Force Majeure and Hardship in International Sales Contracts

<p>Despite international efforts in recent decades to eliminate it, child labour continues to affect millions of children worldwide. This paper considers whether the UN Convention on Contracts for the International Sale of Goods (‘CISG’) can be used to prevent child labour. It firstly addresses the conformity requirements in art 35 of the CISG, and asks whether these can be used to require a seller to deliver child labour-free goods, even where this is not explicitly required by the contract. It then considers whether a buyer can recover damages if the seller delivers goods that are tainted by child labour. It examines the difficulties associated with a claim for damages in this context – especially where the only harm suffered by the buyer is to its goodwill or its ‘performance interest’ – and suggests how such damages might be calculated.</p>

Raskid ugovora prema Konvenciji UN o medjunarodnoj prodaji robe

Economic Annals ◽

10.2298/eka0205163p ◽

2002 ◽

Vol 43 (155) ◽

pp. 163-177

Author(s):

Jelena Perovic

Keyword(s):

World Wide ◽

The Other ◽

Legal Systems ◽

Judicial Interpretation ◽

Breach Of Contract ◽

Reasonable Person ◽

Contractual Obligation ◽

Definition Of ◽

The breach of a international sales contract by one party gives the other party a right to recover damages, but we are here concerned with more specialized remedy - avoidance of the contract. In the UN Convention on the International Sale of Goods (CISG) as in national legal systems, avoidance is not available for every breach of contract. The question whether the party affected by the disturbance may avoid the contract instead of being restricted to a claim for damages or other remedies with the contract continuing in force, depends of the seriousness of the breach of contractual obligation. In the Convention, a party may avoid the contract when the other party commits a 'fundamental breach'. The party affected by breach must suffer a detriment which must be such 'as substantially to deprive him of what he is entitled to expect under the contract unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result'. The definition of 'fundamental breach of contract', as a fruit of world-wide compromise, is not always easy to apply both for the parties and the judges and it's notions of 'substantial detriment' and 'foreseeability' may give rise to divergent judicial interpretation and application. .

Ethical standards in international sales contracts: Can the CISG be used to prevent child labour?

10.26686/wgtn.17012126 ◽

2021 ◽

Author(s):

◽

Simon Wilson

Keyword(s):

Child Labour ◽

Ethical Standards ◽

Sales Contracts ◽

<p>Despite international efforts in recent decades to eliminate it, child labour continues to affect millions of children worldwide. This paper considers whether the UN Convention on Contracts for the International Sale of Goods (‘CISG’) can be used to prevent child labour. It firstly addresses the conformity requirements in art 35 of the CISG, and asks whether these can be used to require a seller to deliver child labour-free goods, even where this is not explicitly required by the contract. It then considers whether a buyer can recover damages if the seller delivers goods that are tainted by child labour. It examines the difficulties associated with a claim for damages in this context – especially where the only harm suffered by the buyer is to its goodwill or its ‘performance interest’ – and suggests how such damages might be calculated.</p>

Ch.6 Performance, s.2: Hardship, Introduction to Section 6.2 of the PICC

10.1093/law/9780198702627.003.0123 ◽

2015 ◽

Author(s):

McKendrick Ewan

Keyword(s):

United Nations ◽

Legal Systems ◽

Legal Doctrine ◽

Force Majeure ◽

The United Nations ◽

Contractual Obligations ◽

The Relationship

Section 6.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the concept of hardship. While hardship clauses are encountered with some frequency in international commercial contracts, few legal systems recognize a legal doctrine termed ‘hardship’. The innovative nature of Section 6.2 can be perceived by contrast with Art 79(1) of the United Nations Convention on Contracts for the International Sale of Goods (CISG). A discussion of Art 79 CISG, entitled ‘exemption’, leads on to a consideration of the relationship between force majeure and hardship. Hardship is most likely to be invoked in the context of long-term contracts where it is difficult, if not impossible, for the parties to make provision for every event that may have an impact on their contractual obligations.

Interpreting merger clauses in contracts governed by the CISG: delineating the scope for the use of extrinsic evidence

Uniform Law Review ◽

10.1093/ulr/unab013 ◽

2021 ◽

Author(s):

Aditya Suresh

Keyword(s):

United Nations ◽

Common Law ◽

Advisory Council ◽

Sales Contracts ◽

Opt Out ◽

The United Nations ◽

Abstract Under Article 8(3) of the United Nations Convention on Contracts for the International Sale of Goods (CISG), parties’ statements, prior negotiations and other external circumstances may be used to assess the presence of subjective or objective intent that can, in turn, be used to interpret contractual terms in international sales contracts governed by the CISG. However, parties to the contract can, through the adoption of an ‘entire agreement’ or ‘merger’ clause, opt out of this rule under Article 8(3) and restrict these interpretative tools in any manner as they see fit, depending on the requirements of their contract. Since the CISG does not explicitly address merger clauses and their effects, the CISG Advisory Council, in its Opinion no. 3, has provided a test to determine how the scope of a merger clause is to be determined. However, this test presents certain conceptual and practical limitations that render it inadequate for use in international commercial contracts. This article aims to analyse this test and the methods that have been used to interpret merger clauses under other uniform legal instruments and cases in common law jurisdictions. On this basis, the article proposes a test that attempts to fully capture the conceptual intent behind including merger clauses while ensuring that the parties are in the driver’s seat while determining their scope and effect.

