Guest: Lawyer - 2010-09-14 14:45:39
Is the principle of hardship included anywhere in the CISG? PPl who were at the Vis Moot said that there are some scholars who support that.
Guest: morris - 2010-09-14 15:55:16
the CISG (http://trans-lex.org/500100) is not mentioned as a reference under the TransLexPrinciple "Hardship" (http://trans-lex.org/951000) which seems to be a clue that at least Prof. Berger does not see any mention of "hardship" in the CISG. I suggest you: http://www.cisg.law.pace.edu/cisg/text/peclcomp79.html#ed2
be - 2010-09-15 14:40:55
The drafters of the CISG specifically refused to include the hardship concept in the remedy system of the Convention. Because of that drafting history, one may not introduce that concept through the backdoor, e.g. by reference to domestic systems which accept the hardship concept. However, CISG scholars agree that in truly extreme, "exorbitant" cases of economic onerousness (e.g. 200% price increase in non-volatile markets), the debtor may claim excuse from non-performance by reference to the "last limit of economic sacrifice" rule. That rule is read into Art. 79 CISG and is based on good faith as one of the major general principles underlying the CISG (see Art. 7(1) CISG). If you want to learn more about this concept and its application in a cross-border sales transaction by an international arbitral tribunal, please refer to my Casebook Private Dispute Resolution in International Business, 2nd ed. 2009, Handbook, Nos. 24-61 et seq.