 138. Supra. note 78, Note 2.

 139. Supra. note 78, Comment B(ii).

 140. Supra. note 80.

 141. Supra. note 78, Comment B(iii).

 142. Supra. note 78, Note 3.

 143. Supra. note 78, Comment B(iv).

 144. Supra. note 78, Comment B(v).

 145. See Comment 1 on Art. 7.2.2 UPICC.

 146. See Comment and Notes to the PECL: Art. 9:102. Note 1. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp62.html

 147. Ibid., Note 2.

 148. Supra. note 2, p. 7.

 149. Supra. note 90.

 150. Supra. note 91, Comment A.

 151. Supra. note 80.

 152. Supra. note 91, Comment B.

 153. See Comment 2 on Art. 7.2.2 UPICC.

 154. Supra. note 91, Comment D. However, rules on the means and the procedure of enforcement of a judgment for performance must be left to the national legal systems. (Supra. note 95.)

 155. Supra. note 97.

 156. Supra. note 93.

 157. Supra. note 91, Comment E.

 158. See Comment 3(a) on Art. 7.2.2 UPICC.

 159. Supra. note 102.

 160. Supra. note 103.

 161. Supra. note 91, Note 3(c).

 162. Supra. note 91, Comment F.

 163. See Comment 3(b) on Art. 7.2.2 UPICC.

 164. Ibid.

 165. See Comment 3(c) on Art. 7.2.2 UPICC.

 166. Supra. note 91, Note 3(e).

 167. Supra. note 91, Comment H.

 168. Ibid.

 169. Supra. note 110.

 170. Supra. note 112.

 171. Supra. note 91, Comment G.

 172. See Comment 3(d) on Art. 7.2.2 UPICC.

 173. Ibid.

 174. Supra. note 116.

 175. Supra. note 91, Note 4.

 176. See Comment 3(e) on Art. 7.2.2 UPICC.

 177. Supra. note 91, Comment I.

 178. See Comment 1 on Art. 7.2.3 UPICC.

 179. Supra. note 91, Comment C.

 180. Ibid.

 181. See Comment 2 on Art. 7.2.3 UPICC.

 182. Supra. note 124.

 183. See Comment 3 on Art. 7.2.3 UPICC.

 184. See Comment 1 on Art. 7.2.5 UPICC.

 185. Supra. note 107.

 186. See Comment 2 on Art. 7.2.5 UPICC. See also the discussion attached to supra. note 32.

 187. See Comment 3 on Art. 7.2.5 UPICC.

 188. See Comment 4 on Art. 7.2.5 UPICC.

 189. It is recommended to refer to the Official Comments on Art. 7.2.4 UPICC.

 190. See Comment on Art. 7.1.5 UPICC.

 191. See Bruno Zeller in "Buyer's notice fixing additional final period for performance: Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Articles 47 and 49(1)(b) CISG". (2001) Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp47.html#er› ; also in "Seller's notice fixing additional final period for performance: Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Articles 63 and 64(1)(b) CISG". (2001) Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp63.html#er› .

 192. See Alison E. Williams in "Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in the United Kingdom": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 9-57. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/williams.html

 193. Ibid.

 194. Supra. note 2.

 195. Ibid.

 196. Providing an automatic extension of time for the parties to a commercial contract to fulfill their obligations is mandated under German law. Such automatic extension, and its mechanics, is known in German as Nachfrist. The Nachfrist obligation is articulated in Section 326 of the German Civil Code (Bürgerliches Gesetzbuch("BGB")) Loosely translated, the Section reads in English as, "The Creditor must, as a general rule, reasonably extend the original term for performance unless such contractual performance is of no further interest to the Creditor due to delay or unless the final deadline is apparently, for some other reason, superfluous. When the grace period has elapsed without completion of the contractual obligation, the Creditor may choose between damages for non-performance and avoidance of the contract. A claim for performance is, however, excluded." (See Maryellen DiPalma in "Nachfrist under National Law, the CISG, and the UNIDROIT and European Principles: A Comparison": International Contract Adviser (Kluwer), Vol. 5, No. 1 (Winter 1999); pp. 28-38. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/DiPalma.html)› In view of the significant differences as regards the function of the Nachfrist, it is therefore submitted that Section 326 of the BGB may, at the very most, have served as an inspiration not a model provision for the international rules. (See Anette Gärtner in "Britain and the CISG: The Case for Ratification - A Comparative Analysis with Special Reference to German Law": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 59-81. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/gartner.html)

 197. See Knapp, Commentary on the International Sales Law: The 1980 Vienna Sale Convention, Cesare Massimo Bianca and Michael Joachim Bonell eds. (1987) [hereinafter Bianca and Bonell]; p. 460.

 198. See Secretariat Commentary on Art. 43 of the 1978 Draft [draft counterpart of CISG Art. 47], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-47.html› ; Secretariat Commentary on Art. 59 of the 1978 Draft [draft counterpart of CISG Art. 63], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-63.html› (The match-ups indicate: CISG Art. 47 is identical to 1978 Draft Art. 43 except for a reference to "delay in performance" rather than "delay in the performance": see the match-up available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-47.html› ; CISG Art. 63 is identical to 1978 Draft Art. 59 except for the concluding reference to "delay in performance" rather than "delay in the performance": see the match-up available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-63.html› The Secretariat Commentary on 1978 Draft Arts. 43, 59 should therefore be relevant to the interpretation of CISG Arts. 47, 63.)

 199. See Comment 1 on Art. 7.1.5 UPICC.

 200. In the case of fixed-time contracts, the date of delivery may be so essential to the buyer that non-compliance with it may constitute a fundamental breach of contract. (See Enderlein and Maskow, infra. note 26, p. 137.)

 201. Supra. note 10.

 202. By contrast, Section 326 of the BGB does not have anything to do with reducing the risk of wrongful termination or securing the right to avoidance. Partly, this is due to the fact that, unlike the three instruments, the BGB does not differentiate between simple and fundamental breaches of contract. More importantly, according to German law, the right to terminate a contract only arises in a rather limited number of situations. Whereas the three instruments allow the creditor to avoid the contract for any fundamental breach, the BGB starts from the notion that, in principle, a contract may only be unilaterally terminated if the agreement provides for a contractual right to avoidance. As one of the exceptions to this general rule, this provision under German law, instead, in many cases, enables the aggrieved party to declare the contract avoided.

 203. The first situation, the case of the aggrieved party who indicates that he will still accept tender of performance or the cure of a defective performance but then changes his mind, gives rise to little problem in systems such as the FRENCH or SPANISH where a court order is needed for termination (French CC art. 1184(3); Spanish CC art. 1124(3)): instead of terminating the contract at once the court can simply grant a further delay for performance. Systems such as the COMMON LAW which allow termination by simple notice without prior warning have often developed rules to prevent a sudden change of mind by the aggrieved party; e.g. the Common law rule that if the aggrieved party has "waived" his right to terminate for the time being he can only withdraw the waiver by giving reasonable notice: Charles Rickards Ltd v. Oppenhaim [1950] 1 K.B. 616 (C.A.). CIVIL LAW systems also recognise that the aggrieved party should not be allowed to terminate during the period in which he indicated that he would still accept performance: e.g. AUSTRIAN law, e.g. OGH 21 December 1987, SZ 60/287; 12.3.1991 JBI 1992, 318; FINNISH and SWEDISH Sale of Goods Acts, 25(3), 54(3) and 55(3); GREEK law (Michaelides Nouaros Erm.AK vol.II/1 art. 383 nos. 17-18 (1949). The aggrieved party may also be barred from seeking performance in natura, as, for example, in ITALIAN law (cc art. 1454(3)). It is often recognised that the aggrieved party may resort to termination immediately, however, if the other party indicates that he will not perform within the time allowed. (Infra. note 15, Note 1.)

 204. See Comment and Notes to the PECL: Art. 8:106. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp47.html

 205. Ibid., Comment B.

 206. Supra. note 15, Comment C.

 207. Ibid.

 208. See Comment 1 on Art. 1.9 UPICC.

 209. See Comment and Notes to the PECL: Art. 1:303. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp27.html

 210. See Comment 2 on Art. 1.9 UPICC.

 211. See Comment 4 on Art. 1.9 UPICC.

 212. Supra. note 20, Comment D.

 213. Supra. note 9, Comments 7 on Draft Art. 43 and 59.

 214. Supra. note 15, Comment D.

 215. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 238. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 216. Supra. note 2.

 217. Supra. note 26, p. 182.

 218. Supra. note 26, pp. 238-239.

 219. Supra. note 26.

 220. Supra. note 15, Comment E.

 221. In this point, since it is usually advised an inclusion of an arbitration clause in international commercial contracts and it is expressly provided that the "court" "includes an arbitral tribunal" under UPICC Art. 1.10 or PECL Art. 1:301, one can assume that the appropriate length of time can be determined by an arbitrator as well.

 222. Supra. note 25.

 223. See Comment 2 on Art. 7.1.5 UPICC.

 224. Supra. note 26, p. 183.

 225. Supra. note 26, p. 240.

 226. Supra. note 26, pp. 183-184.

 227. Supra. note 15.

 228. Supra. note 26, p. 184.

 229. Supra. note 26, pp. 241-242.

 230. Supra. note 9, Comments 9, 10 on Draft 43 and 59.

 231. See Harry M. Flechtner in "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.": 8 Journal of Law and Commerce(1988) 53-108. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/flecht47,63.html

 232. Supra. note 26, p. 193. Enderlein and Maskow note that it would seem reasonable to apply this rule analogously to the expiry of a Nachfrist where there was no performance, in the case of curing a non-conformity. But this was rejected repeatedly and for good reasons at the diplomatic conference.

 233. For example, in the case of defective goods, if the contract is breached, the Buyer may compel performance and set an additional time for performance. On the expiration of that period, the Buyer must again decide whether to avoid the contract or not, and this decision will still depend on whether the breach is fundamental. The only change in the situation is that the Buyer once again has the possibility of giving a notice of avoidance within a "reasonable time" to the Seller. (Supra. note 3.)

 234. Supra. note 42.

 235. Supra. note 26, p. 245.

 236. In this point, Schlechtriem submits it is a consequence of the expiry of time limits and not of the setting of a Nachfrist, that a delay during the Nachfrist can turn the original delay into a fundamental breach. Enderlein and Maskow submit differently: We believe that it is an academic dispute to find out whether it is the setting of a Nachfrist in itself during which there is no performance of obligations, or the expiry of the time limit which turns the breach of contract into a fundamental one. (Supra. note 43.)

 237. See Secretariat Commentary on Art. 60 of the 1978 Draft [draft counterpart of CISG article 64], Comment 7. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-64.html

 238. Supra. note 46.

 239. See Comment 2 on Art. 7.1.5 UPICC.

 240. Supra. note 25.

 241. Supra. note 15, Comment F.

 242. See Peter A. Piliounis in "The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist) under the CISG: Are these worthwhile changes or additions to English Sales Law?"(1999). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/piliounis.html

 243. See Comment 1 on Art. 7.1.4 UPICC.

 244. Ibid.

 245. See Alison E. Williams in "Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in the United Kingdom": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 9-57. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/williams.html

 246. Art. 34 CISG reads: "If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention." Art. 37 reads: "If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention."

 247. See Anette Gärtner in "Britain and the CISG: The Case for Ratification - A Comparative Analysis with Special Reference to German Law": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 59-81. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/gartner.html

 248. See Fritz Enderlein in "Rights and Obligations of the Seller under the UN Convention on Contracts for the International Sale of Goods": Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1996); pp. 163-164. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein1.html

 249. See A/Conf. 97/C.1/L.140 (= O.R. 114) (the motion); A/Conf. 97/C.1/L.160 (= O.R. 114) (Bulgarian motion to the same effect); A/Conf. 97/C.1/SR.20 at 6 et seq. (= O.R. 340 et seq.).

 250. See Comment and Notes to the PECL: Art. 8:104. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp48.html

 251. Ibid.

 252. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); p. 78. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-48.html

 253. Supra. note 5.

 254. The match-up with Art. 48 CISG indicates that paras. (2) and (4) of CISG Art. 48 and 1978 Draft Art. 44 are identical; para. (3) is substantively identical (the only difference being a substitution of "under the preceding paragraph" for "under paragraph (2) of this article"). The Secretariat Commentary on 1978 Draft Art. 44(2), (3) and (4) should therefore be relevant to the interpretation of CISG Art. 48(2), (3) and (4). Para. (1) was modified at the 1980 Vienna Diplomatic Conference. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-48.html

 255. See Secretariat Commentary on Art. 44 of the 1978 Draft [draft counterpart of CISG Art. 48], Comment 13. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-48.html

 256. See Comment 2 on Art. 7.1.4 UPICC.

 257. Ibid.

 258. Supra. note 13, Comment 6.

 259. Supra. note 13, Comment 7.

 260. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 186. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 261. Supra. note 14.

 262. Supra. note 13, Comment 14.

 263. Supra. note 14.

 264. See Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 2d ed, Kluwer (1991); p. 314.

 265. See Comment 3 on Art. 7.1.4 UPICC.

 266. See Comment 5 on Art. 7.1.4 UPICC.

 267. See Comment 6 on Art. 7.1.4 UPICC.

 268. See Comment 4 on Art. 7.1.4 UPICC.

 269. Initially, the UNCITRAL Working Group, in examining the provision which is now Art. 48, took into consideration the relationship of the seller's right to cure with the buyer's right to terminate the contract and the remedy of reduction of price. Several proposals were considered. The central issue in discussion of those proposals was whether the buyer may preclude the seller from curing any failure to perform his obligations where the cure can be effected without such delay as would amount to a fundamental breach and without causing the buyer unreasonable inconvenience or unreasonable expense. This issue was discussed in the context of a defect in the goods which, in the absence of repair, was so serious as to constitute a fundamental breach but where the delay in remedying that defect would not constitute a fundamental breach and would not even cause the buyer unreasonable inconvenience or unreasonable expense. Different views were rendered by the members of the Committee. However, there was considerable opposition in the Committee to the idea that the buyer's right to declare the contract avoided could be affected by an offer to cure the defect after the time for performance. The seller was in breach and a possibility to cure was a privilege which depended upon the consent of the buyer who had the right to declare the contract avoided. There was, on the other hand, substantial support for the proposition that the buyer's right to declare a reduction in the price was subject to the seller's right to cure, provided that the seller bore all expenses of such cure. As a result, the Committee accepted the majority's view and reworded para. (1) of the Draft Art. 30, which was renumbered as Art. 44(1) of the Draft Convention 1978, as follows: "[U]nless the buyer has declared the contract avoided in accordance with Art. 31, the seller may ... remedy ...." The Secretariat Commentary on Art. 44 of the 1978 Draft in line with this general understanding notes that "the seller would have the right to remedy the non-conformity in the goods by repairing or replacing them, unless the buyer terminated the seller's right by declaring the contract avoided." (Infra. note 29.)

 270. Supra. note 12. Para. (1) of the 1978 Draft was modified at the 1980 Vienna Diplomatic Conference. With respect to paragraph (1), one of the two changes is: The substitution of "Subject to article 49" for "Unless the buyer has declared the contract avoided in accordance with article 45 [1978 Draft counterpart to CISG article 49]". In this respect, three alternatives were proposed: Alternative I: Delete the words "Unless the buyer has declared the contract avoided in accordance with [CISG article 49]." Alternative II: Delete these words and substitute the words "Subject to [CISG article 49]". Alternative III: Qualify seller's right to avoid by adding to [CISG article 49(1)(a)] the words "... and the seller does not remedy the failure in accordance with [CISG article 48]" (said to be a clarification of alternative I and that, in fact, the two constitute a single proposal). Alternatives I and III were rejected. Alternative II was accepted with minimal discussion (O. R. p. 352).
Conference comments on alternatives I and III included the following: "Mr. KLINGSPORN (Federal Republic of Germany) said that ... his delegation had submitted [a proposal identical to alternative I]. The existing text created a situation which was neither satisfactory nor logical. If for example, the seller delivered a machine on the date fixed and the machine, once it was installed, failed to work in a satisfactory manner, that should not be regarded as a fundamental breach of contract and the buyer should not be able to declare the contract avoided if the seller was prepared to remedy the fault within a reasonable time. The seller's right to remedy his failure to perform should prevail over the buyer's rights. The situation should also be clarified in respect of [CISG article 49]" (O. R., p. 341) "Mr. FELTHAM (United Kingdom)said that he shared the view of those who felt unable to accept the amendment proposed by ... the Federal Republic of Germany. In support of its amendment, the latter delegation had mentioned the example of a machine which had been delivered but did not work. If the machine could be repaired within a few days, there was no fundamental breach, which was what [CISG article 48] was concerned with. Conversely, the case should be considered where the seller had delivered a machine which in no way fulfilled the buyer's explanations, whereupon the latter lost confidence and did not even wish the seller to attempt to repair it. The buyer should be able to declare the contract avoided at that point without having to listen to the seller's arguments. Hence, the first phrase of [CISG article 48(1)] should be kept" (O. R., pp. 341-342)

 271. See Mirghasem Jafarzadeh in "Buyer's Right to Withhold Performance and Termination of Contract: A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law" (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh1.html

 272. Ibid.

 273. See Lookofsky, in "The 1980 United Nations Conventionon Contracts for the International Sale of Goods": International Encyclopaedia of Laws, Blanpain, gen. ed., Kluwer (1993); p. 94.

 274. Supra. note 29.

 275. Supra. note 6, p. 194.

 276. See Robert Koch in "The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)": Pace ed., Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999); p. 324. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koch-48.html

 277. See Robert A. Hillman in "Applying the United Nations Convention on Contracts for the International Sale of Goods: The Elusive Goal of Uniformity": Cornell Review of the Convention on Contracts for the International Sale of Goods (1995); pp. 21-49. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/hillman1.html

 278. Supra. note 14

 279. See Comment 8 on Art. 7.1.4 UPICC.

 280. Supra. note 18, p. 187.

 281. Supra. note 18, p. 189.

 282. Supra. note 3.

 283. See Comment 10 on Art. 7.1.4 UPICC.

 284. See Comment 7 on Art. 7.1.4 UPICC.

 285. Supra. note 38.

 286. See Comment 9 on Art. 7.1.4 UPICC.

 287. See Peter A. Piliounis in "The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist) under the CISG: Are these worthwhile changes or additions to English Sales Law?": 12 Pace Int'l L. Rev. 1 (2000). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/piliounis.html

 288. See Arnau Muriá Tuñón in "The Actio Quanti Minoris and Sales of Goods Between Mexico and the U.S.: An Analysis of the Remedy of Reduction of the Price in the UN Sales Convention, CISG Article 50 and its Civil Law Antecedents" (1998). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/muria.html

 289. See Albert H. Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (1989); p. 375.

 290. See Harry M. Flechtner in "More U.S. Decisions on the U.N. Sales Convention: Scope, Parol Evidence, 'Validity', and Reduction of Price Under Article 50": 14 J.L. Com. (1995); pp. 153-176. Available online at ‹http://cisgw3.law.pace.edu/cisg/biblio/flechtner.html

 291. See R. Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition, Oxford: Clarendon Press (1996); p. 318.

 292. Supra. note 2.

 293. See Eric E. Bergsten and Anthony J. Miller in "The Remedy of Reduction of Price": 27 American Journal of Comparative Law(1979); pp. 255-277. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/bergsten.html› [This is a commentary on the remedy of reduction of price under Art. 46 of the 1978 Draft Convention, from which the basic concept of price reduction under CISG Art. 50 remains unchanged nevertheless differs from the latter in several respects. For comparison of Art. 46 of the 1978 Draft with CISG Art. 50, see the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-50.html› ]

 294. See e.g., Swedish Sales Act §§ 42, 43; Art. 1644 of the French Civil Code; German Civil Code (BGB) §§ 459, 462, 472; See also Austrian ABGB § 932(1); Danish Sale of Goods Act §§ 42-43; Finnish and Swedish Sale of Goods Acts §§ 37-38; Greek CC Arts. 534, 535, 540; Italian CC Art. 1492(1); Portuguese CC Arts. 911, 913; Dutch BW Arts. 6:265, 6:270, etc.