THE IMPACT OF COVID-19 ON THE PERFORMANCE OF INTERNATIONAL COMMERCIAL CONTRACTS FOR THE SALE OF GOODS – FORCE MAJEURE AND HARDSHIP

10.47063/ebtsf.2020.0012 ◽

2020 ◽

Author(s):

Ljuben Kocev

Keyword(s):

International Trade ◽

Negative Impact ◽

Health Impact ◽

Sales Contracts ◽

Legal Perspective ◽

Full Effect ◽

Force Majeure ◽

Entire World ◽

The Impact ◽

The outbreak of COVID-19 has had massive negative impact across all industries and fields in the entire world. While the negative health impact is slowly stabilizing, the economic impact is in full effect and the harm is yet to be evaluated. On macroeconomic level, the necessary measures for combating the pandemic which were undertaken by governments have significantly restricted international trade. On microeconomic level, merchants and businesses are faced with inability or extreme obstacles in their daily operations and particularly in performing their international sales contracts. Failure to perform results in contractual breach and unwanted claims for damages. The paper addresses the impact which COVID-19 has on the performance of international commercial contracts for the sale of goods. The paper considers the impediments which may arise due to the pandemic outbreak and evaluates them from a legal perspective under the UN Convention on Contracts for the International Sale of Goods from 1980 (CISG), which is the main legal instrument governing international sales contracts. Particularly, the paper focuses on the question of exemption from liability in a situation where either of the contractual parties fails to perform and breaches an obligation. The evaluation is conducted through interpretation of the concepts of force majeure and hardship, as grounds for non-performance or contract renegotiation in light of the current situation.

Replacement of non-conforming goods ‘free of charge’: is there a need to differentiate between B2B and B2C sales contracts?

Uniform Law Review ◽

10.1093/ulr/unaa005 ◽

2020 ◽

Vol 25 (1) ◽

pp. 67-91

Author(s):

Yeşim M Atamer

Keyword(s):

United Nations ◽

Legal Systems ◽

Sales Contracts ◽

Council Directive ◽

Business To Consumer ◽

The United Nations ◽

Business To Business

Abstract The buyer’s right to request replacement of any non-conforming goods is today a standard remedy in many jurisdictions. This development was also influenced by the widespread effect of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Council Directive (EC) 1999/44 on consumer sales, which both grant the buyer a right to replacement. However, some questions related to the requirement that replacement has to be ‘free of charge’ continue to be disputed under both legal systems, as well as under the newly introduced Council Directive (EC) 2019/22 on consumer sales. This article intends to discuss how the term ‘free of charge’ is being interpreted in business-to-business as well as in business-to-consumer sales contracts and whether there is any need to differentiate between the two types of sales contracts.

The Requirements for the Inclusion of Standard Terms in International Sales Contracts

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2011/v14i1a2542 ◽

2017 ◽

Vol 14 (1) ◽

pp. 1

Author(s):

Sieg Eiselen

Keyword(s):

International Trade ◽

Case Law ◽

Legal Systems ◽

Trade Law ◽

International Trade Law ◽

Sales Contracts ◽

Standard Terms ◽

International Sales ◽

Proper Interpretation

The problem dealing with the inclusion of standard terms and conditions in contracts is a problem that has engaged most legal systems. The United Nations Convention on Contracts for the International Sale of Goods, Vienna 1980 (CISG) does not expressly deal with this problem. Accordingly the solution to the issue must be found in an interpretation and application of the general principles found in articles 8, 14 and 18. One of the main objects of the CISG is the harmonisation of international trade law. It is generally recognised that in order to achieve harmonisation it is necessary that courts should interpret and apply the convention in a consistent and harmonious manner. Unfortunately a number of approaches have emerged from courts around the world in regard to the inclusion of standard terms. German courts have developed a strict approach which requires that the standard terms be made available to the addressee at the time of the conclusion of the contract. They also require that the standard terms be couched in the language of the main contract. In stark contrast an American court has used an approach which is very lax in regard to incorporation, even allowing incorporation after the conclusion of the contract. There is, however a more moderate approach set out in decisions of the Austrian Supreme Court where the court adopted an approach which is more akin to that found in most legal systems, namely that a clear incorporation clause in the contract is sufficient for the effective incorporation of standard terms. The author critically examines the case law, the various approaches and the underlying arguments on which they are based, before reaching the conclusion that the two extreme approaches should be rejected in favour of the more moderate approach. This approach is founded on a proper interpretation of the provisions of the CISG as well as being in step with international trade practice.