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Observations on the use of the Principles of European Contract Law as an aid to CISG research

The PECL is a "Restatement". Restatements can help interpret a law. PECL comparatives can help CISG researchers.

PECL comparatives

The U.S. has the UCC as its uniform domestic law and a Restatement that has served as a companion to the Uniform Commercial Code. The Restatement of Contracts has a broader scope than the UCC; it takes cognizance of insights derived from the text of the UCC, from scholarly commentaries on the UCC, from cases that have interpreted the UCC, and from other sources. When construing the Uniform Commercial Code, courts and scholars often cite this Restatement.

The United Nations Convention on Contracts for the Sale of Goods of 1980 is the world's uniform international sales law. Two more recent documents can be regarded as companions to the CISG: the UNIDROIT Principles of International Commercial Contracts (promulgated in 1994; discussed elsewhere in this database), and the Principles of European Contract Law (complete and revised version 1998). Like the U.S. Restatement of Contracts, both were written by persons learned in this field of law. And, although they are broader in scope, each in different ways, these are "Restatements" that include provisions derived from the CISG. Other sources were also considered. Both "Restatements" take cognizance of insights derived from the text of the CISG, from scholarly commentaries on the CISG, from cases that have interpreted the CISG, and from other sources.

In the PECL we encounter:

(1) Provisions that are identical to, "on all fours" with, counterpart CISG provisions. Sub-classifications are: (a) texts that go no further than their CISG counterparts; and (b) texts accompanied by collections of provisions that embellish, add to or make more explicit that which is implicit. Just as one regards the UCC as more detailed than the CISG, the latter categories of PECL material are more detailed than their CISG analogs. The PECL analogs to CISG article 8 are a good example.

(2) PECL provisions that are substantially the same as or similar to CISG provisions. This category of PECL provisions may also be sub-classified (a) and (b), as may the remaining categories of PECL provisions.

(3) PECL provisions that are somewhat similar to CISG provisions; or

(4) Substantively different from CISG counterparts.

Where provisions of the CISG are skeletal and those of the PECL more full bodied, for the CISG researcher the utility of PECL comparatives ranges from most relevant (categories (1) and (2)) to least relevant (category (4)).

Where, as is often the case, the PECL dovetails with or approximates the CISG, PECL comparatives can be helpful to CISG researchers: like U.S. Restatements, the PECL "Restatement" enlightens with comments that explain provisions and illustrations that apply them to case law environments; the PECL "Restatement" also enlightens with notes that identify domestic antecedents and analogs, that match provisions with Continental and Common Law doctrine and jurisprudence.


Illustrative presentation of a PECL comparative

We introduced our observations on the use of PECL material with a reference to CISG article 8 and its PECL anologs on Intent. For another prime illustration of the utility of PECL comparatives, go to the match-up of CISG article 50 with PECL article 9:401 [Right to Reduce Price].

"As with the CISG, paragraph (1) of [PECL article 9:401] adopts the proportionality measure for the price reduction, measured at the time of delivery. Likewise, paragraph (2) is intended to allow a party such as the buyer to recover the amount of the price reduction once it has been paid. Finally, paragraph (3) makes it clear that the claimant cannot demand both the price reduction plus damages for the reduction in value." Peter A. Pilounis, Pace Essay (Cambridge 1999). Paragraph (3) of PECL 9:401 contains an embellishment upon CISG 50. "While there is no express equivalent in article 50 of the CISG, the two provisions would likely have the same effect." Id.

The article 50/9:401 comparative provides a Restatement-type commentary and illustrations of a provision similar to CISG 50. The notes to this "Restatement" identify domestic Continental and Common Law analogs and antecedents to the remedy of price reduction recited in CISG article 50 and PECL article 9:401. Common Law persons can especially benefit from this enlightenment as there is no direct Common Law counterpart to this remedy.


Additional presentations

Additional comparatives are identified in the concordance presented below. To assemble your own comparatives, the PECL source is: Ole Lando & Hugh Beale eds., "Principles of European Contract Law: Parts I and II", Kluwer Law International (2000).