 295. See J.O. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention, 2nd ed., Deventer: Kluwer (1991); p. 313.

 296. See Bergsten and Mille, supra. note 7.

 297. Supra. note 2.

 298. See Bergsten and Mille, supra. note 7.

 299. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); p. 79. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-50.html› The Norwegian proposal (A/Conf. 97/C.1/L.167 (= O.R. 118)) to calculate the reduction with reference to the (lower) value of the goods at the time delivery was favorably received. Art. 50 thus differs both from the German Civil Code and from ULIS Art. 46.

 300. Supra. note 1.

 301. Ibid.

 302. See Alison E. Williams in "Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in the United Kingdom": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 9-57. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/williams.html› The same result would occur if the buyer were to make a claim for damages or specific performance. In either case, if the seller disagrees with the buyer as to the existence of a non-conformity in the goods -- or other failure of performance -- or as to the monetary consequences of that non-conformity, the issue must ultimately be settled in court.

 303. See Bergsten and Mille, supra. note 7.

 304. Supra. note 1.

 305. See Bergsten and Mille, supra. note 7.

 306. See Anette Gärtner in "Britain and the CISG: The Case for Ratification - A Comparative Analysis with Special Reference to German Law": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 59-81. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/gartner.html

 307. Ibid.

 308. See Erika Sondahl in "Understanding the Remedy of Price Reduction - A Means to Fostering a More Uniform Application of the United Nations Convention on Contracts for the International Sale of Goods" (2003). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sondahl.html

 309. Supra. note 4. The "modification" view, however, should be handled with care. There are important differences between the fictitious modification permitted by Art. 50 and an actual modification. For one thing, a buyer who accepts non-conforming goods and reduces the price under Art. 50 is entitled to recover damages beyond the amount of the price reduction -- although this could be rationalized as part of the implied price term of the modification. Additionally, the seller might be bound to a price reduction under Art. 50 even if she made it clear that she did not intend to be so bound. Thus suppose a seller shipped non-conforming goods accompanied by notice that, if the buyer was unwilling to pay full price despite the nonconformity, the goods should be returned to the seller. It is not clear whether this expedient would prevent the buyer from keeping the goods and reducing the price under Art. 50.

 310. Supra. note 1.

 311. Supra. note 4.

 312. See Bergsten and Mille, supra. note 7.

 313. Thus, if the seller fails to deliver 10% of the goods called for under the contract, the buyer could either declare the price reduced by 10% under Art. 50 or he could declare 10% of the contract avoided. Furthermore, if the partial non-delivery was so serious as to constitute a fundamental breach of the entire contract, the buyer could declare the whole contract avoided and, in effect, reduce the price by 100%. The same relationship exists between avoidance of contract and reduction of price where the non-conformity relates to the quality of the goods rather than quantity. If the non-conformity is so serious as to constitute a fundamental breach of the entire contract, the buyer can declare the contract avoided, and, in effect, reduce the price by 100%. If the non-conformity renders 10% of the goods worthless, the buyer could reduce the price by 10% or declare that portion of the contract avoided. Similarly, if the non-conformity as to quality existed in all the goods and reduced their value by 10%, the buyer could reduce the price by that amount.

 314. 1978 Draft Art. 46 reads: "If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may declare the price to be reduced in the same proportion the value that the goods actually delivered would have had at the time of the conclusion of the contract bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 44 or if he is not allowed by the buyer to remedy that failure in accordance with that article, the buyer's declaration of reduction of the price is of no effect." Its match-up with CISG Art. 50 indicates that although the basic concept of price reduction remains unchanged, CISG Art. 50 differs from 1978 Draft article 48 in several respects: First, the method of computing the price reduction is different; Second, CISG Art. 50 contains a new reference: CISG Art. 50 is made inapplicable if the seller remedies any failure to perform his obligations in accordance with CISG Art. 37; Also, a new article has been added to the Official Text, CISG Art. 44, which should be read in conjunction with CISG Art. 50. Thus, the Secretariat Commentary on 1978 Draft Art. 46 is only of limited relevance to CISG Art. 50. (See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-50.html)

 315. See Secretariat Commentary on 1978 Draft Art. 46, Comment 4. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-50.html

 316. Ibid. Comment 3.

 317. Supra. note 3, p. 376.

 318. Supra. note 1.

 319. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods" (1981). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel50.html

 320. See Anette Gärtner, supra. note 20, where he illustrates as: The contract price of a quantity of shirts is £ 100,000; however, the shirts supplied are non-conforming, so their value amounts to £40,000 as opposed to £ 80,000 for conforming goods; in addition, by the due delivery date, the market price has fallen to £ 60,000. Under the circumstances of this example, two remedies are available to a buyer who does not intend to declare the contract avoided because he wants to keep the goods. First of all, Art. 45(1)(b) of the CISG entitles the buyer to damages for breach of contract. These will be determined in accordance with Art. 74, under which he may recover "a sum equal to the loss . . . suffered . . . as a consequence of the breach." Since the ratio legis of this provision is to place the injured party in the same economic position he would have been in if the other party had fulfilled his obligations, in case of defective performance, this sum equals the difference between the value of the supplied goods and the market price. The damages a buyer could claim in the above sketched situation would therefore amount to £ 60,000 - £ 40,000 = £ 20,000. Hence, on the whole, he would have to pay £ 100,000 - 20,000 = £ 80,000 for the shirts. However, the buyer may also reduce the price according to the formula laid down in Article 50 of the CISG: reduced price / contract price = value of supplied goods / value of conforming goods. As a result, he would only incur expenses of £ 50,000.

 321. Supra. note 1.

 322. Ibid.

 323. Supra. note 20.

 324. Supra. note 1.

 325. Supra. note 20.

 326. Art. 35 CISG reads as follows:
"(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.
(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:
(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.
(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity."

 327. Supra. note 1.

 328. See Oberlandesgericht [Appellate Court] Koblenz, Germany, 31 January 1997, available online at ‹http://cisgw3.law.pace.edu/cases/970132g1.html› , where it is stated that lack of conformity includes lack of both quantity and quality.

 329. Supra. note 7.

 330. Supra. note 1.

 331. See A/Conf. 97/C.1/SR.23 at 9-10 (= O.R. 359 et seq.) Available online at ‹http://www.cisg.law.pace.edu/cisg/firstcommittee/Meeting23.html

 332. Supra. note 13, p. 56.

 333. Supra. note 29, Comment 2.

 334. Supra. note 13.

 335. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 196. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 336. Supra. note 2.

 337. Supra. note 1.

 338. Supra. note 22.

 339. Supra. note 2.

 340. Supra. note 49.

 341. Supra. note 49, p. 197.

 342. Ibid. This approach produced some controversy. In fact, it was disputed to the very last minute. It was argued about both during the meeting in which it was discussed and during the final approval of the article. The controversy continues to exist.

 343. Supra. note 49, p. 198.

 344. See Fritz Enderlein in "Rights and Obligations of the Seller under the UN Convention on Contracts for the International Sale of Goods": Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1996); p. 198. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein1.html

 345. Supra. note 16.

 346. Supra. note 2.

 347. Supra. note 58.

 348. Supra. note 55.

 349. Art. 37 CISG reads: "If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention."

 350. Supra. note 57.

 351. Supra. note 2.

 352. Supra. note 1.

 353. See Comment and Notes to the PECL: Art. 9:401. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/comparison50.html

 354. Ibid.

 355. Supra. note 67, Comment C.

 356. Supra. note 67, Comment D.

 357. Supra. note 67, Note 1.

 358. Supra. note 1.

 359. Ibid.

 360. See. Comment 2 on Art. 7.3.1 UPICC.

 361. See Anna Kazimierska in "The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 82. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/kazimierska.html

 362. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 318. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 363. This solution resembles the typical legal consequences from changed circumstances (see the discussion in PART V). Exemptions, as can be seen particularly well from the context of impediments, only lead to the removal of certain legal consequences of the breach of contract, while others continue to exist. The aggrieved party, hence the partner of the party who is affected by the changed circumstances, thus has only two options left: either to avoid the contract or to accept in this way or another the wishes of the other party to adjust the contract - or wait for better times. (Supra. note 3.)

 364. See Comment 1 on Art. 7.3.1 UPICC.

 365. See Comment and Notes to the PECL: Art. 9:301. Note 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp49.html

 366. Supra. note 3, p. 279.

 367. Supra. note 6, Comment B.

 368. See G H Treitel, Remedies for Breach of Contract (1988); p338. (Cf. J. W. Carter in "Party Autonomy and Statutory Regulation: Sale of Goods": 6 Journal of Contract Law, North Ryde NSW, Australia (1993); n. 72. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/carter3.html)

 369. Alternatively, the aggrieved party even in such a detrimental situation justifying termination is certainly entitled to exercise other remedies vested in him and claim damages if the compensation for damages provide adequate protection.

 370. See, e.g. Award ICC No. 2583, Clunet (1976) 950, and note Derains; No. 3540, Clunet (1981) 915; 7 YBCA 124.

 371. See Ulrich Drobnig in "General Principles of European Contract Law"; Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1986); p. 328. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/drobnig.html

 372. Supra. note 1.

 373. See Secretariat Commentary on Art. 45 of the 1978 Draft [draft counterpart of CISG Art. 49], Comments 5, 6. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-49.html

 374. Ibid., Comment 7.

 375. See Secretariat Commentary on Art. 60 of the 1978 Draft [draft counterpart of CISG Art. 64], Comment 5. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-64.html

 376. Supra. note 2, p. 97.

 377. See Harry M. Flechtner in "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.": 8 Journal of Law and Commerce (1988) 53-108. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/flecht47,63.html

 378. Supra. note 6, Comment A.

 379. See Robert Koch in "The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)"; Pace Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999); p. 185. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koch.html

 380. See Alexander Lorenz in "Fundamental Breach under the CISG". Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/lorenz.html

 381. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel25.html

 382. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 112. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 383. Supra. note 2. Art. 10 ULIS reads: "For the purposes of the present Law, a breach of contract shall be regarded as fundamental wherever the party in breach knew, or ought to have known, at the time of the conclusion of the contract, that a reasonable person in the same situation as the other party would not have entered in to the contract if he had foreseen the breach and its effects."

 384. See John HONNOLD, Uniform Law for International Sales under the 1980 United Nations Convention, 2nd edition, Deventer-Boston (1991); p. 181.

 385. Supra. note 1, pp. 185-186.

 386. The mercantile need for predictability and certainty is emphasized by Kenneth C. Randall and John E. Norris in "A New Paradigm for International Business Transactions": 71 Wash. U.L.Q. (1993); p. 599, 609.

 387. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); pp. 59-60. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-25.html

 388. Supra. note 1, p. 187.

 389. See BABIAK, Andrew in "Defining 'Fundamental Breach' under the United Nations Convention on Contracts for the International Sale of Goods": 6 Temple International Law Journal (1992); p. 113, 118.

 390. Supra. note 4.

 391. See Mirghasem Jafarzadeh in "Buyer's Right to Withhold Performance and Termination of Contract: A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law" (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh1.html

 392. See M. WILL in Commentary on the International Sales Law: The 1980 Vienna Sale Convention, Cesare Massimo Bianca and Michael Joachim Bonell eds. (1987) [hereinafter Bianca and Bonell]; p. 209.

 393. Supra. note 4, p. 113.

 394. Ibid.

 395. See Harry M. Flechtner in "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.": 8 Journal of Law and Commerce (1988); pp. 53-108. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/flecht.html

 396. Supra. note 15.

 397. Supra. note 1, pp. 238 - 245.

 398. See Hossam El-Saghir in "Fundamental breach: Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Article 25 CISG" (2000). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp25.html

 399. See Anna Kazimierska in "The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 106. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/kazimierska.html

 400. See Secretariat Commentary on Art. 23 of the 1978 Draft [draft counterpart of CISG Art. 25], Comment 3. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-25.html› (One should note, however, significant changes were made to Art. 23 of the 1978 Draft. Accordingly, the Secretariat Commentary on 1978 Draft Art. 23 should not be regarded as entirely relevant to the interpretation of CISG article 25. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-25.html)

 401. Supra. note 20.

 402. See Peter Schlechtriem in "Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany ": Juridisk Tidskrift (1991/92); pp. 1-28. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/schlechtriem25.html

 403. Supra. note 20.

 404. See Comment and Notes to the PECL: Art. 9:301. Comment D. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp49.html

 405. Supra. note 4, p. 332.

 406. Examination of the legislative history of Art. 25 shows that it was first suggested that to ascertain whether breach was fundamental, it should have been proved that the detriment caused by the breach was substantial and the Committee welcomed that proposal and inserted it into the definition of fundamental breach. In the Diplomatic Conference, however, the debate on the words "substantial detriment to the other party" was extensive. Some delegations labelled it something between "vague", "subjective" and "objective and flexible". The main objection to the "substantial" criterion was that "substantial" as an adjective caused as much uncertainty as "fundamental" itself, and, therefore, required an objective yardstick. Various proposals were offered for this purpose. (Supra. note 4.)

 407. Supra. note 2.

 408. Supra. note 14, p. 210.

 409. Supra. note 13.

 410. Supra. note 4, p. 115.

 411. Supra. note 13.

 412. Supra. note 30.

 413. Supra. note 4, p. 116.

 414. Supra. note 2.

 415. Supra. note 13.

 416. Supra. note 1, p. 265.

 417. Supra. note 13.

 418. Supra. note 35; see also supra. notes 13, 17.

 419. See Jianming Shen in "Declaring the Contract Avoided: The U.N. Sales Convention in the Chinese Context"; New York International Law Review, Vol. 10, No. 1, New York State Bar Association (Winter 1997); pp. 18-19. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/shen.html› Nevertheless, there is the possibility of arguing in support of the first approach. As explained when dealing with the concept of the injured party's expectations under the contract, whether or not the injured party was entitled to expect to have a particular benefit should be ascertained within the contract terms and other circumstances which came to the attention of the party in breach at the time of making the contract. The same analysis seems to be applicable to the measurement of foreseeability of the consequences of the breach. It can even go further and argue that the language of Art. 25 is in line with this approach, since it defines the consequences relevant to the determination of fundamental breach in terms of what a party "is entitled to expect under the contract" and the second sentence of the Article refers to the foreseeability of "such result" by the party in breach. Accordingly, as contractual expectations are formed at the time of contracting, foreseeability of substantial deprivation of those expectations by the reason of breach should also be measured at that time. (Supra. note 11.)

 420. Supra. note 13.

 421. Supra. note 20.

 422. Supra. note 1, pp. 229.

 423. See Comment 3(a) on Art. 7.3.1 UPICC.

 424. See Alison E. Williams in "Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in the United Kingdom": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 9-57. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/williams.html

 425. Supra. note 1, p. 300.

 426. The issue in such a case is whether the Convention's principle of party autonomy is limited by the Convention's good faith requirement to act reasonably. Unlike under the UNIDROIT Principles and the PECL, however, the principle of party autonomy is not expressly limited under the Convention, and attempts at the Vienna Diplomatic Conference to limit this principle by the concept of good faith were rejected. Within the scope of the Convention, the parties' freedom to determine the content of their individual contract is only restricted by otherwise applicable mandatory rules, be they of national, international, or supranational origin. It seems, therefore, that the Convention's principle of party autonomy prevails over the Convention's good faith requirement and that the breaching party cannot invoke good faith to invalidate a clause providing for avoidance or substitute delivery for any deviation from the contract, no matter how trivial. This view is confirmed by Art. 4, according to which the Convention is not concerned with the validity of the contract or of any of its provisions. (Supra. note 1, pp. 337-338.)

 427. See Secretariat Commentary on Art. 45 of the 1978 Draft [draft counterpart of CISG Art. 49], Comment 7. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-49.html

 428. See Comment 3(b) on Art. 7.3.1 UPICC.

 429. See Comment and Notes to the PECL: Art. 8:103. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp25.html

 430. Supra. note 1, pp. 215-216.

 431. Supra. note 1, p. 343.

 432. Supra. note 1, p. 345.

 433. See Comment 3(c) on Art. 7.3.1 UPICC. This differs from the approach under party autonomy which focuses on the nature of the contract entitling the aggrieved party to avoid the contract even if the breach is minor.

 434. See Oberlandesgericht Dsseldorf, 10 February 1994, 6 U 119/93. The full text of the decision is published in German. See University of Freiburg Database, ‹http://www.cisg-online.ch/cisg/urteile/187.html› An English abstract is available as CLOUT Case 82 and commented on by Ulrich Magnus, Probleme der Vertragsaufhebung mach dem UN-Kaufrecht (CISG) -- Anmerkung zu OLG Dsseldorf, Jus 870 (1995).

 435. Supra. note 20.

 436. See Comment 3(d) on Art. 7.3.1 UPICC.

 437. Supra. note 1, p. 223; pp. 245-247. In addition, where one party can reasonably conclude from the other party's conduct that he will not perform a substantial part of his obligation, the former may ask the latter for an adequate assurance of performance, and failure to provide an additional guarantee is usually regarded as a fundamental breach. Furthermore, the regime for suspension in anticipatory non-performance (see Chapter 9) is helpful to lessen the risks inherent in matters such as creditworthiness.

 438. Supra. note 1, pp. 247-253.

 439. Supra. note 51, Comment D.

 440. See Comment 3(e) on Art. 7.3.1 UPICC.

 441. Supra. note 1, p. 331.

 442. Supra. note 54.

 443. Supra. note 1, p. 335.

 444. See Jianming Shen in "Declaring the Contract Avoided: The U.N. Sales Convention in the Chinese Context"; New York International Law Review, Vol. 10, No. 1, New York State Bar Association (Winter 1997); pp. 20-21. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/shen.html

 445. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel71.html

 446. See Sieg Eiselen in "Remarks on the manner in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement Articles 71 and 72 of the CISG". (2002) Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni71,72.html#er› ; also in "Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Articles 71 and 72 of the CISG". (2002) Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp71,72.html#er› .

