Shared Responsibility under Article 80 CISG

Abstract

A promisor’s failure to perform will render it liable and a range of remedies will be available to the aggrieved party pursuant to Articles 45 and 61 of the UN Convention on Contracts for the International Sale of Goods (CISG).2 If the failure to perform has been caused by the aggrieved party, Article 80 provides: 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. The provision applies to the situation where a promisee interferes with the promisor’s performance in such a way that it fails. Honnold gives the example that a buyer might persuade officials in the country of import not to issue an import licence to the seller, thereby causing the seller to fail to deliver to the buyer in the country of import.3 The provision allows the defaulting promisor to be exempt from liability and it seems only fair that a promisee should not be able to obtain a benefit from interfering with the promisor’s performance. In this way, the provision has ‘… the seductive charm of a self-evident statement.’ 4 The defaulting promisor is exempt from liability, if the sole cause of interference is the other party to the contract. The wording ‘to the extent’ indicates that Article 80 also applies to the situation of the promisee’s partial interference with the promisor’s performance. However, the Article does not provide much guidance for the complex situations where both parties seem to have caused one party’s failure to perform, but without it being possible to delimit the consequences of each party’s contribution, e.g. where the parties have agreed that a method of inspection of the goods will be determined before delivery, but neither party takes steps to do so, thus making it impossible to determine whether the goods are defective due to the seller’s faulty production or the buyer’s defective inspection method.5 An apportionment of responsibility based on a comparison of the acts and omissions of the parties is needed, thus making it a situation of shared responsibility where the aggrieved party will have parts of a claim dismissed due to its own interference. In this article, the term ‘shared responsibility’ is used to describe situations where responsibility for a party’s failure to perform can be ascribed both to the defaulting and the aggrieved party to the contract. As a result, the aggrieved party will lose its right to remedies in part and the defaulting party will be partly liable. The literature is sporadic in this field and with a growing amount of case law addressing these situations, the aim of this article is to investigate the characteristics of shared responsibility situations. Compared to other provisions in the CISG, Article 80 has lived a quiet life. It could be argued that this is because it does not have an independent scope of application, especially compared to Articles 77 and 79. In this article it is demonstrated how, despite its vague wording, Article 80 has an independent scope of application. The primary focus of this article is on the particular situation known as shared responsibility and the problems arising from the need for a causal link. The choice between an objective and a subjective approach is also investigated. It is shown that there is a growing amount of case law expressing a concept similar to the one found in Article 80. The basis for the conclusions are, besides the text of the CISG itself, scholarly works, preparatory works, case law and other international rules concerning sales. For the sake of uniformity one must not either use domestic law or compare domestic law to identify concepts under the CISG.6 In order to promote uniformity and the international application of the CISG, international principles like the UPICC and the PECL could and should be used as aids to interpretation.7 The international rules looked into are the Acquis Principles (ACQP),8 the Draft Common Frame of Reference (DCFR),9 the Principles of European Contract Law (PECL),10 Central’s Transnational Law Digest and Bibliography (TLDB)11 and the Unidroit Principles (UPICC).12 These international rules are not tied to a particular domestic legal system and therefore they are valuable sources of inspiration when the international character of the CISG is being considered. The UPICC has particular added legitimacy as it is a clear expression of general principles.13 Furthermore, soft law like the UPICC expresses truly internationally recognized rules, since the adoption of non-recognized rules would make contracting parties choose other rules to govern their contracts. The entire success of soft law depends on its ability to produce rules that are recognized by the contracting parties, as it would otherwise become obsolete or redundant. It is beyond the scope of this article to compare domestic rules. Two areas are dealt with in this paper. First, the scope of Article 80 is defined and delimited. Second, the particular situation of shared responsibility is investigated. During the drafting of the CISG the German Democratic Republic suggested supplementing Article 79 by including a new Article 80.14 The latter is not a mere extension of Article 79 but it has its own independent sphere scope of application.15 As is demonstrated in the section immediately below, Article 80 differs from the closely related rules in Article 77 (mitigation) and Article 79 (force majeure) in five major respects: firstly, their position in the structure of the CISG and the point in time at which they apply; secondly, the focus of the Articles; thirdly, the cause of the detriment or loss that occurs; fourthly, the remedies that they affect; and finally, the extent of the duty to overcome or avoid the detriment or loss that occurs.