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In other words, causality is implied as a minimum standard. The theory of adequate causation is arguably more favorable to the plaintiff than the theory of foreseeability because "the German view appears to be that, so long as the 'kind' of loss suffered satisfies the 'adequate causation' test the defendant is liable to the full 'extent of the loss. Force majeure has its origins in the Code Napoleon and was adopted in different forms into municipal law. In Matsoukis v.

The party was not relieved from liability by the force majeure clause, "as there was no prohibition or embargo or physical or legal prevention of export. The court held that the license could have been granted if the seller had been prepared to pay a higher price and hence suffer a loss. Lord Denning pointed out: "It would be a strange thing if a seller could insist on the contract if the price fell, and could escape his own obligations if it rose.

Hardship is frequently incorporated into contracts as an express clause. It normally includes matters in the execution of a contract that are thought to be detrimental but not impossible. These circumstances must be of a fundamental nature and beyond the control of either party. Most important, these occurrences must be uncontemplated and unforeseeable. Hardship has not found its expression in the CISG , despite some attempts to include such provisions.

CISG Advisory Council: Opinion No. 8* Calculation of Damages under CISG Articles 75 and 76

There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party's performance has increased or because the value of the performance a party receives has diminished, and. The parties may not derogate from or vary the effect of this article.

A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror. Silence or inactivity does not in itself amount to acceptance.

An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.

If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day which follows.

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An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective. A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention. A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party 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.


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A declaration of avoidance of the contract is effective only if made by notice to the other party. Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication.

If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct. The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.

If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:. The seller must deliver the goods:.

Victoria University Law and Justice Journal

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. 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.

The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer. The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim.

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Notwithstanding the provisions of paragraph 1 of article 39 and paragraph 1 of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance.

The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.

Damages Under the Convention on Contracts for the International Sale of Goods

If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery 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 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price.

If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate. The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention. Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.

If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight. The seller may make such payment a condition for handing over the goods or documents. The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller. The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.

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However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance. If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding. Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller.

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If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage.

Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller. If the seller has committed a fundamental breach of contract, articles 67, 68 and 69 do not impair the remedies available to the buyer on account of the breach. The present paragraph relates only to the rights in the goods as between the buyer and the seller.


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