 447. See Harry M. Flechtner in "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.": 8 Journal of Law and Commerce(1988) 53-108. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/flecht71,72.html

 448. See Harry M. Flechtner in "The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)": 17 Journal of Law and Commerce (1998) 187-217. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/flechtner71,72.html

 449. Supra. note 2.

 450. Supra. note 4.

 451. Supra. note 5.

 452. See J. W. Carter in "Party Autonomy and Statutory Regulation: Sale of Goods"; 6 Journal of Contract Law, North Ryde NSW, Australia (1993) p. 106. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/carter3.html› The distinction, however, also creates an ambiguity in the operation of Art. 71: "Suppose that a party has suspended performance because the other side will apparently fail to perform a substantial but not 'fundamental' part of its obligations. If adequate assurances are not forthcoming, can the aggrieved party continue to suspend its performance indefinitely? The answer should be no. Professor Honnold notes that '[c]ontinued suspension of performance is closely akin to avoidance of the contract.' Permitting indefinite suspension where the threatened breach is not fundamental, therefore, would undermine Article 72, which permits avoidance only where it is clear that a fundamental breach will occur. Two solutions are possible: (1) Article 71 could be construed to require that the suspending party either avoid the contract or end its suspension within a reasonable time after demanding adequate assurances; (2) the standards for the seriousness of the threatened breach in Articles 71 and 72 could be treated as equivalent. Neither solution, however, is supported by the text of the Convention." (Supra. note 5.)

 453. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 286. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 454. Supra. note 3.

 455. Supra. note 10, p. 284.

 456. Supra. note 5.

 457. Supra. note 10, pp. 286-287.

 458. Supra. note 10, p. 287.

 459. See Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 2d ed., Kluwer (1991); p. 488.

 460. Supra. note 10, pp. 285-286..

 461. See Alejandro M. Garro in "Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods": 23 International Lawyer (1989); pp. 443-483. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/garro1.html

 462. Supra. note 10, p. 286.

 463. Supra. note 15.

 464. See Secretariat Commentary on Art. 62 of the 1978 Draft [draft counterpart of CISG article 71], Comment 10. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-71.html› The match-up indicates that paragraphs (2) and (3) of Art. 62 of the 1978 Draft and CISG Art. 71 are substantially the same. However, paragraph (1) was significantly modified. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-71.html

 465. Supra. note 10, p. 288.

 466. Supra. note 21, Comment 11.

 467. See Jelena Vilus in "Provisions Common to the Obligations of the Seller and the Buyer": Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1986); pp. 243-244. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/vilus.html

 468. Supra. note 21, Comment 12. The rules governing the carrier's obligation to follow the consignor's orders to withhold delivery from the consignee differ between modes of transportation and between various international conventions and national laws.

 469. Supra. note 22.

 470. Supra. note 10, pp. 288-289.

 471. Supra. note 21, Comment 13.

 472. Supra. note 10, p. 289.

 473. Ibid.

 474. Supra. note 29.

 475. Supra. note 10, p. 290.

 476. See J. W. Carter, supra. note 9.

 477. Supra. note 21, Comment 16.

 478. See Comment on Art. 7.3.3 UPICC.

 479. See Comment and Notes to the PECL: Art. 9:304. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp72.html

 480. Ibid., Comment D.

 481. Supra. note 3.

 482. Supra. note 36, Comment B.

 483. Supra. note 10, p. 291.

 484. Supra. note 3.

 485. See Peter Schlechtriem in "Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods", Manz, Vienna (1986); p. 96. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-72.html› As to be discussed below, there is also a difference of opinion between commentators on whether a failure or a refusal to produce adequate security where it has been demanded is in itself a fundamental breach or whether it may only be a clear indication that the other party will commit a fundamental breach.

 486. Supra. note 3.

 487. See Secretariat Commentary on Art. 63 of the 1978 Draft [draft counterpart of CISG article 72], Comment 4. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-72.html› The match-up indicates that paragraph (1) of article 63 of the 1978 Draft and paragraph (1) of CISG article 72 are substantially identical. Paragraphs (2) and (3) of the Official Text are new. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-72.html

 488. Supra. note 39.

 489. Supra. note 44, Comment 3.

 490. Supra. note 36, Comment C.

 491. Germany 30 September 1992 Landgericht [District Court] Berlin; available online at ‹http://cisgw3.law.pace.edu/cases/920930g1.html

 492. Supra. note 44, Comment 2.

 493. See Anna Kazimierska in "The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 97. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/kazimierska.html› In this respect, Kazimierska submits that this certainty will arise when the seller resells to a third party the goods he was to deliver to the buyer, or when he sells machines necessary for the production of goods contracted for by the buyer, or in the case of seller's insolvency and initiation of bankruptcy proceeding. When a deficiency in the seller's ability to perform, usually a deficiency in his creditworthiness, becomes so serious that it is clear that a fundamental breach of contract will be committed, the buyer also will have grounds for avoidance.

 494. Supra. note 10, pp. 292-293. Another issue to be noted here is that under the CISG this notice is subject to Art. 27. If it is lost, the party entitled to avoid the contract does not lose that right. But he should in his own interest make sure that the notice reaches the other party.

 495. Thus there is no need to give notice in advance of the intention to avoid the contract. But also in this case, the other party has a right and no obligation(except in regard to mitigation of losses, note 3) to declare the contract avoided. If the entitled party does not avoid the contract, and if the obligor changes his mind, the latter may still fulfil the contract. On the other hand, the obligee does not have to wait and see whether the obligor changes his mind; he can avoid the contract immediately. In such a case, the declaration of an intended non-performance of the contract is irrevocable (Supra. note 10, p. 293.)

 496. Supra. note 42, p. 95.

 497. Supra. note 3.

 498. Alike the matter in suspension of performance discussed above, termination also entails a certain risk. In the assessment of the appropriateness of termination, decisive is not just the relevant information, but whether the party wishing to terminate the contract could hold it to be true. If the party terminating the contract could hold the information available to him to be true, the risk falls to the other party. If the first party, however, refuses to perform his obligations unfoundedly, he commits a fundamental breach of contract. Risks of this kind cannot be fully avoided in international trade.

 499. Supra. note 3.

 500. See Comment 1 on Art. 7.3.4 UPICC. See also Comment and Notes to the PECL: Art. 8:105. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp71,72.html

 501. Ibid.

 502. See Comment 2 on Art. 7.3.4 UPICC; Comment D on Art. 8:105 PECL, supra. note 57.

 503. See Robert Koch in "The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999), p. 307. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koch.html

 504. Supra. note 10, p. 293.

 505. Supra. note 28.

 506. Supra. note 3.

 507. Ibid.

 508. See Comment 3 on Art. 7.3.4 UPICC; Comment C on Art. 8:105 PECL, supra. note 57.

 509. Supra. note 60, p. 309.

 510. Supra. note 10, p. 292. But even if there is no obligation to mitigate losses, clarity can be obtained by avoiding contract and the way could be opened up for new contracts. When a contract has been declared avoided, the entitled party can immediately claim damages.

 511. See Comment and Notes to the PECL: Art. 9:302. Notes. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp51.html

 512. See Secretariat Commentary on Art. 64 of the 1978 Draft [draft counterpart of CISG article 73], Comments 1 and 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-73.html› The match-up between Art. 64 of the 1978 Draft with CISG Art. 73 indicates that they are substantively identical. Each of their three paragraphs contains minor word changes, however, none is in any way substantive. The Secretariat Commentary on 1978 Draft Art. 64 should therefore be relevant to the interpretation of CISG Art. 73. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-73.html

 513. See Anna Kazimierska in "The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 99. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/kazimierska.html

 514. See Jelena Vilus in "Provisions Common to the Obligations of the Seller and the Buyer": Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1986); pp. 246-247. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/vilus.html

 515. See Jianming Shen in "Declaring the Contract Avoided: The U.N. Sales Convention in the Chinese Context "; New York International Law Review, Vol. 10, No. 1, New York State Bar Association (Winter 1997); p. 23. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/shen.html

 516. Supra. note 4.

 517. See Robert Koch in "The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)"; Pace ed., Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999); p. 310. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koch.html

 518. Supra. note 2, Comment 5.

 519. Supra. note 2, Comment 6.

 520. Supra. note 7, p. 311.

 521. See Harry M. Flechtner in "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.": 8 Journal of Law and Commerce (1988); pp. 53-108. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/flecht73.html› Behind these issues are questions about the purpose of the "reasonable time" requirement in Art. 73(2): is it designed to protect breaching parties who may be expending funds to prepare for future performance, to punish aggrieved parties who fail to assert their rights expeditiously, or to do both (with the emphasis depending on the circumstances of the case)?

 522. Supra. note 2, Comment 7.

 523. Supra. note 2, Comment 4.

 524. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 296. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 525. See Robert Koch in "The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)"; Pace ed., Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999); p. 321. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koch.html› It could be argued that Art. 73(3) is the counterpart of Art. 51(2) as far as delivery is made in installments and that it clearly contemplates a fundamental breach situation. It is argued that, under Art. 51(2), one important factor in determining whether the non-conformity of some of the goods or the incomplete delivery entitles the buyer to avoid the entire contract is if the breach renders the intended use of the remainder impossible. Art 51(2) therefore seems to support, at least in situations where the failure to make delivery completely or in conformity with the contract, the approach which asks whether the purpose of the contract has been frustrated by the breach. Thus, the cross-reference to Art. 51(2) confirms such an approach as far as partial non-performance is concerned, and Art. 73(3) confirms it in respect to installment sales. It is, however, rejected by the Convention's regime governing the seller's obligations. This approach, therefore, cannot be applied outside the scope of Arts. 51(2) and 73(3). One way to avoid any inconsistency could be to apply this approach only within the scope of Arts. 51(2) and 73(3), and to consider unfitness for the intended purpose outside their scope as a fundamental breach only where the parties have agreed on fitness for a particular use. In that case, the parties' will prevails over conceptual concerns.

 526. Supra. note 2, Comment 8.

 527. Supra. note 14, p. 297.

 528. Ibid.

 529. Supra. note 12.

 530. Supra. note 3. Where the seller makes a delivery which includes some non-conforming goods or of less than the required quantity of goods, Art. 51(1) entitles the buyer to exercise his remedies under Arts. 46-50, including Art. 49 which gives him the right to avoid the contract. Although the Convention does not expressly make a distinction between cases where the contract is or is not severable, it seems that, by recognising partial avoidance, Art. 51(1) presupposes that it should be the case where performance of the seller could be divided into conforming and non-conforming parts. Leser describes CISG Art. 51 as creating a de facto division in the contract. Where the non-conforming part is severable, the reference means that both the conditions and the effects of Arts. 46-50 can be applied to that part. It follows that the buyer can treat the missing or non-conforming part as the subject of a separate contract that is severable for remedy purposes, and consequently terminate the contract in respect of that part, provided that the seller's failure constitutes a fundamental breach with respect to that part. (See Mirghasem Jafarzadeh in "Buyer's Right to Withhold Performance and Termination of Contract: A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law" (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh1.html)

 531. Thus a buyer that has received an installment delivery containing non-conforming goods or an insufficient quantity of goods may have three avoidance options. Under Art. 51(1), the buyer can avoid the contract with respect to the missing or non-conforming goods provided the seller's breach is "fundamental" as to those goods. Under Art. 73(1), the buyer can avoid as to the installment if the delay in full delivery or the non-conformity in the goods "results in such detriment . . . as substantially to deprive [the buyer] of what he is entitled to expect" with respect to the installment. Finally, under Art. 49(1) the buyer can avoid the entire contract if the seller's default constitutes a fundamental breach of the entire contract. (Supra. note 11.)

 532. Supra. note 15.

 533. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel73.html

 534. See Christopher Kee in "Remedies for breach of contract where only part of the contract has been performed: Comparison between provisions of CISG (Articles 51, 73) and counterpart provisions of the Principles of European Contract Law" (2002); pp. 281-282. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp51.html

 535. Supra. note 3, pp. 99-100.

 536. Supra. note 24, pp. 282-283.

 537. Supra. note 24, p. 282.

 538. Supra. note 1, Comment A.

 539. Supra. note 1, Comment C.

 540. Supra. note 24, p. 285.

 541. Supra. note 1, Comment B.

 542. Supra. note 30.

 543. Supra. note 27.

 544. Supra. note 24, p. 284.

 545. Supra. note 30.

 546. Supra. note 27.

 547. Supra. note 24, p. 286.

 548. Supra. note 24, pp. 285-286.

 549. Supra. note 31.

 550. See Comment and Notes to the PECL: Art. 9:303. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp26.html

 551. See J. W. Carter in "Party Autonomy and Statutory Regulation: Sale of Goods"; 6 Journal of Contract Law, North Ryde NSW, Australia (1993); p. 107. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/carter3.html

 552. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 116. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 553. See Secretariat Commentary on Art. 24 of the 1978 Draft [draft counterpart of CISG Art. 26], Comment 1. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-26.html› The match-up indicates that Art. 24 of the 1978 Draft and CISG Art. 26 are identical. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-26.html

 554. Ibid., Comment 2.

 555. See Secretariat Commentary on Art. 45 of the 1978 Draft [counterpart of CISG Art. 49], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-49.html› ; also Secretariat Commentary on Art. 60 of the 1978 Draft [counterpart of CISG Art. 64], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-64.html› Under ULIS, two types of avoidance of the contract were provided for. The first was ipso facto avoidance, that is, the right to continue performance under the contract would come to an end without needing a declaration by the victim of breach, and the second was avoidance by declaration or notice from the innocent party to the breaching party. Ipso facto avoidance was eliminated from the remedial system of the present Convention on the ground that it led to uncertainty as regards the rights and obligations of the parties, e.g., in the case of late delivery, the seller needs to know when he must reship or resell the goods or take other actions to prevent their wastage or spoilage. (See Mirghasem Jafarzadeh, infra. note 12.)

 556. Supra. note 3.

 557. See Albert H. Kritzer in "Editorial remarks on the manner in which the UNIDROIT Principles may be used to interpret or supplement CISG Article 26". Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni26.html

 558. See Comment 1 on Art. 7.3.2 UPICC.

 559. Supra. note 1, Comment D.

 560. Supra. note 3, p. 117.

 561. See Mirghasem Jafarzadeh in "Buyer's Right to Withhold Performance and Termination of Contract: A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law" (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh1.html

 562. See Comment and Notes to the PECL: Art. 9:301. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp49.html

 563. Supra. note 4, Comment 4.

 564. See John O. Honnold, Uniform Law for International Sales, 3rd ed., Kluwer (1999); p. 215. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/e-text-26.html› It is also to be noted that the "informality principle" has been clearly adopted by the new China Contract Law (e.g. Art. 10).

 565. See Peter Schlechtriem, Uniform Sales Law, Manz (1986); p. 45. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/e-text-26.html

 566. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/e-text-26.html

 567. See Comment and Notes to the PECL: Art. 1:303. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp27.html

 568. See Secretariat Commentary on Art. 25 of the 1978 Draft [counterpart of CISG Art. 27], Comment 3. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-27.html

 569. See Comment 1 on Art. 1.9 UPICC.

 570. Supra. note 20.

 571. Supra. note 20, Comment 2.

 572. Supra. note 15.

 573. Supra. note 12. For cases see: Amtsgericht Zweibrücken, 14 October 1992 [1 C 216/92] (Germany) (UNILEX) ‹http://cisgw3.law.pace.edu/cases/921014g1.html› (PACE), where the Court confirmed that, according to CISG art.

 574. the buyer's notice of declaration of avoidance must represent his clear intention to avoid the contract, which in this case neither the buyer's request for a price reduction nor that the goods be taken back could represent; Amtsgericht Oldenburg, 24 April 1990 [5 C 73/89] (Germany) (UNILEX) ‹http://cisgw3.law.pace.edu/cases/900424g1.html› (PACE), where the Court held that the buyer had not effectively avoided the contract by refusing acceptance and returning the invoice; Amtsgericht Nordhorn, 14 June 1994 [3 C 75/94] (Germany) (UNILEX) ‹http://cisgw3.law.pace.edu/cases/940614g1.html› (PACE), where the Court held that the fact that the defective goods were sent back to the seller amounted to a valid declaration of lack of conformity, however the Court found that the buyer's declaration of avoidance was not made according to a provision contained in the seller's general conditions of contract which the Court found to have been incorporated in the contract. The Court invoked art. 4(a) and evaluated the validity of the seller's general conditions on the basis of Italian law as the law governing the contract according to German rules of private international law. As the seller's clause was valid under Italian law, the buyer's declaration of avoidance was without effect because he had failed to declare the contract avoided according to the contractually established procedure.

 575. Supra. note 11. However, it is to be noted that the Official Comment on PECL Art. 9:303 clearly states that: "Notice may be given either by expressly declaring the contract terminated or by rejecting the tender of performance." (Supra. note 1.)

 576. See Germany 17 September 1991 Oberlandesgericht Frankfurthttp://www.cisg.law.pace.edu/cisg/wais/db/cases2/910917g1.html› , where the Court stated: "The telegram of the [buyer] of March 3, 1989 constitutes the declaration of the avoidance of the contract because the [buyer] unmistakably communicated to the [seller] that she, from now on, would produce the collection of shoes with another Italian manufacturer, and she was ending immediately the already-begun collaboration with the [seller]. As to that the [seller] could have no doubts -- even, in the absence of a separate, explicit statement thereof -- that the [buyer] rejected the performance [by the seller] of sending the [buyer] 130 pairs of model shoes, which was only a preliminary step of the planned exchange of goods and, with its avoidance, the purpose of the delivery of the model shoes was not achieved. An explicit reference to the avoidance of the contract, pursuant to the CISG, was not required for the validity of the legal effects of the avoidance of the contract . . . It was sufficient that the [buyer] made clear that she wouldn't pay the [seller's] bill because of her breach of contract, because meanwhile the delivered model shoes became useless to her . . . ."

 577. Supra. note 4, Comment 3.

 578. Supra. note 4, n. 2.

 579. Supra. note 12.

 580. Supra. note 20, Comment 4. However, Part III of the Convention contains exceptions to this rule in cases where it was considered that communication ought to be received to be effective: CISG Arts. 47(2), 48(4), 63(2), 65(1), 65(2) and 79(4). Also, it is noted that in Part II of the CISG, the legal effectiveness of an offer under Art. 15(1) and the legal effectiveness of an acceptance under Art. 18(2) are tied to the moment of receipt as defined in Art. 24. The same rule applies to the withdrawal of an offer (Art. 15(2)), the rejection of an offer (Art. 17), a declaration fixing a period of time for acceptance of an offer (Art. 20(1)), and the withdrawal of an acceptance (Art. 22).

 581. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); pp. 61-62. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-27.html

 582. See Anna Kazimierska in "The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods"; Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 117. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/kazimierska.html

 583. Supra. note 32, p. 62.

 584. Supra. note 3, p. 120.

 585. See Peter Schlechtriem in "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 (1995); pp. 95-114. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlecht.html

 586. Comment 2 on Art. 1.9 UPICC.

 587. Supra. note 36.

 588. Supra. note 33.

 589. Supra. note 9, Comment 4.

 590. Comment 3 on Art. 1.9 UPICC.

 591. It is not necessary that the notice should actually have come to the addressee's attention provided that it has been delivered to him in the normal way, e.g. a letter placed in his letter box or a message sent to his telex or fax machine. Similarly the risk of errors in the notice is normally placed upon the sender (see Art. 4:104). (Infra. note 43.)

 592. Supra. note 18, Comment C.

 593. Supra. note 18, Comment D.

 594. The Comment to PECL Art. 1:303 makes it clear that the dispatch principle applies to notices given under the following articles: Art. 7:109 (Property not accepted); Art. 7:110 (Money not accepted); Art. 8:105 (Assurance of performance); Art. 8:106 (Notice fixing additional time for performance); Art. 9:102(3) (Non-monetary obligation (loss of right to specific performance)); Art. 9:301 (Right to terminate the contract); Art. 9:303 (Notice of termination); Art. 9:304 (Anticipatory non-performance). (Ibid.)

