The CISG – A Fair Balance of the Interests of Seller and Buyer Prof. Dr. Ingeborg Schwenzer, LL.M. Basel/Switzerland www.swissintlawschool.org
Overview Introduction Conformity of the goods - Historical development in legal systems - Non-conformity under the CISG - Examination and notice Remedies upon breach of contract - Structure of remedies - Damages - Avoidance Conclusion www.swissintlawschool.org
Introduction Bargaining situation in international sales contracts CISG: 83 member states Covering 80% of world trade Fair balance of interests www.swissintlawschool.org
Conformity of the goods – Domestic legal systems Civil law systems: Roman law Caveat emptor Distinction peius and aliud Defects in quality and quantity Mixed contracts Examination and notice www.swissintlawschool.org
Conformity of the goods – the CISG Simplifying structure, accommodating to differences in international trade Broad notion of non-conformity – subtle distinctions unnecessary Starting point: the contract Fitness for particular purpose Fitness for ordinary purpose www.swissintlawschool.org
Conformity of the goods – Examination and notice General duty to examine and give notice Highly debated issues at Vienna Conference Wording more liberal than in domestic laws Reasonable excuse for failure to give notice Evaluation of CISG notice provisions Application in different legal systems www.swissintlawschool.org
Remedies - Structure Cause-oriented approach v. breach-of-contract approach Cause-oriented approach: favouring the party in breach Breach-of-contract approach: outcome more predictable Sheer structure of remedies www.swissintlawschool.org
Remedies - Damages Civil law legal systems: favouring party in breach (fault principle, damages only under certain conditions, recoverable losses) Common law legal systems: favouring aggrieved party (damages primary remedy, strict liability, contemplation rule) CISG compromise: strict liability, exemption in case of impediment, full compensation principle www.swissintlawschool.org
Remedies - Avoidance Domestic legal systems: chaotic differences (means to avoid a contract, preconditions for avoidance) CISG: avoidance ultima ratio remedy Fundamental breach Fault irrelevant, foreseeability Nachfrist-principle Avoidance by declaration www.swissintlawschool.org
Conclusion CISG story of worldwide success Role model for lawmaking Flexible rules, accommodate interests of both parties Reasonableness No need to resort to notions of good faith www.swissintlawschool.org
Muito obrigada para sua atenção. i.schwenzer@swissintlawschool.org www.swissintlawschool.org