Matchup of CISG Article 77 with ULIS/ULF Go to Database Directory || Go to CISG Table of Contents

LEGISLATIVE HISTORY

CISG ANTECEDENTS

Match-up of CISG article 77 with ULIS provisions


CISG Article 77

A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.

  

ULIS Article 88

The party who relies on a breach of the contract shall adopt all reasonable measures to mitigate the loss resulting from the breach. If he fails to adopt such measures, the party in breach may claim a reduction in the damages.

SEE ALSO:

ULIS Article 25. The buyer shall not be entitled to require performance of the contract by the seller, if it is in conformity with usage and reasonably possible for the buyer to purchase goods to replace those to which the contract relates. In this case the contract shall be ipso facto avoided as from the time when such purchase should be effected.

ULIS Article 61(2). The seller shall not be entitled to require payment of the price by the buyer if it is in conformity with usage and reasonably possible for the seller to resell the goods. In that case the contract shall be ipso facto avoided as from the time when such resale should be effected.


Comments on the match-up

"Article 77 adopts the same principle as Article 88 ULIS, but clarifies certain matters. First of all, it makes clear that the aggrieved party’s duty to mitigate loss includes not only loss of assets (damnum emergens) but also loss of profit (lucrum cessans). The phrase ‘loss resulting from the breach’ appears in the English versions of both the CISG and ULIS. However, a change in the wording of the French versions (‘la perte . . . resultant de la contravention) (CISG) instead of (‘la perte subie) (ULIS) is intended to indicate that the aggrieved party is obliged not only to take reasonable measures to mitigate loss which has already occurred, but also to counteract imminent loss. Article 77, second sentence, clearly lays down that damages cannot be claimed in respect of loss which could have been mitigated by the aggrieved party, while Article 88 ULIS leaves open the extent to which damages are to be reduced in the event of a failure to observe the requirement to mitigate loss. . . ." Stoll in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 585 [citations omitted].


Pace Law School Institute of International Commercial Law - Last updated July 30, 1999
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