 595. Supra. note 44.

 596. Supra. note 18, Comment E. For instance, for the dispatch principle to apply, the means chosen must be fast enough. If great speed is needed a letter sent by airmail may not be appropriate and the sender may not rely on the fact that it was dispatched.

 597. Supra. note 18, Comment F.

 598. Supra. note 6, Comment 13 on Draft Art. 45

 599. Supra. note 33, p. 119.

 600. Ibid.

 601. See Comment and Notes to the PECL: Art. 9:303. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp49.html

 602. Comment 3 on Art. 7.3.2 UPICC.

 603. Supra. note 33, p. 120.

 604. Supra. note 6, Comment 9 on Draft Art. 45; Comment 8 on Draft Art. 60.

 605. Supra. note 54.

 606. Supra. note 3, p. 247.

 607. Supra. note 33, p. 122.

 608. Supra. note 53.

 609. Supra. note 52.

 610. Comment 2 on Art. 7.3.2 UPICC.

 611. Ibid.

 612. Supra. note 52, Comment C.

 613. Supra. note 58.

 614. See Harry M. Flechtner in "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.": 8 Journal of Law and Commerce(1988); pp. 53-108. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/flecht.html

 615. See Francesco G. Mazzotta in "Commentary on CISG Article 81 and its PECL counterparts" (2003). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp81.html#er› .

 616. See Mirghasem Jafarzadeh in "Buyer's Right to Withhold Performance and Termination of Contract: A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law" (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh1.html

 617. See Secretariat Commentary on Art. 66 of the 1978 Draft [draft counterpart of CISG Art. 81], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-81.html› The match-up indicates that Art. 66 of the 1978 Draft and CISG Art. 81 are substantively identical. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-81.html

 618. Ibid.

 619. See Anna Kazimierska in "The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods"; Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 146. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/kazimierska.html

 620. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 342. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 621. Comment 1 on Art. 7.3.5 UPICC.

 622. See Jelena Vilus in "Provisions Common to the Obligations of the Seller and the Buyer": Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1986); p. 257. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/vilus.html

 623. Supra. note 4, Comment 3.

 624. E.g., in FRENCH, BELGIAN and LUXEMBOURG law, résolution is only retroactive when the contract is to be performed at one time: for a contract à exécution successive the contract is treated as disappearing only from the date at which the debtor ceased performing or was given notice of termination by the aggrieved party. In this context the process is often termed résiliation (Malaurie and Aynès, Obligations nos. 743 and 744). In ITALIAN law termination is in principle retrospective but for contracts involving continuous or periodic performance see CC art. 1458. In PORTUGUESE law termination does not affect performances already rendered unless they are affected by the non-performance, CC art. 434(2). In SPANISH law termination is not necessarily retroactive and does not affect past performance if this is not rendered useless by the non-performance. (Infra. note 12, Note 4.)

 625. See Comment and Notes to the PECL: Art. 9:309. Notes. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp81.html

 626. Supra. note 4, Comment 4.

 627. See Comment and Notes to the PECL: Art. 9:305. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp81.html

 628. Supra. note 12, Note 1.

 629. Supra. note 12.

 630. Supra. note 3.

 631. Ibid.

 632. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); p. 107. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem.html

 633. Supra. note 6, pp. 148-149.

 634. Supra. note 3.

 635. Supra. note 7.

 636. Ibid.

 637. See Comment and Notes to the PECL: Art. 8:102. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp45.html

 638. See Jianming Shen in "Declaring the Contract Avoided: The U.N. Sales Convention in the Chinese Context": New York International Law Review, Vol. 10, No. 1, New York State Bar Association (1997); p. 33. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/shen.html

 639. See John O. Honnold in " On the Road to Unification of the Law of Sales": Forum International, No. 2, June 1983, 8.

 640. Supra. note 25, p. 34.

 641. E.g. COMMON LAW: Heyman v. Darwins [1942] A.C. 356, H.L.; FINLAND: Aurejärvi 106; FRANCE: clause compromissoire (NCPC art. 1466) and penalty clause (Malaurie and Aynès, Obligations no. 543); GERMANY, see Stein-Jonas (- Schlosser) 1025 No. 00; GREEK law, see Kerameus 171-173, with further refs, and Papanicolaou in Georgiadis and Stathopoulos II art. 389 no. 14 (1979); ITALIAN law: no specific text but see Satta 852; Cass. 5 Aug.1968 n. 2803, in Foro It., 1969, I c.445 and Cass. 27 May 1981 n.3474, in Foro It., 1982, I c.199; NETHERLANDS BW art. 6:271; PORTUGUESE CC art. 434(1); SPANISH Arbitration Act 1988 (see Bercovitz, Arbitraje, art. 1, 17 ff and Unidroit art. 7.3.5(3). (Supra. note 12, Note 3.)

 642. Supra. note 25, p. 35.

 643. Comment 3 on Art. 7.3.5 UPICC.

 644. Supra. note 9.

 645. Supra. notes 6, 9.

 646. It is stated with this regard: "The enumeration in paragraph (1) of two particular obligations arising out of the existence of the contract which are not terminated by the avoidance of the contract is not exhaustive. Some continuing obligations are set forth in other provisions of this Convention. For example, article 75(1) [draft counterpart of CISG article 86(1)] provides that 'if the goods have been received by the buyer, and if he intends to reject them, he must take such steps as are reasonable in the circumstances to preserve them' ['If the buyer has received the goods and intends to reject them, he must take such steps to preserve them as are reasonable in the circumstances'] and article 66(2) [draft counterpart of CISG article 81(2)] permits either party to require of the other party the return of whatever he has supplied or paid under the contract. Other continuing obligations may be found in the contract itself or may arise out of the necessities of justice." (Supra. note 4, Comment 6.)

 647. Supra. note 7, pp. 342-343.

 648. Supra. note 7.

 649. Supra. note 9.

 650. Supra. note 4, Comment 5.

 651. Supra. note 14, Comment A.

 652. Supra. note 14, Comment C.

 653. Supra. note 4, Comment 9.

 654. Supra. note 29.

 655. Supra. note 6, p. 147.

 656. Supra. note 7, p. 343.

 657. Supra. note 6, pp. 146-147.

 658. Supra. note 4, Comment 8.

 659. Supra. note 25,p. 36. As convincing as this rule may sound, it will be difficult to implement it. Since in international trade concurrence does not mean a direct change from one hand into the other, there can be several forms in which this requirement is to be fulfilled. Art. 58 can provide an orientation for it. It is believed, however, that in choosing the forms of concurrence, it has to play a role whether a party is liable for a breach of contract. The concrete form to be applied would then have to be chosen to the disadvantage of that party. When the contract is avoided because the seller has delivered grossly non-conforming goods, the buyer may demand that a letter of credit be opened up as a condition for the restitution. Where the avoidance, however, is caused by the buyer who stops paying installments, the seller will at best be willing to repay the refundable part of the price on the condition of cash against documents, and require the granting of an opportunity to examine the goods to be restituted. The situation, however, is further complicated because it will in most cases not be clear in which amount the performance in money will have to be restituted. In this regard, the CISG offers little help to clarify the situation. The parties, therefore, have to agree the sums and/or obtain a decision on them before the concurrent restitution takes place. (Supra. note 7, pp. 344-345.)

 660. Supra. note 7, p. 344; supra. note 18.

 661. Supra. note 42.

 662. Supra. note 4, Comment 11.

 663. Comment 1 on Art. 7.3.6 UPICC.

 664. Ibid.

 665. Supra. notes 10, 42.

 666. Supra. note 43.

 667. See Comment and Notes to the PECL: Art. 9:307. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp81.html

 668. Supra. note 2.

 669. See Comment and Notes to the PECL: Art. 9:306. Comment. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp81.html

 670. Ibid.

 671. For instance, in GERMAN law, if the performances are inter-related either party can demand return of the earlier-delivered part. In ENGLISH and IRISH law, where a part of the goods to be delivered are defective, the buyer may reject the whole (U.K. Sale of Goods Act 1979, s. 30; for Ireland, see Forde 1.192), and this will apply even if the goods are to be delivered in installments provided that the installments are similarly inter-connected and thus the contract is not severable (see Gill and Dufus SA v . Berger and Co Inc [1983] 1 Lloyd's Rep. 622, reversed without reference to this point [1984] A.C. 382, H.L.; Atiyah 452). The position with severable contracts is less clear but probably there is a right to reject installments already received if they are rendered useless by the later breach (Atiyah 455; Forde 1.198). The DANISH Sale of Goods Act, 46, and the FINNISH and SWEDISH Sale of Goods Acts 43 and 44 (see Ramberg, Köplagen 462), provide that a buyer who has received a defective installment can reject installments received earlier if the installments are so inter-connected that it would be detrimental to the buyer to have to keep the earlier ones. In ITALIAN law there is no general provision but under CC art. 1672 when a construction contract is terminated the purchaser has only to pay for work done so far as it is of value to him. (Supra. note 12, Note 5.)

 672. Supra. note 12, Note 8(a).

 673. Supra. note 54, Comments B, D.

 674. See Comment and Notes to the PECL: Art. 9:308. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp81.html

 675. Supra. note 12, Note 8(b).

 676. Supra. note 61, Comment B. Similarly, the Official Comment on UPICC Art. 7.3.6 also clearly states that in common with other articles of the UNIDROITP Principles, Art. 7.3.6 deals with the relationship between the parties and not with any rights which third persons may have acquired on the goods concerned. Whether, for instance, an obligee of the buyer, the buyer's receivers in bankruptcy, or a purchaser in good faith may oppose the restitution of goods sold is to be determined by the applicable national law. (Comment 5 on UPICC Art. 7.3.6.)

 677. Supra. note 61, Comment C.

 678. Supra. note 61, Comment E.

 679. Supra. note 61, Comment F.

 680. Supra. note 12, Note 8.

 681. Supra. note 2.

 682. Supra. note 54.

 683. Illustration: A has sold a Renoir painting to B for US$200,000; the true value of the painting is over US$250,000. When the picture is delivered to B, he does not pay for it. A is entitled to claim back the painting. (Supra. note 61, Comment G; also supra. note 50.)

 684. Supra. note 19.

 685. This obligation arises irrespective of the grounds which have led to the avoidance of the contract. But its results can in the end be considerably modified. The party who has declared the contract avoided because of a breach of contract by the other party will, as a rule, have the right to claim damages which he can set-off against payment obligations under this Article. Furthermore, the parties may set-off against each other the claims they might have under this Article. Every party will, of course, be interested in having the sum of money to which he will be entitled or which he will have to pay under Art. 84 and refundable expenses related to the restitution included in the concurrent restitution as either surcharges or reductions. In general, this has to be considered as justified since restitution relates to the claims as they actually stand. (Supra. note 7, p. 345, 349.)

 686. See Secretariat Commentary on Art. 69 of the 1978 Draft [draft counterpart of CISG Art. 84], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-84.html› The match-up indicates that Art. 69 of the 1978 Draft and CISG Art. 84 are substantively identical. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-84.html

 687. Supra. note 7, p. 349.

 688. Supra. note 73, Comment 3.

 689. Supra. note 7, p. 350.

 690. Supra. note 73, Comment 1.

 691. Supra. note 19.

 692. Supra. note 9, p. 258.

 693. See Secretariat Commentary on Art. 67 of the 1978 Draft [draft counterpart of CISG Art. 82], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-82.html

 694. See Francesco G. Mazzotta in "Commentary on CISG Article 82 and PECL Article 9:309" (2003). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp82.html#er› .

 695. Supra. note 7, p. 346.

 696. Supra. note 19, p. 106.

 697. Supra. note 79.

 698. Supra. note 80, Comment 3. In this respect, it is also to be noted that Enderlein and Maskow hold that what is at issue in regard to the obligation to restitute the goods is exact restitution of the delivered goods. Obligations cannot be fulfilled by delivering substitute goods as Tallon believes. Typically, the buyer will withdraw from a contract on goods which have already been delivered and taken by him on grounds of non-conformity of the goods, and then, only those goods will have to be restituted. (Supra. note 83.)

 699. Supra. note 82.

 700. Supra. note 80, Comment 4.

 701. See Hans G. Leser, Annotations 1-29 on Article 82, in Peter Schlechtriem, ed., COMMENTARY ON THE UN CONVENTION ON THE INTERNATIONAL SALE OF GOODS (1998); p. 644.

 702. Supra. note 80, Comment 5.

 703. Supra. note 83.

 704. Supra. note 81.

 705. Supra. note 83.

 706. Supra. note 4, Comment 10.

 707. Supra. note 83.

 708. Supra. note 50.

 709. Comment 2 on Art. 7.3.6 UPICC.

 710. Supra. note 81.

 711. Supra. note 12, Comment A.

 712. Supra. note 12, Comment B.

 713. Supra. note 81.

 714. Supra. note 54.

 715. Supra. note 81.

 716. Supra. notes 2, 81.

 717. Ibid.

 718. Supra. note 54.

 719. Supra. note 2.

 720. Comment 3 on Art. 7.3.6 UPICC; supra. note 61, Comment H.

 721. Supra. note 14.

 722. Comment 3 on Art. 7.3.6 UPICC.

 723. Supra. note 54, Comments C; note 61, Comment D.

 724. See editorial remarks by Albert H. Kritzer on CISG Art. 74. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp74.html

 725. See Saphire Award, ILR (1967); p. 185. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 261600.

 726. See Comment 1 on Art. 7.4.1 UPICC. However, one should note that some of the acts described to be obligations under the CISG are nothing but mere incumbencies whose non-performance does not entail the right to claim damages but results in a loss of rights (like the obligation to examine the goods and the buyer's obligation to give notice under Arts. 38 and 39.)

 727. See Comment and Notes to the PECL: Art. 9:501. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp74.html

 728. Supra. note 3.

 729. Supra. note 4, Comment B.

 730. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 298. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html› The right to damages may arise not only in the context of non-performance of the contract, but also during the pre-contractual period. See, for instance, under the UNIDROIT Principles Art. 2.15 in case of negotiations in bad faith, Art. 2.16 in the event of breach of the duty of confidentiality, or Art. 3.18 in the case of mistake, fraud, threat or gross disparity. (See Comment 3 on Art. 7.4.1 UPICC) However, theses issues don't fall within my discussion in this PART.

 731. See Comment 2 on Art. 7.4.1 UPICC.

 732. Supra. note 2.

 733. See Secretariat Commentary on Art. 70 of the 1978 Draft [draft counterpart of CISG Art. 74], Comment 3. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-74.html

 734. Ibid., Comment 4. The Secretariat Commentary goes on to discuss two common situations which might arise under Art. 74 and suggests means of calculating "the loss ... suffered ... as a consequence of the breach" as: Where the breach by the buyer occurs before the seller has manufactured or procured the goods, article 70 [draft counterpart of CISG article 74] would permit the seller to recover the profit which he would have made on the contract plus any expenses which he had incurred in the performance of the contract. The profit lost because of the buyer's breach includes any contribution to overhead which would have resulted from the performance of the contract. (Comment 5) Where the seller delivers and the buyer retains defective goods [If the delivery of the defective goods constituted a fundamental breach of contract, the buyer could avoid the contract. In such a case he would measure his damages under Art. 75 or 76 to the extent that those articles were applicable.], the loss suffered by the buyer might be measured in a number of different ways. If the buyer is able to cure the defect, his loss would often equal the cost of the repairs. If the goods delivered were machine tools, the buyer's loss might also include the loss resulting from lowered production during the period the tools could not be used. (Commentary 6) If the goods delivered had a recognized value which fluctuated, the loss to the buyer would be equal to the difference between the value of the goods as they exist and the value the goods would have had if they had been as stipulated in the contract [Art. 74 gives no indication of the time and place at which "the loss" to the injured party should be measured. Presumably it should be at the place the seller delivered the goods and at an appropriate point of time, such as the moment the goods were delivered, the moment the buyer learned of the non-conformity of the goods or the moment that it became clear that the non-conformity would not be remedied by the seller under Art. 37, 46, 47 or 48, as the case may be.]. Since this formula is intended to restore him to the economic position he would have been in if the contract had been performed properly, the contract price of the goods is not an element in the calculation of the damages. To the amount as calculated above there may be additional damages, such as those arising out of additional expenses incurred as a result of the breach. (Commentary 7)

 735. See Comment 1 on Art. 7.4.2 UPICC.

 736. See Comment and Notes to the PECL: Art. 9:502. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp74.html

 737. Supra. note 10.

 738. Supra. note 3.

 739. Supra. note 4, Comment D.

 740. See P.D.V. Marsh, Comparative Contract Law: England, France, Germany, Gower Publishing (1994); p. 313.

 741. See Comment 4 on Art. 7.4.2 UPICC.

 742. See Djakhongir Saidov in "Methods of Limiting Damages under the Vienna Convention on the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/saidov.html

 743. See Farnsworth in "Damages and Specific Relief": 27 Am. J. Comp. L.(1979); p. 249. (Cf. Jeffrey S. Sutton in "Measuring Damages Under the United Nations Convention on the International Sale of Goods"; 50 Ohio State Law Journal (1989); n. 61. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sutton.html)

 744. Supra. note 17.

 745. See Comment 2 on Art. 7.4.2 UPICC.

 746. Supra. note 13, Comment B.

 747. Supra. note 4, Comment F.

 748. Supra. note 4, Note 5.

 749. Supra. note 19.

 750. See Comment 5 on Art. 7.4.2 UPICC.

 751. Supra. note 19.

 752. Supra. note 4, Note 4.

 753. Supra. note 27.

 754. See Sieg Eiselen in "Remarks on the Manner in which the UNIDROIT Principles of International Commercial Contracts May Be Used to Interpret or Supplement Article 74 of the CISG" (2002). Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni74.htmlEiselen further states that the provisions of Art. 74 CISG are reflected in Arts. 7.4.1 and 7.4.2 of the UNIDROIT Principles. In Art. 7.4.2 of the UNIDROIT Principles the emphasis is on full compensation for harm sustained as a result of breach. The wording "harm sustained" in the UNIDROIT Principles is probably wider than the words "a sum equal to the loss suffered" in the CISG reflecting the difference in approach to personal injuries discussed above. In case of doubt the interpretation of Art. 74 CISG should also lean toward full compensation for harm as far as harm has not been excluded from the scope of the CISG by Art. 5.

 755. Supa note 19. However, hardly can such losses be proved, let alone the establishment of foreseeability, causal link and certainty (if applicable). In practice, the damages for loss of (injury to) reputation in itself will hardly be recoverable because of the difficulty of proof and meeting the requirements of Art. 74 CISG.

 756. Supra. note 13, Note 4.

 757. See Treitel, G.H. in "Remedies for Breach of Contract": David/von Mehren eds., International Encyclopedia of Comparative Law, Bd. VII, Tübingen (1976); p. 25. TLDB Document ID: 117200.

 758. See Comment 3 on Art. 7.4.2 UPICC.

 759. Supra. note 13, Comment C.

 760. Supra. note 12.

 761. Supra. note 4. However, some legal systems, e.g., Anglo-American law, sometimes award nominal damages -- a symbolic compensation even if the aggrieved party has not suffered any loss.

