Q 80-1
Which rule does Article 80 CISG establish?
Article 80 CISG lays down the principle that an aggrieved party may not rely on a failure of performance that was caused by itself.
Q 80-2
Explain the scope of application of Articles 77 and 80 CISG, respectively.
Article 80 CISG relates to situations where the debtor caused the breach itself; Article 77 CISG concerns cases in which the creditor failed to mitigate the loss after a breach which was solely caused by the debtor. In case where the creditor caused the failure of performance, under Article 80 CISG all remedies are excluded in contrast to Article 77 CISG which in principle only relates to damages.
Q 80-3
(a) Explain the differences between Article 79 and Article 80 CISG.
(b) Compare Article 80 CISG with the provisions from other legal systems. How do the latter differ from Article 80 CISG with regard to their scope of application?
(a) Under Article 79 CISG, the debtor is only exempted from the liability for damages, whereas—again—Article 80 CISG relates to the breach itself.
(b) PICC 2016 are comparable to the CISG; Article 7.1.2 PICC 2016 equals Article 80 CISG whereas the counterpart to Article 77 CISG can be found in Article 7.4.7 PICC 2016. In contrast to this approach, many civil law legal systems do not have a clear distinction but treat both situations under the same statutory rule.
Q 80-4
How did the seller in the C 80-1 cause the buyer’s breach of contract?
The buyer was not able to open the letter of credit because the seller did not name the port of shipment.
Q 80-5
Under Article 80 CISG, the consequences where the debtor’s failure to perform is caused by both parties are disputed. Is there a total or partial exclusion of remedies? See C 80-2.
The clear wording of Article 80 CISG (‘to the extent that’) militates for a partial exclusion.
Q 80-6
(a) Can you think of a situation where the debtor, instead of relying on Article 80 CISG, will be required to make an effort to overcome the disturbance caused by the creditor?
(b) On which general principle could such a duty of the debtor be based?
(a) Where the debtor realises, for example, that information given by the creditor will necessarily lead to a breach of contract, it must inform the creditor accordingly.
(b) On the principle of good faith and fair dealing in international trade.
Q 80-7
When will the debtor, who was not able to fulfil one or several of its contractual duties due to an act or omission of the creditor, be entitled to remedies against the creditor?
If the causation of the debtor’s failure to perform at the same time amounts to a breach of a (additional) duty of the creditor.
