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Reproduced with permission of 17 Journal of Law and Commerce (1998) 187-217

excerpt from

The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)

Harry M. Flechtner [*]

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The drafters intentionally left open some matters upon which they were unable to reach consensus. For example, Article 25 of the CISG states that, in determining whether a breach is "fundamental," only those detrimental effects of the breach that were foreseeable to the breaching party should be considered.[63] The text of Article 25, however, does not specify whether this foreseeability should be determined as of the time of contract formation -- as it is, under Article 74, when the issue is the recoverability of a particular item of damage -- or at the time the breach occurred.[64] The drafters considered this specific issue, and consciously refused to amend the text of Article 25 to resolve it.[65] Would a non-uniform rule on this issue, with some tribunals measuring foreseeability at the time of contract formation and others doing so at the time of breach, be offensive to the uniformity principle in Article 7(1)? Or would such non-uniformity create a useful experiment in the advantages of the different positions, an experiment that the drafters consciously invited when they refused to resolve the question? It is extraordinarily difficult to decide whether such issues should be resolved in a single, uniform way, or whether multiple answers are more in keeping with the drafters' intentions. In other words, the creation of ambiguity concerning the time for determining foreseeability under Article 25 was intentional, and as a consequence it is not clear whether the drafters intended a uniform result.

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FOOTNOTES

* Professor, University of Pittsburg School of Law, A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law.

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63. Id.art. 25.

64. See Id.arts. 25, 74.

65. An account of this issue and the related episodes of drafting history is given in Honnold Treatise, supra note 12, 183.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999
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