 762. Art. 432 of Contract Code Drawn upon on behalf of the English Law Commission. TLDB Document ID: 450200.

 763. See Treitel, Remedies for Breach of Contract: A Comparative Account, (1988); p. 76. Treitel submits that the full compensation of the expectation and reliance interests would operate either as too strong a disincentive to the assumption of contractual obligations, or to an undue raising of charges to cover such unlimited liability.

 764. The theory of "adequate causation" holds that a wrongdoer is liable for a loss if his default appreciably increased the objective possibility of loss of a kind that in fact occurred; on the other hand, he is under no liability if his default was, according to the ordinary course of things, quite indifferent with regard to the consequence which in fact occurred, and only became a condition of the occurrence of the loss as a result of unusual or intervening events. (See Treitel, G.H. in "Remedies for Breach of Contract": David/ von Mehren eds., International Encyclopedia of Comparative Law, Bd. VII, Tübingen (1976); p. 66. Available online at: ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 117200.)

 765. See Djakhongir Saidov in "Methods of Limiting Damages under the Vienna Convention on the International Sale of Goods". (2001) Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/saidov.htmlEnderlein and Maskow also states that: "It is above all the Anglo-American (e.g. 2-715, paragraph 2 UCC) and the French legal families (Article 1150 Code civil) which provide for a limitation of damages by way of foreseeability. Other legal systems come to similar conclusions using the so-called theory of adequacy." (See Fritz Enderlein, Dietrich Maskow, infra. note 8.)

 766. See Tallon, Denis in "Damages, Exemption Clauses, and Penalties": 40 Am.J.Comp.L. (1992); pp. 678-679. TLDB Document ID: 129100. Tallon states in this point: Foreseeability of harm is an interesting topic from a comparative point of view. Certain systems do not possess such a rule because foreseeability is merged with the notion of causality: it is the case of German, Swiss or Dutch law (art. 6-98 NBW). Other systems refer to foreseeability but have a different approach to it, despite superficial similarities. At common law, foreseeability is more or less a question of causality, and Section 2-715(2)(a) of the UCC speaks of "consequential damages." Moreover, according to the rules in Hadley v. Baxendale, foreseeability is a test for remoteness: what was not foreseeable at the time of the contract is a loss too remote to be compensated. And this is why foreseeability is also used in tortious liability. In the civil law countries where foreseeability is one of the criteria, such as in article 1150 of the French Civil Code and article 1125 of the Italian Civil Code, art. 1225 C.Civ. italien, the rule is more refined: foreseeability is a limit to compensation for direct harm; it is an exception to the full compensation principle in favor of the performing party when the latter acted in good faith. The limit does not apply in case of deliberate or grossly negligent non-performance. This stems from the more acute "moralist approach" of the civil law. But there is also an economic justification: a party may estimate in advance the amount of damages to be paid (or for which insurance must be brought). The rule is, by necessity, specific to breaches of contract.

 767. See Peter Schlechtriem, Uniform Sales Law-The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); p. 97. Available online at ‹http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem.html

 768. Several other articles of the CISG further the goal of compensation. For example, Art. 75 stipulates that, a party's substitute purchase or resale after the other's default must be reasonable. Under this rule, a buyer cannot purchase more expensive goods after a breach and claim the difference between the contract price and the substitute price if goods were available at the contract rate.

 769. See Arthur G. Murphey, Jr. in "Consequential Damages in Contracts for the International Sale of Goods and the Legacy of Hadley", 23 Geo. Wash. J. Int'l. L. and Econ. (1989); pp. 415-474. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/murphey.html

 770. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 300. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 771. See Djakhongir Saidov, supra. note 3.

 772. Supra. note 8, p. 301.

 773. See Stoll in "Commentary on the UN Convention on the International Sale of Goods (CISG)", Peter Schlechtriem ed., (Second Edition, 1998); p. 568.

 774. See Knapp, Commentary on the International Sales Law: The 1980 Vienna Sale Convention, Cesare Massimo Bianca and Michael Joachim Bonell eds. (1987); p. 542.

 775. Infra. note 17.

 776. Supra. note 7.

 777. Supra. note 8.

 778. See Treitel, supra. note 1, p. 160. The position is the same in Art. 7.4.4 of the UPICC and Art. 9:503 of the PECL. However, Murphey submits (supra. note 7): "Limiting effective notice to the time of the contracting will not always discourage breaches. For instance, a party may discover at the time he or she decides to breach that losses will be much greater than were 'foreseeable' at the time of contracting. In such a case, a rule which focuses on the time of contracting will be less discouraging than one which focuses on the time of breach. Nevertheless, if the notice time in the C.I.S.G., like the rule in Hadley, discourages most intentional breaches, this author would argue that this is a good result."

 779. See P.D.V. Marsh, Comparative Contract Law: England, France, Germany, Gower Publishing (1994); p. 314.

 780. See Djakhongir Saidov, supra. note 3.

 781. Supra. note 17.

 782. See Djakhongir Saidov, supra. note 3.

 783. Supra. note 10.

 784. Supra. note 12.

 785. See Jeffrey S. Sutton in "Measuring Damages Under the United Nations Convention on the International Sale of Goods": 50 Ohio State Law Journal (1989). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sutton.html

 786. See Djakhongir Saidov, supra. note 3.

 787. Supra. note 7.

 788. See Djakhongir Saidov, supra. note 3.

 789. See e.g., Bundesgerichtsh of 24 October 1979 where the German Supreme Court held that: "The Court of Appeals was also correct that ULIS Article 82 requires a subjective and objective test, that the test can conclusively be met by a showing of trade custom as to foreseeability, and that a survey of persons in the trade is a proper means of determining those facts under Code of Civil Procedure, section 346." Available online at ‹http://cisgw3.law.pace.edu/cases/791024g1.html› (The case was decided on the basis of Art. 82 ULIS, which contained the same rule of foreseeability as provided for in Art. 74 CISG.)

 790. Art. 9 CISG states: "(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. (2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned."

 791. See Djakhongir Saidov, supra. note 3.

 792. Supra. note 7.

 793. Supra. note 12, p. 541.

 794. Supra. note 8, p. 302.

 795. See Djakhongir Saidov, supra. note 3.

 796. Ibid. However, for the sake of practicing, as well as considering their explicit texts and the role played by uniform law instruments in avoiding those confusions caused by so close an inter-connection of these two concepts in different legal systems, one may advisably lay in international commercial disputes everything on the foreseeability rule, unless the applicable law provides otherwise. Moreover, the "international character" of the uniform law instruments such as CISG as well as the need to promote uniformity in its application should prevent domestic courts from embedding a causation requirement into an international dispute seeking damages. In fact, both Art. 74 CISG and Arts. 7.4.2, 7.4.4 UPICC presuppose a sufficient causal link under foreseeability between the non-performance and the harm.

 797. See Sieg Eiselen in "Remarks on the Manner in which the UNIDROIT Principles of International Commercial Contracts May Be Used to Interpret or Supplement Article 74 of the CISG". Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni74.html

 798. See Comment on Art. 7.4.4 UPICC.

 799. See Comment and Notes to the PECL: Art. 9:503. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp74.html

 800. Such a rule could at best be deduced from the underlying general principles of the CISG (Arts. 7(2); 40 and 43(2)).

 801. Supra. note 36.

 802. Supra. note 35.

 803. Supra. note 36.

 804. Supra. note 35.

 805. See Alejandro M. Garro in "The Gap-Filling Role of the UNIDROIT Principles in International Sales Law: Some Comments on the Interplay between the Principles and the CISG": Tulane Law Review, (April 1995); p. 1188.

 806. Supra. note 35.

 807. See Comment 1 on Art. 7.4.3 of UPICC.

 808. See Comment 2 on Art. 7.4.3 of UPICC.

 809. See Djakhongir Saidov, supra. note 3.

 810. Supra. note 35.

 811. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel80.html

 812. See Fouchard, Gaillard, Goldman, International Commercial Arbitration, Emmanuel Gaillard and John Savage ed., The Hague (1999); p. 820. TLDB Document ID: 130600.

 813. See ICC Award No. 6363, YCA 1992, p. 201; TLDB Document ID: 206363. For more on the interpretation of estoppel, see Black, Henry Campell, Black's Law Dictionary, 6th ed., St. Paul (1990); TLDB Document ID: 100700.

 814. See English Court of Exchequer, Cave v. Mills (1862), Hurlstone and Norman, 913 at 927.

 815. Principle No. I.7 of the TLDB List.

 816. See ICJ North Sea Continental Shelf Case, Separate Opinion of Judge Fouad Ammoun, ICJ Rep. (1969); pp. 120-121. TLDB Document ID: 300300.

 817. Supra. note 8, p. 335.

 818. This provision is based on a proposal by the German Democratic Republic. See A.Conf. 97/C.1/L.217 (O.R. 134). This provision resembles ULIS Art. 74 (3) which states: "The relief provided by this Article for one of the parties shall not exclude the avoidance of the contract under some other provision of the present Law or deprive the other party of any right which he has under the present Law to reduce the price, unless the circumstances which entitled the first party to relief were caused by the act of the other party or of some person for whose conduct he was responsible."

 819. See Comments 1, 2 on Art. 7.1.2 UPICC.

 820. See Comment 2 on Art. 7.4.7 UPICC.

 821. See Comment and Notes to the PECL: Art. 1:305. Comment C. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp80.html

 822. See Comment and Notes to the PECL: Art. 9:504. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp74.html

 823. Ibid., Comment B.

 824. See Comment and Notes to the PECL: Art. 8:101. Comment B(iii). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp80.html

 825. Ibid., Note 3.

 826. Supra. note 8, p. 336.

 827. Supra. note 5, p. 105-106.

 828. See Jelena Vilus in "Provisions Common to the Obligations of the Seller and the Buyer": Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1986); p. 256. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/vilus.html

 829. See Comment 1 on Art. 7.1.2 UPICC.

 830. Ibid.

 831. See Comment 1 on Art. 7.4.7 UPICC.

 832. Supra. note 62.

 833. Supra. note 35.

 834. Supra. note 64.

 835. Supra. note 8, pp. 338-339.

 836. Supra. note 12, p. 560.

 837. See Goldman, Berthold in "The Applicable Law: General Principles of Law - the Lex Mercatoria": Lew ed., Contemporary Problems in International Arbitration, London (1986); p. 125. TLDB Document ID: 112400.

 838. See e.g. ICC Award, Case Nos .2103/72, 101 Clunet 902 (1974); 2748/74, 102 Clunet 905 (1975); 2291/75, 103 Clunet 989 (1976); 2520/75, 103 Clunet 992 (1976).

 839. See Mustill, Michael in "The New Lex Mercatoria: The First Twenty-five Years": Arb.Int'l(1988); p. 113. TLDB Document ID: 126900. Also Lowenfeld, Andreas F. in "Lex Mercatoria: An Arbitrator's View": Arb.Int'l (1990); p. 148. TLDB Document ID: 126000.

 840. See Fouchard, Gaillard, Goldman in "International Commercial Arbitration": Emmanuel Gaillard and John Savage ed., The Hague (1999); p. 832. TLDB Document ID: 130600.

 841. See Mustill, supra. note 78, n. 100.

 842. See Rolf Herber in "English Commentary on the UN Convention on the International Sale of Goods (CISG)": Comment on Art. 7, Peter Schlechtriem ed., Oxford (1998). TLDB Document ID: 117900.

 843. First of all, it makes clear that the aggrieved party's duty to mitigate loss includes not only loss of assets (damnum emergens) but also loss of profit (lucrum cessans). The phrase "loss resulting from the breach" appears in the English versions of both the CISG and ULIS. However, a change in the wording of the French versions (la perte . . . resultant de la contravention) (CISG) instead of (la perte subie) (ULIS) is intended to indicate that the aggrieved party is obliged not only to take reasonable measures to mitigate loss which has already occurred, but also to counteract imminent loss. Art. 77, second sentence, clearly lays down that damages cannot be claimed in respect of loss which could have been mitigated by the aggrieved party, while Art. 88 ULIS leaves open the extent to which damages are to be reduced in the event of a failure to observe the requirement to mitigate loss. (Supra. note 11, p. 585.) Art. 88 of the ULIS reads: "The party who relies on a breach of the contract shall adopt all reasonable measures to mitigate the loss resulting from the breach. If he fails to adopt such measures, the party in breach may claim a reduction in the damages."

 844. Art. 73 of the 1978 Draft reads: "The party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount which should have been mitigated." The match-up "indicates that article 73 of the 1978 Draft and CISG article 77 are substantively identical".97 "The only modification to 1978 Draft article 73 were to substitute 'A' for 'The' at the outset and to revise the last clause to read: damages in the amount 'by which the loss' should have been mitigated. The Secretariat Commentary on 1978 Draft article 73 should therefore be relevant to the interpretation of CISG article 77." Thus, to the extent it is relevant to the Official Text, the Secretariat Commentary on Art. 73 of the 1978 Draft is perhaps the most authoritative source one can cite. "It is the closest counterpart to an Official Commentary on the CISG." See the match-up available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-77.html

 845. See Secretariat Commentary on Art. 73 of the 1978 Draft, Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-77.html

 846. See Djakhongir Saidov, supra. note 3.

 847. See Eric C. Schneider in "Measuring Damages under the CISG". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/cross/cross-74.html

 848. See Peter Schlechtriem in "Recent Developments in International Sales Law": 18 Israel L.R. (1983); pp. 320-321.

 849. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel77.html

 850. See Comment 4 on Art. 7.4.7 UPICC.

 851. See Comment 1 on Art. 7.4.8 UPICC.

 852. See Djakhongir Saidov, supra. note 3.

 853. Supra. note 84, Comment 4.

 854. See Overview Comments on Reasonableness by Albert H. Kritzer. Available online at: ‹http://www.cisg.law.pace.edu/cisg/text/reason.html#view› .

 855. E.g., UPICC Arts. 1.8(2), 3.8, 3.9, 3.16, 4.1(2), 4.8(2)(d), 5.4(2), 5.6, 5.7(2), 5.8, 6.1.1(c), 6.1.16, 6.1.17, 7.1.6, 7.1.7, 7.2.2, 7.2.5, 7.3.2, 7.4.6(2), 7.4.8, 7.4.13.

 856. Supra. note 93.

 857. See Comment and Notes to the PECL: Art. 1:302. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/reason.html

 858. See Djakhongir Saidov, supra. note 3.

 859. Supra. note 8, p. 308.

 860. Supra. note 90.

 861. Supra. note 67, p. 252.

 862. See Comment and Notes to the PECL: Art. 9:505. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp77.html

 863. Supra. note 90.

 864. See Djakhongir Saidov, supra. note 3.

 865. See Molineaux, Charles in "Moving Toward a Lex Mercatoria - A Lex Constructionis": 14 J. Int'l Arb.(1997); No. 1, p. 65. TLDB Document ID: 126700.

 866. See Djakhongir Saidov, supra. note 3.

 867. Supra. note 12, p. 561.

 868. See Djakhongir Saidov, supra. note 3.

 869. See Comment 2 on Art. 7.4.8 UPICC.

 870. See Jelena Vilus in "Provisions Common to the Obligations of the Seller and the Buyer", Petar Sarcevic and Paul Volken eds., International Sale of Goods: Dubrovnik Lectures, Oceana (1986); p. 249. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/vilus.html

 871. See Comment 2 on Art. 7.3.5 UPICC.

 872. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); p. 98. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-75.html

 873. See Jeffrey S. Sutton in "Measuring Damages Under the United Nations Convention on the International Sale of Goods"; 50 Ohio State Law Journal, 1989, pp. 737-752. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sutton.html

 874. Supra. note 3, p. 97.

 875. See Stoll in "Commentary on the UN Convention on the International Sale of Goods", Peter Schlechtriem ed. (Oxford 1998); p. 573. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-u-75.html› ULIS, Art. 85 reads: "If the buyer has bought goods in replacement or the seller has resold goods in a reasonable manner, he may recover the difference between the contract price and the price paid for the goods bought in replacement or that obtained by the resale."

 876. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-75.html› Art. 71 of the 1978 Draft reads: "If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction and any further damages recoverable under the provisions of article 70."

 877. See Comment 1 on Art. 7.4.5 UPICC.

 878. See Albert H. Kritzer in "Editorial remarks on the manner in which the UNIDROIT Principles may be used to interpret or supplement CISG Article 75". Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni75.html

 879. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 303. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 880. Supra. note 8.

 881. Supra. note 10.

 882. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel75.html

 883. See Secretariat Commentary on Art. 71 of the 1978 Draft, Comment 3. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-75.html

 884. See Secretariat Commentary on Art. 72 of the 1978 Draft, Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-76.html

 885. See Comment and Notes to the PECL: Art. 9:506. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp75.html

 886. Supra. note 14, Comment 1.

 887. Supra. note 1.

 888. Supra. note 10.

 889. Supra. note 14, Comment 4.

 890. Supra. note 14, Comment 5.

 891. Supra. note 14, Comment 6.

 892. Supra. note 10, p. 304.

 893. See Harry M. Flechtner in "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.", 8 Journal of Law and Commerce(1988); 53-108. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/flecht74,75,76.html

 894. Supra. note 8.

 895. Supra. note 14.

 896. Supra. note 16, Comment B.

 897. Supra. note 1, p. 250.

 898. ULIS treats abstract assessment of damages under the current price rule as having the same standing as concrete assessment of damages under Art. 85 ULIS, so that the promisee is free to choose between those methods of assessment where the goods have a current price. "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. ..."See the match-up available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-u-76.html› Art. 84 ULIS reads: "1. In case of avoidance of the contract, where there is a current price for the goods, damages shall be equal to the difference between the price fixed by the contract and the current price on the date on which the contract is avoided. 2. In calculating the amount of damages under paragraph 1 of this Article, the current price to be taken into account shall be that prevailing in the market in which the transaction took place or, if there is no such current price or if its application is inappropriate, the price in a market which serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods."

 899. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-76.html› Art. 72 of the 1978 Draft reads: "(1)If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 71, recover the difference between the price fixed by the contract and the current price at the time he first had the right to declare the contract avoided and any further damages recoverable under the provisions of article 70. (2)For the purposes of paragraph (1) of this article, the 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 another place which serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods."

 900. See Comment 1 on Art. 7.4.6 UPICC.

 901. Supra. note 10, p. 305.

 902. Supra. note 15, Comment 3.

 903. Supra. note 10, pp. 305-306.

 904. Supra. note 24.

 905. See Comment 1 on Art. 7.4.6 UPICC.

 906. See Knapp, Commentary on the International Sales Law: The 1980 Vienna Sale Convention, Cesare Massimo Bianca and Michael Joachim Bonell eds. (1987) [hereinafter Bianca and Bonell]; p. 557.

 907. Supra. note 3.

 908. The reasons for the adoption of the double test were apparently based on the fact that some delegates felt that the test in the draft article (the time when the aggrieved party first had the right to avoid the contract) was too vague, and because others were concerned that the substitution of the time of actual avoidance might enable the aggrieved party to postpone avoidance to take advantage of a fluctuating market. On the other hand, the time of delivery was not generally suitable either because there might not have been any delivery as in the case of an anticipatory repudiation. Thus the version of art. 76 eventually adopted was regarded as an appropriate compromise. (See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel76.html)

 909. Supra. note 1, pp. 250-251.

 910. Supra. note 32.

 911. Supra. note 3.

 912. Supra. note 10, p. 306.

 913. Supra. note 10, p. 307. On the other hand, an economic disadvantage may result for the buyer because of price movements from the time of the taking over of the goods to the time of avoidance. He may prevent this, however, in carrying out a cover transaction and claiming damages under Art. 75.

 914. Supra. note 1, p. 251.

 915. For example, Schlechtriem submits that: "It is more difficult to justify the second reference point - the 'taking over' of the goods (Article 76(1) sentence 2). In the event of a delayed or non-conforming performance, the buyer who can neither undertake nor prove a definite cover transaction under Article 75 uses the reasonable time period permitted by Article 49(2) at his own risk. In the case of Article 49(2)(b)(i), the reference point actually precedes the moment when the buyer could avoid the contract because the buyer, at that time, still did not know of the breach. The solution is thus difficult to understand." (Supra. note 3.) "Thus this can only be the buyer. To ensure the symmetry of the rights and obligations of both the seller and the buyer the Convention generally uses an abstract language. This is criticized by Hellner who considers it a serious mistake to believe that impartiality could be achieved in establishing identical rules to govern the obligations of both parties and breaches of contract by both sides." (Supra. note 44.)

 916. See J. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention (1982); p. 414.

 917. Supra. note 45.

 918. Supra. note 44.

 919. Supra. note 4.

 920. Supra. note 44.

 921. Supra. note 13.

 922. Supra. note 15, Comment 7.

 923. Supra. note 14, Comment 8; also supra. note 15, Comment 8.

 924. See Comment 2 on Art. 7.4.5 UPICC; see also Comment 3 on Art. 7.4.6 UPICC.

 925. Supra. note 23.

 926. Supra. note 43.

 927. Supra. note 14, Comment 9.

 928. Supra. notes 23, 43.

 929. See Secretariat Commentary on Art. 42 of the 1978 Draft [draft counterpart of CISG Art. 46], Comment 10. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-46.html

 930. See Phanesh Koneru in "The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles". 6 Minnesota Journal of Global Trade (1997); pp. 105-152. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/koneru.html

 931. Supra. note 1.

 932. See Jeffrey S. Sutton in "Measuring Damages Under the United Nations Convention on the International Sale of Goods": 50 Ohio State Law Journal (1989). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sutton.html

 933. See Comment 2 on Art. 7.4.13 UPICC.

 934. Supra. note 2.

 935. See Comment 1 on Art. 7.4.13 UPICC.

 936. Supra. note 5.

 937. See Comment 4 on Art. 7.4.13 UPICC.

 938. Art. 5 of UNCITRAL Uniform Rules on Contract Clauses for an Agreed Sum due Upon Failure of Performance, 1986. Available online at: ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 700400.

 939. Supra. note 5.

 940. TLDB Document ID: 601400.

 941. Art. 6, supra. note 10. Nonetheless, according to Art. 9 of UNCITRAL Uniform Rules, the Parties may derogate from or vary the effect of Art. 6.

 942. See Comment 3 on Art. 7.4.13 UPICC.

 943. Art. 8 of UNCITRAL Uniform Rules, supra. note 10.

 944. Supra. note 5.

 945. See Vikki M. Rogers, Frankfurt in "Attorney's Fees: Is the 'American Rule' Applicable to International Sales Law Cases?": NY State Bar Association New York International Chapter News, Vol. 7 No.1 (Spring 2002); p. 21. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/rogers.html

 946. See Volken, Paul in "Legal Opinions in International Transactions": Sarcevic / Volken eds., International Contracts and Payments, London (1991); p. 125. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 117600.

 947. Although the "loser-pays" principle apparently dominates the civil law jurisdictions of continental Europe, it is worth noting that the two different approaches to the attorney-fees issue do not represent a common law/civil law split: England, the homeland of the common law, has a loser-pays system. Indeed, in the United States the loser-pays approach is usually called "the English rule". (See Harry M. Flechtner, infra. note 8.)

 948. See John Yukio Gotanda in "Awarding Costs and Attorneys' Fees in International Commercial Arbitrations", 21 Mich. J. Int'al L. (1999); p. 1, 10 n. 40.

 949. See Staudinger/Löwisch § 286 No. 53, 13th ed. (1995). Cf. Peter Schlechtriem, infra. note 7.

 950. See Jarno Vanto in "Attorneys' fees as damages in international commercial litigation". Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/vanto1.html

 951. See Peter Schlechtriem in "Case comment: Attorneys' Fees as Part of Recoverable Damages", 14 Pace International Law Review (Spring 2002). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem4.html

 952. See Harry M. Flechtner in "Recovering Attorneys' Fees as Damages under the U.N. Sales Convention: A Case Study on the New International Commercial Practice and the Role of Foreign Case Law in CISG Jurisprudence, with a Post-Script on Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co.", 22 Northwestern Journal of International Law and Business (2002). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/flechtner4.html

 953. Ibid. Flechtner also states: "The United States, however, is not alone in requiring that each party generally bear its own litigation costs. Japan has such a system for contract cases. Thus the two largest economies in the world have adopted this approach for domestic sales transactions."

 954. See Joseph Lookofsky in "Case note: Zapata Hermanos v. Hearthside Baking": 6 Vindobona Journal of International Commercial Law and Arbitration (2002); pp. 27-29. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/lookofsky5.html

 955. See Harry M. Flechtner, supra. note 8.

 956. These decisions include: Decision of April 28, 1993, Landgericht Krefeld (Germany), No. 110 210/92, affirmed in part and reversed in part in Decision of January 14, 1994, Oberlandesgericht Düsseldorf (Germany), No. 17 U 146/93, English Abstracts appearing in CLOUT, available online at ‹http://cisgw3.law.pace.edu/cases/940114g1.html› ; Decision of May 12, 1995, Amtsgericht [Lower Court] Alsfeld, 12 May 1995, 31 C 534/94, case presentation available at ‹http://cisgw3.law.pace.edu/cases/950512g1.html› ; Decision of March 21, 1996, Schiedsgericht der Handelskammer Hamburg (Germany), abstracted in English as part of CLOUT Abstract no. 166, available at ‹http://cisgw3.law.pace.edu/cases/960621g1.html› ; Decision of December 19, 1997, Handelsgericht des Kantons Aargau (Switzerland), No. OR.97.00056, English abstract available in CLOUT (abstract no. 254), available online at ‹http://cisgw3.law.pace.edu/cases/971219s1.html› ; Amtsgericht [Lower Court] Viechtach, 11 April 2002, 1 C 419/01, case presentation and English translation available at ‹http://cisgw3.law.pace.edu/cases/020411g1.html

 957. Zapata Hermanos Sucesores v. Hearthside Baking Co., U.S. District Court, 28 August 2001. Available online at ‹http://cisgw3.law.pace.edu/cases/010828u1.html

 958. See Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co. Inc., etc. Nos. 01-3402, 02-1867,02-1915, The United States Court of Appeals for the Seventh Circuit, November 19, 2002. Available online at ‹http://cisgw3.law.pace.edu/cases/021119u1.html

 959. See Jarno Vanto, supra. note 6.

 960. See Harry M. Flechtner, supra. note 8.

 961. Ibid. On the contrary, another commentator states: "To regard the award of such fees as a procedural issue to be settled by reference to either the lex fori or the otherwise applicable domestic law instead, goes against the plain meaning of the Convention's language and intent, as well as the available international jurisprudence." (See John Felemegas in "The award of counsel's fees under Article 74 CISG, in Zapata Hermanos Sucesores v. Hearthside Baking Co.(2001)", 6 Vindobona Journal of International Commercial Law and Arbitration (2002); p. 39. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/felemegas1.html)

 962. See Joseph Lookofsky, supra. note 10. The decision, however, deserves the greatest attention. "The case has garnered major attention based on the amount of comments on it. The reason possibly is because the case emanates from the United States, a jurisdiction which so far does not have a large CISG jurisprudence but whose rulings resonate throughout the commercial community." (See Jarno Vanto, supra. note 6.)

 963. Supra. note 1.

 964. Supra. note 14.

 965. Even though, the court or arbitral tribunal must calculate that loss in the manner that is best suited to the circumstances. This means that if attorneys' fees are to be allowed under Art. 74, this happens through submission of the facts of the case under the norm in which the facts assume their meaning, i.e., interpretation. (See Jarno Vanto, supra. note 6.)

 966. See Alan F. Zoccolillo, Jr. in "Determination of the Interest Rate under the 1980 United Nations Convention on Contracts for the International Sale of Goods: General Principles vs. National Law": 1 Vindobona Journal of International Commercial Law and Arbitration (1997); pp. 3-43. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/zoccolillo.html

 967. Ibid.

 968. See Gotanda, John Y. in "Awarding Interest in International Arbitration", 90 AJIL (1996); pp. 41-42. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 123400.

 969. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods". Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel78.html

 970. With regard to the awarding of interest, Gotanda submits that: The practice of awarding interest as an element of damages is well established among the countries in Europe. Countries in North and South America generally authorize the awarding of interest to compensate a party for the loss of the use of money. Like their European and North and South American counterparts, Asian countries, such as China, India, Japan and the Republic of Korea, generally allow interest to be paid when a debtor defaults on a money payment. Several countries do not allow interest as part of an arbitral award. Most of these countries are in the Middle East and Africa, and have legal systems based on Shari'a (Islamic law). The Shari'a is based on the teachings of the Koran, Islam's holy book, which expressly prohibits the taking of interest, or riba. Some Islamic countries, such as Egypt, have moved away from Shari'a toward more Western-style legal systems. In these countries, either the payment of interest is expressly permitted in certain circumstances or a similar fee is allowed as a "service" or as "administrative" costs. Other countries, such as Iran, have adopted fundamentalist Islamic law, which strictly adheres to the Shari'a principles, including the prohibition against the taking of interest. Even in Iran, however, there is a limited exception to this prohibition. (Supra. note 3, pp. 42-50.)

 971. See Lauterpacht, Hersch, Private Law Sources and Analogies of International Law, New York, Toronto (1927); p. 145. TLDB Document ID: 104200.

 972. See Comment 1 on UPICC Art. 7.4.9.

 973. See Volker Behr in "The Sales Convention in Europe: From Problems in Drafting to Problems in Practice": 17 Journal of Law and Commerce (1998); p. 268. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/behr.html

 974. See ICC Award No. 9333, 10 ICC Bull. No. 2, 1999, p. 103. TLDB Document ID: 209333.

 975. Supra. note 8, p. 283. For instance, in Germany, the general rate of legal interest is 4% (Section 288 BGB), as compared to 5% when the parties are businessmen and interest arises from commercial transactions (Section 353 HGB). The situation is now, or at least until recently, not much better in some other European countries. Obviously, plaintiffs -- generally unpaid sellers -- want to recover interest at higher rates.

 976. See Phanesh Koneru in "A General Review of Interest Issues Under the CISG Citing the Ruling in this Case and other CISG Cases": CISG Case Presentation (Oct. 12, 1997); p. 11. Available online at ‹http://cisgw3.law.pace.edu/cisg/wais/db/cases2/927585il.html

 977. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 311. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 978. See Dionysios P. Flambouras in "The Doctrines of Impossibility of Performance and clausula rebus sic stantibus in the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law: A Comparative Analysis": 13 Pace International Law Review(Fall 2001); p. 282. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/flambouras1.html

 979. Supra. note 7.

 980. Supra. note 13.

 981. See Comment and Notes to the PECL: Art. 9:508. Comment B. Available online at .html

 982. See Franco Ferrari in "Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing": 15 Journal of Law and Commerce(1995); pp. 1-126. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/2ferrari.html

 983. See/{T.S. Twibell}/ in "Implementation of the United Nations Convention on Contracts for the International Sale of Goods (CISG) under Shari'a Law: Will Article 78 of the CISG Be Enforced When the Forum Is an Islamic State?": 9 International Legal Perspectives(1997); p. 71. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/twibell.html

 984. See Peter Schlechtriem in "Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods", Published by Manz, Vienna: 1986, p. 100. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-78.html

 985. See Eric C. Schneider in "Measuring Damages under the CISG", available online at ‹http://www.cisg.law.pace.edu/cisg/text/cross/cross-74.html

 986. Supra. note 19.

 987. Supra. note 12, p. 315.

 988. See Christian Thiele in "Interest on Damages and Rate of Interest Under Article 78 of the U.N. Convention on Contracts for the International Sale of Goods": 2 Vindobona Journal of International Commercial Law and Arbitration (1998); pp. 3-35. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/thiele.html

 989. See Comment 3 on UPICC Art. 7.4.9.

 990. Supra. note 16, Comment C.

 991. Supra. note 12, p. 313.

 992. Supra. note 23.

 993. Supra. note 16.

 994. See Comment on UPICC Art. 7.4.10.

 995. Supra. note 23.

 996. Supra. note 12, p. 314.

 997. Supra. note 26.

 998. Supra. note 12, p. 349.

 999. Supra. note 12, p. 316.

 1000. Supra. note 33.

 1001. Supra. note 16, Note 1.

 1002. Supra. note 12, p. 312.

 1003. See Jeffrey S. Sutton in "Measuring Damages Under the United Nations Convention on the International Sale of Goods": 50 Ohio State Law Journal (1989); pp. 737-752. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/sutton.html

 1004. Supra. note 37.

 1005. See Franco Ferrari in "Uniform Application and Interest Rates Under the Vienna Sales Convention": 24 GA. J. Int'l and Comp. L.; p. 471. Indeed, the solutions to the same problem can widely differ from each other depending on whether they were perceived as gaps intra legem or praeter legem. Undoubtedly, the setting forth of a criterion to be used to decide whether a gap must be considered a lacuna intra legem or praeter legem would have favored the uniform application of the Convention. However, the CISG does not set forth any useful criterion to determine in concreto when a gap is to be considered as being a lacuna praeter legem as opposed to a lacuna intra legem. This will be evidenced by the different solutions proposed in relation to the issue of what formula should be used to calculate the rate of interest in international sales contracts. The absence of such guidance raises the question of whether the issue of determining the rate of interest has to be dealt with as a matter governed by the Convention, but not expressly settled in it (lacuna praeter legem), or as one excluded from the sphere of application of the Convention (lacuna intra legem).(See Franco Ferrari in "Uniform Application and Interest Rates Under the 1980 Vienna Sales Convention": Cornell Review of the Convention on Contracts for the International Sale of Goods (1995); pp. 3-19. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/1ferrari.html)

 1006. Supra. note 1.

 1007. Supra. note 17.

 1008. ICC Arbitration Case No. 8128 of 1995. Available online at ‹http://www.cisg.law.pace.edu/cisg/wais/db/cases2/958128i1.html

 1009. See Albert H. Kritzer in "Editorial remarks on the manner in which the UNIDROIT Principles may be used to interpret or supplement CISG Article 78". Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni78.htmlSee e.g., ‹http://cisgw3.law.pace.edu/cases/940615a4.html› Vienna Arbitration proceeding SCH-4318 of 14 June and ‹http://cisgw3.law.pace.edu/cases/940615a3.html› Vienna Arbitration proceeding SCH-4366 of 14 June 1994.

 1010. See Comment 2 on UPICC Art. 7.4.9.

 1011. Supra. note 1.

 1012. Supra. note 16.

 1013. See Nassar, Nagla, Sanctity of Contracts Revisited, Dordrecht, Boston, London (1995); p. 193. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 105700.

 1014. See Tom Southerington in "Impossibility of Performance and Other Excuses in International Trade": Tuula Ämmälä ed., Publication of the Faculty of Law of the University of Turku, Private law publication series B:55 (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/southerington.html

 1015. See Sarah Howard Jenkins in "Exemption for Nonperformance: UCC, CISG, UNIDROIT Principles -- A Comparative Assessment": 72 Tulane Law Review (1998); pp. 2017-2020. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jenkins.htmlSee also, Joseph M. Perillo: All contracts involve risks. Some contracts are almost purely aleatory. If one sells shares of stock on the stock exchange that one does not have -- the so-called "short sale" -- it is a contract of pure risk and I can conceive no circumstance (absent fraud or the like) in which a court should relieve the seller or buyer from a total loss even if unexpected and unforeseeable events disrupted the market. On the other hand, in the more typical contract involving the sale of goods or services, or the rental of real estate, each party expects to gain from the contract and each party understands that the other party also expects to gain. In such contracts, neither party expects to gain from the other's loss, although both realize that such an imbalance may occur. In the common law, several kinds of events produce an almost automatic excuse for nonperformance: death of a person who is to personally perform, supervening illegality of a performance, and the destruction of the subject matter. When one goes beyond these three categories, relief is most justified if unexpected events inflict a loss on one party and provide a windfall gain for the other or where the excuse would save one party from an unexpected loss while leaving the other party in a position no worse than it would have without the contract. (Infra. note 14, pp. 119-120.)

 1016. See Katsumoto, M. in "Kigyo no torihikihippaku to jijohenko no gensoku": NBL No. 55 (1974); p. 9. Impossibility is appropriately seen as an extreme example of changed circumstances.

 1017. See van Houtte, Hans in "Changed Circumstances and Pacta Sunt Servanda": Gaillard ed., Transnational Rules in International Commercial Arbitration, ICC Publ. Nr. 480,4, Paris (1993); p. 116. TLDB Document ID: 117300.

 1018. See Puelinckx, A.H. in "Frustration, Hardship, Force Majeure, Imprévision, Wegfall der Geschäftsgrundlage, Unmöglichkeit, Changed Circumstances": 3 J.Int'l Arb. No. 2 (1986); p. 64. TLDB Document ID: 128100.

 1019. Several classifications of impossibility have been introduced in the literature. Their value would seem to be in distinguishing different kinds of situations from another where the legal consequences of impossibility should be different. Often a distinction has been made between initial (pre-existing, original) and subsequent (intervening) impossibility. Initial impossibility refers to a situation where performance has been impossible already at the moment the contract was concluded, whereas subsequent impossibility refers to situations where performance was initially possible but became impossible after the conclusion of the contract. The division of impossibility into initial and subsequent seems to be useful since different kinds of solutions have been introduced to manage some of these situations. Initial impossibility may, for example, lead to the use of rules related to mistake or perhaps fraud and subsequent impossibility to the rules on frustration. (Supra. note 2.) Both the UNIDROIT Principles and the European Principles deal with such initial impossibility, respectively in Arts. 3.3 and 4:102, but such initial impossibility seems to be more appropriately related to the invalidity of contract caused by the defects of content, which is not covered under the CISG, rather than non-performance issue.

 1020. Supra. note 6, p. 47.

 1021. See Maskow, Dietrich in "Hardship and Force Majeure": 40 Am.J.Comp.L. (1992); p. 658. TLDB Document ID: 126400.

 1022. Sapphire v. National Iranian Oil Company award, March 15, 1963, I.L.R. (1967); 136 at 181. See also supra. note 5, p. 107.

 1023. See e.g., I.C.C. award No. 3383 (1979), Yb. Comm. Arb., 1982, 119 at 129; J.D.I., 1980, 978 at 981; I.C.C. award No. 5485 (1987), Yb. Comm. Arb., 1989, 156 at 168. One could contend that this has nothing to do with lex mercatoria, since this principle is embodied in practically all municipal legislations (however, not without differences as to its strength, and consequently as to its effects). It is to be noted, nevertheless, that very frequently, when they apply pacta sunt servanda arbitrators do not refer to a particular municipal legislation; they see the principle as a general one, which means that it is applied as an element of the lex mercatoria, and therefore, that its actual consequences are not to be taken from any municipal law whatsoever. (See J. Kunz in "The Problem of Revision in International Law": American Journal on International Law, Vol. 33 (1939), p. 42; and "The Meaning and Range of the Norm Pacta Sunt Servanda": American Journal on International Law, Vol. 39 (1945), p. 197. (Cf. Zakariya, Hasan in "Changed Circumstances and the Continued Validity of Mineral Development Contracts": Hossain ed., Legal Aspects of the New International Economic Order, London, New York (1980); at 263 et seq. TLDB Document ID: 118400.))

 1024. See Clive M. Schmitthoff, Schmitthoff's Export Trade, 8 ed. (1986); p. 146.

 1025. This situation is unlikely to arise with short-term contracts, which often exhibit a simple structure where non-performances are exchanged for money. In international trade, however, many contracts are of a more complicated structure, and even if they are not long-term contracts, they frequently exist over a substantive period. International trade transactions generally imply a greater element of uncertainty because they are subject to political and economic influences in foreign countries. (See Horn in "Die Anpassung langfristiger Vertrage im internationalen Wirtschaftsverkehr": kotz 9, v. Bieberstein ed. (1984).)

 1026. See Joseph M. Perillo in "Force Majeure and Hardship under the UNIDROIT Principles of International Commercial Contracts": Contratación internacional. Comentarios a los Principios sobre los Contratos Comerciales Internacionales del Unidroit, Universidad Nacional Autónoma de México - Universidad Panamericana (1998); p. 118. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/perillo3.html

 1027. See Brownlie, Ian, Principles of Public International Law, 4th ed., Oxford (1990); p. 620. TLDB Document ID: 100900. It is to be mentioned that some jurists dislike the doctrine, regarding it as a primary source of insecurity of obligations, more especially in the absence of a system of compulsory jurisdiction.

 1028. See Lissitzyn, Treaties and Changed Circumstanees, 61 AM. J. INT'L L(1967); pp. 895, 896. (Cf. Dickstein, Michael E. in "Revitalizing the International Law Governing Concession Agreements": 5/6 Int'l Tax and Bus. Lawy. (1987/88), at 75 et seq. TLDB Document ID: 121800.)

 1029. See Goldman, Berthold in "The Applicable Law: General Principles of Law - the Lex Mercatoria": Lew ed., Contemporary Problems in International Arbitration, London (1986); p. 125. TLDB Document ID: 112400.

 1030. See Zimmermann, Reinhard, The Law of Obligations: Roman Foundations of the Civilian Tradition, Munich Cape Town (1990); p. 579. TLDB Document ID: 109600.

 1031. ICC Award No. 1512, YCA (1976); p. 129. TLDB Document ID: 201512.

 1032. See e.g., Anaconda-Iran, Inc. v. Iran (1986 IV) 13 Iran-U.S.C.T.R. 199, pp. 211-212; INA Corporation v. Iran (1985 I) 8 Iran-U.S.C.T.R. 373, p. 441; QuesTech, Inc. v. Iran(1985 II) 9 Iran-U.S.C.T.R. 107, p. 120; Mobil Oil Iran (1987 III) 16 Iran-U.S.C.T.R. 3, p. 39; ICC award in case no. 5277, French Contractor v. Ministry of Irrigation of African Country X (1988) 13 Yb. Comm. Arb. 80.

 1033. Supra. note 18.

 1034. See Horn, Norbert in "Changes in Circumstances and the Revision of Contracts in Some European Laws and in International Law": Horn ed., Adaptation and Renegotiation of Contracts in International Trade and Finance, Antwerp, Boston, London, Frankfurt a.M. (1985); p. 17. TLDB Document ID: 113700.

 1035. Supra. note 2.

 1036. Supra. note 14, p. 116.

 1037. See Joern Rimke in "Force majeure and hardship: Application in international trade practice with specific regard to the CISG and the UNIDROIT Principles of International Commercial Contracts": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 199. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/rimke.html

 1038. Supra. note 1, pp. 194-195.

 1039. Supra. note 5, p. 113.

 1040. See. J. Lauritzen A.S. v. Wijsmuller B.V. in "The Super Servant Two": 1 Llovd's Rep. (1990); p. 1. Also see E. McKENDRICK, Force Maieure and Frustration of Contracts, Lloyds London (1991).

 1041. Supra. note 1, p. 196.

 1042. Supra. note 27.

 1043. Supra. note 5, p. 114.

 1044. Supra. note 1, p. 198.

 1045. Supra. note 27.

 1046. Supra. note 1, pp. 196-197.

 1047. Supra. note 31.

 1048. See J. Westberg in "Contract Excuse in International Business Transactions: Awards of the Iran-U.S. Claims Tribunal": 4 ICSID Review (1989); p. 215.

 1049. Supra. note 25, pp. 197-198.

 1050. See Sornarajah, M., International Commercial Arbitration, Singapore (1990); p. 261. TLDB Document ID: 108700.

 1051. Supra. note 1, p. 200. The International Court of Justice has, on several occasions, examined the principle of fundamental change of circumstances, but has never outlined its exact scope and definition. In the Free Zones of Upper Savoy and the District of Gex, as well as the Fisheries Jurisdiction Case, the Court recognized the existence of the doctrine of rebus sic stantibus in principle, but held that it did not apply to the facts at hand.

 1052. Supra. note 5, p. 107.

 1053. See Rivkin, David R. in "Lex Mercatoria and Force majeure": Gaillard ed., Transnational Rules in International Commercial Arbitration, ICC Publ Nr. 480,4, Paris (1993); p. 165. TLDB Document ID: 116100.

 1054. Supra. note 38.

 1055. Supra. note 22, p. 25.

 1056. See Iran-US Claims Tribunal, Questech Inc. v. Iran, 9 IRAN-U.S. C.T.R. 9 - 122. TLDB Document ID: 231400.

 1057. Supra. note 1, p. 200. However, the Iran-US Claims Tribunal also comments that, in view of wider and narrower formulations of the clausula in different legal systems and of certain differences in its practical application, it would not be easy to establish a common core of such a General principle of law. (Supra. note 44)

 1058. Supra. note 20.

 1059. Supra. note 1, pp. 201-203.

 1060. Supra. note 1, p. 203.

 1061. Supra. note 22.

 1062. See Melis, Werner in "Force Majeure and Hardship Clauses in International Commercial Contracts in View of the Practices of the ICC Court of Arbitration": 1 J.Int'l Arb. (1984); p. 215. TLDB Document ID: 126600.

 1063. See Ugo Draetta in "Force Majeure Clauses in International Trade Practice": 5 Int'l Bus. L. J.(1996); p. 547.

 1064. Supra. note 2.

 1065. See, e.g., The Oxford Companion to Law (1980); p. 478; see also James Stroud's Judicional Dictionary II (1986); p. 1008.

 1066. See, e.g., Case 266/84 (1987) 3 CMLR 202, p. 223 ((1986) ECR 149).

 1067. See e.g., Case 158-73, ECR (1974) 101; Case 4-68, ECR (1968) 549.

 1068. Supra. note 50.

 1069. Supra. note 2.

 1070. See Wouter Den Haerynck in "Drafting Hardship Clauses in International Contracts": Structuring International Contracts, Dennis Campbell ed. (1996); pp. 231-232.

 1071. Supra. note 2.

 1072. See Clive M. Schmitthoff in "Hardship and Intervener Clauses": J. Bus. L. (1980). 82 at 85.

 1073. See Comment 1 on Art. 6.2.2 UPICC.

 1074. Supra. note 2.

 1075. Supra. note 22, p. 27.

 1076. Supra. note 25, p. 242.

 1077. Supra. note 9, pp. 663-664; see also supra. note 24, pp. 201-202.

 1078. Supra. note 64.

 1079. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods"(1981). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel79.html

 1080. Supra. note 41, pp. 200-201.

 1081. Supra. note 25, pp. 242-243.

 1082. See Comment 1 on Art. 7.1.7 UPICC.

 1083. Paras. (a) and (b) of UPICC Art. 7.2.2 deal with impossibility and unreasonable burden respectively. Para. (c) requires that the obligee has a legitimate interest to demand performance. This rule could be seen as an expression of the principle of good faith or loyalty. It can also be seen to be directed towards a fair choice of remedies: where performance may reasonably be obtained elsewhere, the obligor's liability in damages is adequate to protect the obligee's interests. Para. (d) can be understood in conjunction with the laws, principles and international treaties on human rights: in many countries a person cannot be forced to work involuntarily. By contrast, Art. 7.2.1, which gives the obligee the right to require payment, does not contain any such grounds, so the party may only be exempted under the force majeure rule. (For more details in this regard, see the discussion in Chapter 3.)

 1084. See Comment 6 on Art. 6.2.2 UPICC.

 1085. Supra. note 2.

 1086. Ibid.

 1087. In such circumstances, the creditor may not proceed with his performance and recover the payments due if he could have made a reasonable cover transaction without significant effort or expense, or if performance would be unreasonable in the circumstances. In other words, the creditor must have a legitimate interest in the performance in cases where the debtor no longer is willing to accept the performance. (For more details in this regard, see the discussion in Chapter 3.)

 1088. Supra. note 2.

 1089. On the other hand, it is submitted that it may in many situations be artificial to require renegotiations from the parties. This may also cause unnecessary uncertainty. Furthermore, this may cause additional costs and take time, which may be against both of the parties' interests. Moreover, the possibility to compel a party to negotiate by the risk of liability in damages might easily be abused despite of the obligations of good faith and co-operation. (Supra. note 2.)

 1090. See Iran-US Claims Tribunal, Anaconda Iran Ltd. v. Iran, 13 IRAN-U.S. C.T.R. 1986 - 199 et seq. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 231800.

 1091. See Albert H. Kritzer, International Contract Manual - Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods-Detailed Analysis 623 (1994).

 1092. See Dionysios Flambouras in "Comparative Remarks on CISG Article 79 and PECL Articles 6:111, 8:108". (2002) Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp79.html

 1093. Another one is Art. 80, which reads: "A party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first party's act or omission."

 1094. ULIS Art. 74 reads as follows: " 1 Where one of the parties has not performed one of his obligations, he shall not be liable for such non-performance if he can prove that it was due to circumstances which, according to the intention of the parties at the time of the conclusion of the contract, he was not bound to take into account or to avoid or to overcome; in the absence of any expression of the intention of the parties, regard shall be had to what reasonable persons in the same situation would have intended. 2 Where the circumstances which gave rise to the non-performance of the obligation constituted only a temporary impediment to performance, the party in default shall nevertheless be permanently relieved of his obligation if, by reason of the delay, performance would be so radically changed as to amount to the performance of an obligation quite different from that contemplated by the contract. 3 The relief provided by this Article for one of the parties shall not exclude the avoidance of the contract under some other provision of the present Law or deprive the other party of any right which he has under the present Law to reduce the price, unless the circumstances which entitled the first party to relief were caused by the act of the other party or of some person for whose conduct he was responsible."

 1095. Two concepts are used which Maskow calls shortly the fault principle and the exemption principle, the first being more or less characteristic of the continental law, the second of the common law. While according to the fault principle a party is only liable if it has committed a fault, according to the exemption principle the party which has committed a breach is held to be liable, unless it can establish reasons for exemption. In general, this would lead to opposite the burden of proof, but, in certain cases, also under the fault principle, the party in breach has to prove its innocence. As far as the practical is concerned it is well known that the two principles do not greatly differ. This is partially due to the fact that a party can best prove its lack of fault, if it can establish exemptions. The CISG, the most important international document in contract law, uses the exemption principle. Interpretations which try to make clear that the fault principle is implemented in the CISG do not correspond to reality. (See Maskow, Dietrich, infra. note 11.)

 1096. Supra. note 2.

 1097. See Jacob S. Ziegel in "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods" (1981). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/ziegel79.html

 1098. See Secretariat Commentary on Art. 65 of the 1978 Draft [draft counterpart of CISG Art. 79], Comment 1. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-79.html

 1099. See Barry Nicholas in "force majeure and Frustration": 27 American Journal of Comparative Law(1979); pp. 231-245. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/nicholas.html› [This is a commentary on the counterpart to force majeure contained in Art. 65 of the 1978 Draft Convention. It is to be noted that, the match-up indicates that para. (3) of Art. 65 of the 1978 Draft and para. (3) of CISG Art. 79 reflect a change which can be significant under certain circumstances. The remainder of the paragraphs of these articles are substantively the same. See the match-up available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-79.html]

 1100. See Maskow, Dietrich in "Hardship and Force Majeure": 40 Am.J.Comp.L. (1992); p. 664. TLDB Document ID: 126400.

 1101. See Hartkamp, Arthur in "The UNIDROIT Principles For International Commercial Contracts and the United Nations Convention on Contracts for the International Sale of Goods": Boele-Woelki/Grosheide/Hondius/Steenhoff eds., Comparability and Evaluation, Dordrecht, Boston, London (1994); p. 95. TLDB Document ID: 113000.

 1102. Ibid., p. 96.

 1103. See Joern Rimke in "Force majeure and hardship: Application in international trade practice with specific regard to the CISG and the UNIDROIT Principles of International Commercial Contracts": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 238. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/rimke.html

 1104. See Comment and Notes to the PECL: Art. 8:108. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp79.html

 1105. See Sylvette Guillemard in "A comparative study of the UNIDROIT Principles and the Principles of European Contracts and some dispositions of the CISG applicable to the formation of international contracts from the perspective of harmonisation of law": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 83-113. Available online at ‹http://cisgw3.law.pace.edu/cisg/biblio/guillemard1.html

 1106. Supra. note 15, Comment B.

 1107. See Comment 4 on Art. 7.1.7 UPICC; also supra. note 15.

 1108. See Fritz Enderlein, Dietrich Maskow in "International Sales Law: United Nations Convention on Contracts for the International Sale of Goods", Oceana Publication (1992); pp. 320-321. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 1109. See Tom Southerington in "Impossibility of Performance and Other Excuses in International Trade": Tuula Ämmälä ed., Publication of the Faculty of Law of the University of Turku, Private law publication series B:55 (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/southerington.html

 1110. Supra. note 15, Comment D.

 1111. Supra. note 10.

 1112. See Denis Tallon, Commentary on the International Sales Law - The 1980 Vienna Sales Convention, C.M. Bianca and M.J. Bonell eds. (1987); p. 579.

 1113. Supra. note 19, p. 320.

 1114. Supra. note 8.

 1115. See John O. Honnold, Uniform Law for International Sales(1999); p. 476.

 1116. See Hans Stoll in "Exemptions": COMMENTARY ON THE U.N. CONVENTION ON THE INTERNATIONAL SALE OF GOODS (CISG), Peter Schlechtriem ed., Geoffrey Thomas trans. (2d ed. 1998); p. 608.

 1117. See Dionysios P. Flambouras in "The Doctrines of Impossibility of Performance and clausula rebus sic stantibus in the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law: A Comparative Analysis": 13 Pace International Law Review(Fall 2001); pp. 267-268. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/flambouras1.html

 1118. Supra. note 15, Comment B.

 1119. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986); p. 102. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem-79.html

 1120. See Joseph M. Perillo in "Force Majeure and Hardship under the UNIDROIT Principles of International Commercial Contracts": Contratación internacional. Comentarios a los Principios sobre los Contratos Comerciales Internacionales del Unidroit, Universidad Nacional Autónoma de México - Universidad Panamericana (1998); pp. 121-122. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/perillo3.html

 1121. Supra. note 9, Comment 10.

 1122. Supra. note 29.

 1123. See Jennifer M. Bund in "force majeure Clauses: Drafting Advice for the CISG Practitioner": 17 Journal of Law and Commerce (1998); p. 387. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/bund.html

 1124. Supra. note 20.

 1125. Supra. note 30.

 1126. See Comment 1 on Art. 7.1.7 UPICC;

 1127. Supra. note 24.

 1128. Supra. note 9, Comment 4. However, the seller would not be exempted from liability under this article if he reasonably could have been expected to take the destruction of the goods into account at the time of the conclusion of the contract. Therefore, in order to be exempt from liability, the seller must not have known of their prior destruction and must have been reasonable in not expecting their destruction.

 1129. Supra. note 14, p. 215.

 1130. Supra. note 29.

 1131. This can be supported by both Art. 3.3 UPICC and Art. 4:102 PECL deal with the initial impossibility and stipulate that a contract is not invalid merely because at the time it was concluded performance of the obligation assumed was impossible, or because a party was not entitled to dispose of the assets to which the contract relates. However, as clarified in Chapter 19, such initial impossibility is not the subject to be discussed here.

 1132. Supra. note 27, p. 610.

 1133. Supra. note 19, pp. 322-323. Opinions may differ as to whether strikes are beyond the control of the party concerned, for their causes are often found in the enterprise. Eiderlein and Maskow believe that one should follow those authors who like Vischer take a careful stand in the matter and do not exclude strikes as impediments, except when they are internal confrontations at a factory and provided that the other conditions of impediments are fulfilled, too. Rudolph however believes that strikes could generally be considered as possible in the context of negotiations on pay and therefore would not constitute an impediment because they happen at specific intervals. This is true of strikes which can be foreseen at the time of the conclusion of the contract. Lockouts are, at least to a certain extent, not exterior to the activities of the debtor and can, therefore, not be considered as impediments.

 1134. Supra. note 30, p. 101.

 1135. Supra. note 19, p. 322.

 1136. Supra. note 15, Comment C(i).

 1137. E.g., 1974 Clunet 892; 1975 Clunet 929; 1975 Clunet 934; 1975 , Clunet 917; 1980 Clunet 951.

 1138. Supra. note 23, p. 580.

 1139. Supra. note 27, p. 611.

 1140. Supra. note 9, Comment 5.

 1141. See Trimarchi, Pietro in "Commercial Impracticability in Contract Law: An Economic Analysis": 11 Int'l Re v. of L. and Ec. (1991); p. 63, 65.

 1142. Supra. note 19, pp. 323-324.

 1143. Supra. note 23, pp. 580-581.

 1144. Supra. note 50.

 1145. Supra. note 15, Comment C(ii).

 1146. Supra. note 9, Comments 5, 6.

 1147. Supra. note 14, p. 216.

 1148. Supra. note 46.

 1149. Supra. note 28, p. 271.

 1150. Supra. note 9, Comment 7.

 1151. Supra. note 15, Comment C(iii).

 1152. Supra. note 19, p. 324.

 1153. Supra. note 62.

 1154. Supra. note 63.

 1155. Supra. note 28, p. 272.

 1156. Ibid.

 1157. Supra. note 62. In an earthquake zone the effects of earthquakes can be overcome by special construction techniques, though it would be different in the case of a quake of much greater force than usual.

 1158. Supra. note 23, p. 583.

 1159. Supra. note 46.

 1160. Supra. note 47. It is important to mention that the force majeure must have come about without the fault of either party under the European Principles; whereas interpretations which try to make clear that the fault principle is implemented in the CISG do not correspond to reality, the question of fault is not involved here since this concept has been set aside by the Convention

 1161. See Comment and Notes to the PECL: Art. 8:107. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp79.html

 1162. Supra. note 9, Comment 11.

 1163. Supra. note 19, p. 326.

 1164. Supra. note 72, Comment B.

 1165. Supra. note 19, pp. 327-330.

 1166. Supra. note 72, Comment C.

 1167. Supra. note 28, p. 274.

 1168. See Sarah Howard Jenkins in "Exemption for Nonperformance: UCC, CISG, UNIDROIT Principles -- A Comparative Assessment": 72 Tulane Law Review (1998); p. 2026. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jenkins.html

 1169. Supra. note 9, Comment 12.

 1170. Supra. note 19, p. 327.

 1171. Supra. note 26, p. 433.

 1172. Supra. note 30, p. 104.

 1173. Ibid.

 1174. Supra. note 15, Comment E.

 1175. 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 [draft] 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). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-79.html

 1176. Rognlien's proposed language [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'.], which is similar to ULIS Art. 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, 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 ... (John O. Honnold)"; "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" (Peter Schlechtriem); "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" (Barry Nicholas). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-79.html

 1177. Supra. note 19, p. 331.

 1178. Supra. note 83. However, Art. 79(3) does not provide whether or not the performing party is under obligation to perform after the impediment has ceased to exist. Southerington submits that this should be clear since Art. 79(5) explicitly limits the application of Art. 79 to damages and the promisee's duty to perform remains unchanged in the event of exempting impediments. (Supra. note 20.)

 1179. Supra. note 88.

 1180. Supra. note 9, Comment 14.

 1181. Supra. note 30, p. 105.

 1182. Supra. note 85.

 1183. See Nassar, Nagla, Sanctity of Contracts Revisited, Dordrecht, Boston, London (1995); p. 202. TLDB Document ID: 105700.

 1184. Supra. note 88.

 1185. Supra. note 9, Comment 15.

 1186. Supra. note 88.

 1187. Supra. note 28, p. 273.

 1188. Supra. note 15, Comment F.

 1189. Supra. note 94, p. 203.

 1190. See 8 IRAN-U.S. C.T.R. (1985 I); 298 at 230.

 1191. See Crook, John R. in "Applicable Law In International Commercial Arbitration: The Iran-US-Claims Tribunal Experience": 83 AJIL(1989); p. 294. TLDB Document ID: 120000.

 1192. See 15 Iran-U.S.C.T.R (1987 II); 189 at 211.

 1193. Supra. note 9, Comment 8.

 1194. Supra. note 14, pp. 217-218.

 1195. Supra. note 19, p. 332.

 1196. Supra. note 9, Comment 9.

 1197. Supra. note 15, Comment D.

 1198. Supra. note 19, p. 311.

 1199. Supra. note 107.

 1200. Supra. note 14, p. 217.

 1201. In Vienna, the rule on exemption produced primarily two controversial issues: The first involved the scope of the rule; the second the scope of liability for acts of employees, subcontractors and other "third persons". Regarding the first, the Federal Republic of Germany proposed the clarification that despite Art. 79(5) (restriction of the effects of exemption on damage claims) the existence of grounds for exemption should extinguish the obligor's obligation to perform. Comparable Norwegian proposals, corresponding to ULIS Art. 74(2), provided for the release of the obligor's duty to perform in the event of temporary but lengthy impediments if the circumstances had fundamentally changed in the meantime. There were several reasons for the rejection of these proposals, the foremost being the fear that a release from the obligation to perform could also extinguish collateral rights and secondary claims such as interest. There was special apprehension that the Norwegian proposal to Art. 79(3) intended to introduce the "theorie de l'imprevision" into the Convention. Finally, there was the fact that, in cases where obligations are physically impossible to fulfill, domestic legal doctrine - "impossibilium nulla est obligatio" would generally prevent a demand for performance anyway. The rejection of the German and Norwegian proposals can be interpreted to mean that an impossible obligation remains intact and is actionable, as long as the obligee does not declare an avoidance on the basis of a fundamental breach. Especially in the case of incurable defects for which the seller may not be responsible under Art. 79(1), there is a danger the domestic courts will set fines or penalties based on their rules of procedure for failure to follow an order for specific performance. In the end, such fines or penalties could be the equivalent of granting damages and could even surpass them in amount. According to Schlechtriem, a German court could, however, on the basis of Art. 28, dismiss a complaint asking for specific performance in such a case. Moreover, recognition of a foreign judgment that ordered specific performance of an impossible act would conflict with German public policy (328(1) No. 4 Code of Civil Procedure; Art. 27 No. 1 of the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters). (Supra. note 30, pp. 102-103)

 1202. Supra. note 27, p. 623.

 1203. Supra. note 27, p. 622.

 1204. Supra. note 28, pp. 275-276.

 1205. Supra. note 19, p. 333. When the right to repair, however, hinders the satisfaction of exactly those rights, and is taken into account in the conditions for repair claims, the general problem of the right to performance will arise.

 1206. Supra. note 104.

 1207. Supra. note 19, p. 335.

 1208. Supra. note 30, p. 103. See also supra. note 2, p. 642.

 1209. Supra. note 108.

 1210. Requests by Norway and the FRG, which had intended to avoid this, could not be carried through. Given today's far-spread practice of credit sales in international trade, the following situation is characteristic: The seller has delivered the goods, but because of currency transfer regulations introduced later, payment is prevented. The seller could withdraw from the contract in this case, but may not be interested in doing so because for commercial (the goods have effectively been sold to a third party) or foreign trade reasons (re-exportation is prohibited) he cannot again obtain possession of the goods or because he cannot use them for another purpose. Should he therefore be hindered to require payment? Such concerns as they have been articulated, in particular by Soviet delegates (O.R., 384), have prevented many delegations from supporting the FRG proposal. At the diplomatic conference, it was not possible to find a flexible answer to the question of what is to become of the right to performance. The rigid solution that has been adopted led to the most diverse interpretations which were guided by the idea of making it manageable in practice. (Supra. note 19, p. 333.)

 1211. See Comment 2 on Art. 7.1.7 UPICC.

 1212. Supra. note 108.

 1213. See Comment 2 on Art. 6.2.1 UPICC.

 1214. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 324. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html

 1215. Ibid., p. 320.

 1216. See Joern Rimke in "Force majeure and hardship: Application in international trade practice with specific regard to the CISG and the UNIDROIT Principles of International Commercial Contracts": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); pp. 219-220. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/rimke.html

 1217. See Dionysios Flambouras in "Comparative Remarks on CISG Article 79 and PECL Articles 6:111, 8:108" (2002). Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp79.htmlSee also Jacob Ziegel, infra. note 11; Joern Rimke, supra. note 4, p. 220.

 1218. See Dionysios Flambouras, ibid.

 1219. See Jennifer M. Bund in "force majeure Clauses: Drafting Advice for the CISG Practitioner": 17 Journal of Law and Commerce (1998); pp. 392-393. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/bund.html

 1220. Supra. note 4, p. 226.

 1221. Supra. note 2, p. 325.

 1222. See Denis Tallon, Commentary on the International Sales Law - The 1980 Vienna Sales Convention, C.M. Bianca and M.J. Bonell eds. (1987); p. 592.

 1223. See Jacob Ziegel in "Editorial remarks on the manner in which the UNIDROIT Principles may be used to interpret or supplement CISG Article 79". Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni79.html

 1224. See Joseph M. Perillo in "Force Majeure and Hardship under the UNIDROIT Principles of International Commercial Contracts": Contratación internacional. Comentarios a los Principios sobre los Contratos Comerciales Internacionales del Unidroit, Universidad Nacional Autónoma de México - Universidad Panamericana (1998); p. 120. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/perillo3.html

 1225. Supra. note 7, p. 390.

 1226. Supra. note 12, p. 126.

 1227. See Comment 1 on Art. 6.2.1 UPICC.

 1228. See Maskow, Dietrich in "Hardship and Force Majeure": 40 Am.J.Comp.L. (1992); p. 661. TLDB Document ID: 126400.

 1229. Supra. note 11.

 1230. Supra. note 1.

 1231. See Sylvette Guillemard in "A comparative study of the UNIDROIT Principles and the Principles of European Contracts and some dispositions of the CISG applicable to the formation of international contracts from the perspective of harmonisation of law": Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001); pp. 83-113. Available online at ‹http://cisgw3.law.pace.edu/cisg/biblio/guillemard1.html

 1232. Supra. note 16, p. 662.

 1233. Unlike the UNIDROIT Principles, the European Principles do not expressly provide for the binding force of contracts in its general provisions. Art. 6:111 PECL which deals with changes in circumstances begins with the rule that "[a] party is bound to fulfil its obligations even if performance has become more onerous, whether because the cost of performance has increased or because the value of the performance it receives has diminished." In this one relatively long article, the European Principles set out almost the same conditions for hardship as the UNIDROIT Principles.

 1234. As stated above, Arts. 6.2.2 and 6.2.3 of the UNIDROIT Principles deal with the definition of hardship and the effects of hardship respectively. This splitting up is intended to achieve greater clarity.

 1235. See Comment and Notes to the PECL: Art. 6:111. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp79.html› Admittedly, it can be argued that if sanctity of contract were applied strictly, and the idea that relief might be given when circumstances change unforeseeably were rejected, parties would be given a stronger incentive to introduce appropriate clauses into their contracts. But experience suggests that frequently the parties are not sufficiently sophisticated, or are too careless of their own interests, to do this; or they insert clauses which do not cover every eventuality. It can also happen that the operation of the clause itself runs into some unforeseen difficulty. For instance, a price fluctuation clause which operates by reference to the price of oil may have been drafted with only moderate rises in that price in mind and may give distorted results during an oil crisis. It is therefore impractical to leave such questions to be expressly agreed.

 1236. Ibid.

 1237. Supra. note 4, p. 240.

 1238. See Secretariat Commentary on Art. 65 of the 1978 Draft [draft counterpart of CISG Art. 79]. Comment 5. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-79.html

 1239. Supra. note 4, pp. 240-241.

 1240. The drafters of the PECL aimed to make a major contribution to the formation of a European ius commune, i.e., lex mercatoria, the scope of which is limited to the States of the European Union. In contrast, the CISG may be applied universally.

 1241. The various national laws solve in very different ways the problem of changes of circumstances which make the obligations of one party much more onerous but which do not amount to force majeure. Some accept it as a basis for modifying the contract, others do not. (See notes to Art. 6:111 PECL, supra. note 23.)

 1242. See Comment 5 on Art. 6.2.2 UPICC.

 1243. See Dionysios P. Flambouras in "The Doctrines of Impossibility of Performance and clausula rebus sic stantibus in the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law: A Comparative Analysis": 13 Pace International Law Review(Fall 2001); pp. 292-293. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/flambouras1.html

 1244. See Comment 1 on Art. 6.2.2 UPICC.

 1245. See Comment 2 on Art. 6.2.2 UPICC.

 1246. Supra. note 23, Comment B.

 1247. Supra. note 20.

 1248. Supra. note 33.

 1249. Supra. note 34.

 1250. Supra. note 33.

 1251. See Comment 6 on Art. 6.2.2 UPICC.

 1252. Under the Restatement (Second) of Contracts which is available to buyers under section 1-103 of the UCC, section 265 only permits discharge when a party's principal purpose is substantially frustrated. The principal purpose "must be so completely the basis of the contract that, as both parties understand, without it the transaction would make little sense." The mere fact that the transaction has become less profitable is insufficient to establish frustration of purpose; the performance must become commercially valueless, which requires near total frustration. At least one author suggests that a fifty percent decrease in value of the performance to be received or a fifty percent increase in the cost of performance is sufficient to satisfy the "fundamental change" requirement of Art. 6.2.2 UPICC, a substantial difference from the level reflected in section 265. (See Sarah Howard Jenkins, infra. note 54, p. 2028.)

 1253. Supra. note 33.

 1254. See Comment 4 on Art. 6.2.2 UPICC.

 1255. See Comment 3 on Art. 6.2.2 UPICC.

 1256. Supra. note 34.

 1257. Supra. note 12, p. 128.

 1258. Supra. note 43.

 1259. Supra. note 12, p. 129.

 1260. Supra. note 34.

 1261. Supra. note 16, pp. 662-663.

 1262. Supra. note 43.

 1263. Supra. note 12, pp. 129-130.

 1264. Supra. note 34.

 1265. See Comment 7 on Art. 6.2.2 UPICC.

 1266. See Sarah Howard Jenkins in "Exemption for Nonperformance: UCC, CISG, UNIDROIT Principles -- A Comparative Assessment": 72 Tulane Law Review (1998); pp. 2028-2029. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jenkins.html

 1267. Supra. note 16, p. 663.

 1268. Ibid.

 1269. Supra. note 23.

 1270. Supra. note 19.

 1271. See Comment 1 on Art. 6.2.3 UPICC.

 1272. Supra. note 23, Comment C.

 1273. Supra. note 59.

 1274. See Comment 2 on Art. 6.2.3 UPICC.

 1275. See Comment 3 on Art. 6.2.3 UPICC.

 1276. Supra. note 12, p. 130.

 1277. Supra. note 63.

 1278. Supra. note 60.

 1279. Supra. notes 62, 63.

 1280. Supra. note 64.

 1281. Supra. note 60.

 1282. See, e.g. Comment 5 on Art. 6.2.3 UPICC.

 1283. See Comment 4 on Art. 6.2.3 UPICC.

 1284. Supra. note 22.

 1285. Supra. note 22, Comment D.

 1286. See Comment 6 on Art. 6.2.3 UPICC.

 1287. Supra. note 12, p. 131.

 1288. See Comment 7 on Art. 6.2.3 UPICC.

 1289. Supra. note 73.

 1290. Supra. note 60.

 1291. Supra. note 73.

 1292. Supra. note 54, p. 2029.

 1293. Supra. note 76.

 1294. Supra. note 73.

 1295. See Joern Rimke in "Force majeure and hardship: Application in international trade practice with specific regard to the CISG and the UNIDROIT Principles of International Commercial Contracts": Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000); p. 227. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/rimke.html

 1296. It is likely that Art. 79 will be the Convention's least successful provision. The most discussed problem in the context of Art. 79 is whether radically changed circumstances, where the performance of one of the parties has become much more onerous and difficult, but not impossible, falls within the scope of this provision. Because of Art. 79's vagueness, however, it cannot be determined with sufficient certainty how this issue can be decided on the basis of the CISG.

 1297. Supra. note 1, pp. 242-243.

 1298. Party autonomy is generally established under, e.g. CISG Art. 6; UPICC Art. 1.5 and PECL Art. 1:102(2). In pertinent part, for instance, the Official Comment on the UNIDROIT Principles deals with the relationship between hardship/ force majeure and contract practice: "The definition of hardship in this article [Art. 6.2.2 UPICC] is necessarily of a rather general character. International commercial contracts often contain much more precise and elaborate provisions in this regard. The parties may therefore find it appropriate to adapt the content of this article so as to take account of the particular features of the specific transaction." (Comment 7 on Art. 6.2.2 UPICC); similarly, "[t]he definition of force majeure in para. (1) of this article [Art. 7.1.7 UPICC] is necessarily of a rather general character. International commercial contracts often contain much more precise and elaborate provisions in this regard. The parties may therefore find it appropriate to adapt the content of this article so as to take account of the particular features of the specific transaction." (Comment 4 on Art. 7.1.7 UPICC)

 1299. See Sarah Howard Jenkins in "Exemption for Nonperformance: UCC, CISG, UNIDROIT Principles -- A Comparative Assessment": 72 Tulane Law Review (1998); pp. 2029-2030. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jenkins.html

 1300. See Dionysios P. Flambouras in "The Doctrines of Impossibility of Performance and clausula rebus sic stantibus in the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law: A Comparative Analysis": 13 Pace International Law Review(Fall 2001); pp. 283-284. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/flambouras1.html

 1301. Supra. note 1, p. 221.

 1302. See Ugo Draetta in "Force Majeure Clauses in International Trade Practice": 5 Int'l Bus. L. J. (1996); p. 550.

 1303. See P.J.M. DeClercq in "Modern Analysis of the Legal Effect of Force Majeure Clauses in Situations of Commercial Impracticability": 15 J.L. and Com.(1995); p. 213.

 1304. See Delaume, Georges, Law And Practice of Transnational Contracts, New York, London, Rome (1988); p. 53. Available online at ‹http://tldb.uni-koeln.de/TLDB.html› ; TLDB Document ID: 101500.

 1305. See Jennifer M. Bund in "Force majeure Clauses: Drafting Advice for the CISG Practitioner": 17 Journal of Law and Commerce (1998); pp. 405-406. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/bund.html

 1306. Supra. note 9, p. 232.

 1307. Supra. note 1, p. 230. In this respect, Bund believes that courts may be more willing to give effect to "laundry list" force majeure clauses that contain specific events, rather than to a catchall or combination-type clause for several reasons. First, a clause that merely lists general categories leaves judges discretion and, in certain situations, they could refuse to excuse performance since they are not bound by specified events. Second, under rules of construction, namely ejusdem generis, courts have refused to excuse performance for events that are dissimilar to events specifically listed in the clause (e.g., economic factors). Including a general catchall provision, therefore, may be a wasted effort. (Supra. note 11, p. 408.)

 1308. Supra. note 9, p. 233.

 1309. Supra. note 8, p. 552.

 1310. Supra. note 11, p. 408.

 1311. Supra. note 11, pp. 410-411.

 1312. See John S. Kirkham in "force majeure - Does it Really Work?": 30 Rocky Mtn. Min. L. Inst. (1984); § 6.05(2)(a).

 1313. Supra. note 8, p. 552.

 1314. Supra. note 1, pp. 231-232.

 1315. Some of these clauses provide the contract will terminate when a specified change in circumstances has occurred. Other clauses, such as indexation clauses or price revision clauses provide the contract terms will be automatically changed if such circumstances arise. Finally, some clauses, adaptation clauses, merely order the parties to adapt the contract terms to the new circumstances. (Infra. note 25, p. 109.)

 1316. See Wouter Den Haerynck in "Drafting Hardship Clauses in International Contracts": Structuring International Contracts, Dennis Campbell ed. (1996); p. 234.

 1317. See Clive M. Schmitthoff, Schmitthoff's Export Trade 146 (8 ed. 1986); p. 648.

 1318. See Joseph M. Perillo in "Force Majeure and Hardship under the UNIDROIT Principles of International Commercial Contracts": Contratación internacional. Comentarios a los Principios sobre los Contratos Comerciales Internacionales del Unidroit, Universidad Nacional Autónoma de México - Universidad Panamericana (1998); p. 117. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/perillo3.html

 1319. See van Houtte, Hans in "Changed Circumstances and Pacta Sunt Servanda": Gaillard ed., Transnational Rules in International Commercial Arbitration (ICC Publ. Nr. 480,4), Paris (1993); pp. 109-110. TLDB Document ID: 117300.

 1320. Ibid.

 1321. Supra. note 10, p. 59.

 1322. Supra. note 22, p. 235.

 1323. See Puelinckx, A.H. in "Frustration, Hardship, Force Majeure, Imprévision, Wegfall der Geschäftsgrundlage, Unmöglichkeit, Changed Circumstances": 3 J.Int'l Arb. No. 2 (1986); p. 53. TLDB Document ID: 128100.

 1324. Supra. note 1, pp. 228-229.

 1325. Supra. note 22, pp. 237-238.

 1326. See Clive M. Schmitthoff in "Hardship and Intervener Clauses": J. Bus. L.(1980); p. 85.

 1327. Supra. note 22, p. 239.

 1328. Supra. note 1, p. 229.

 1329. Supra. note 1, p. 232.

 1330. Supra. note 8, p. 551.

 1331. Supra. note 1, p. 241, 243.


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