Concordance and table of contents to comparatives

How well do the provisions of the PECL dovetail with the CISG? The concordance and table of contents to PECL comparatives we present at this time is:

Part I: General Provisions

Match-up of CISG article 6 with PECL articles 1:102 [Freedom of Contract] and 1:103 [Mandatory Law]

Match-up of CISG article 7 with PECL articles 1:106 [Interpreting and Supplementation], 1:107 [Application of the Principles by Way of Analogy], 1:201 [Good Faith and Fair Dealing], 1:202 [Duty to Co-operate]

Match-up of CISG article 8 with PECL articles 2:102 [Intention], 5:101 [General Rules of Interpretation], 5:102 [Relevant Circumstances], 5:103 [Contra Proferentem Rule], 5:104 [Preference to Negotiated Terms], 5:105 [Reference to Contract as a Whole], 5:106 [Terms to be Given Effect], 5:107 [Linguistic Discrepancies]

Match-up of CISG article 9 with PECL article 1:105 [Usages and Practices]

Match-up of CISG article 10 with PECL article 7:101(2) and (3) [Place of Business]

Match-up of CISG article 11 with PECL article 2:101(2) [No Formal Requirement]

Match-up of CISG article 13 with PECL article 1:301(6) [Definition: Written Statements]

Part II: Formation of the Contract

Match-up of CISG article 14 with PECL articles 2:201 [Offer], 2:101 [Conditions for the Conclusion of a Contract], 2:102 [Intention], 2:103 [Sufficient Agreement], 2:104 [Terms Not Individually Negotiated], 2:211 [Contracts Not Concluded through Offer and Acceptance]

Match-up of CISG article 16 with PECL article 2:202 [Revocation of Offer]

Match-up of CISG article 17 with PECL article 2:203 [Rejection of Offer}

Match-up of CISG article 18 with PECL articles 2:204 [Acceptance of Offer], 2:206 [Time Limit for Acceptance], 2:211 [Contracts Not Concluded through Offer and Acceptance]

Match-up of CISG article 19 with PECL articles 2:208 [Modified Acceptance], 2:209 [Conflicting General Conditions], 2:210 [Professional's Written Confirmation], 2:211 [Contracts Not Concluded through Offer and Acceptance]

Match-up of CISG article 20 with PECL article 1:304 [Computation of Time]

Match-up of CISG article 21 with PECL article 2:207 [Late Acceptance]

Match-up of CISG article 23 with PECL article 2:205 [Time of Conclusion of the Contract]

Part III: Sale of Goods

Match-up of CISG article 25 with PECL article 8:103 [Fundamental Non-Performance]

Match-up of CISG article 26 with PECL article 9:303 [Notice of Termination]

Match-up of CISG article 27 with PECL article 1:303 [Notice]

Match-up of CISG article 28 with PECL articles 9:101 [Right to Performance of Monetary Obligations] and 9:102 [Right to Performance of Non-Monetary Obligations]

Match-up of CISG article 29 with PECL articles 2:105 [Merger Clause], 2:106 [Written Modification Only], 2:107 [Promises Binding without Acceptance]

Match-up of CISG article 31 with PECL article 7:101 [Place of Performance]

Match-up of CISG article 33 with PECL article 7:102 [Time of Performance]

Match-up of CISG article 45 with PECL articles 8:101 [Remedies Available], 8:102 [Cumulation of Remedies]

Match-up of CISG article 46 with PECL articles 9:102 [Right to Performance: Non-Monetary Obligations], 9:101 [Right to Performance: Monetary Obligations], 9:103 [Right to Performance: Damages Not Precluded]

Match-up of CISG articles 47 and 49(1)(b) with PECL article 8:106 [Notice Fixing Additional Period for Performance]

Match-up of CISG article 48 with PECL article 8:104 [Cure by Non-Performing Party]

Match-up of CISG article 49 with PECL articles 9:301 [Right to Terminate the Contract], 9:303 [Notice of Termination]

Match-up of CISG article 50 with PECL article 9:401 [Right to Reduce Price]

Match-up of CISG article 51 with PECL articles 9:302 [Contract to be Performed in Parts], 9:306 [Property Reduced in Value]

Match-up of CISG article 52(1) with PECL article 7:103 [Early Performance]

Match-up of CISG article 55 with PECL article 6:104 [Determination of Price], 6:105 [Unilateral Determination by a Party], 6:106 [Determination by a Third Person], 6:107 [Reference to a Non-Existent Factor]

Match-up of CISG article 57 with PECL article 7:101 [Place of Performance]

Match-up of CISG article 58 with PECL articles 7:102 [Time of Performance], 7:104 [Order of Performance], 7:106 [Performance by a Third Person], 7:107 [Form of Payment], 7:108 [Currency of Payment], 7:109 [Appropriation of Performance]

Match-up of CISG article 61 with PECL articles 8:101 [Remedies Available], 8:102 [Cumulation of Remedies]

Match-up of CISG articles 62 with PECL articles 9:101 [Right to Performance: Monetary Obligations], 9:102 [Right to Performance: Non-Monetary Obligations], 9:103 [Right to Performance: Damages Not Precluded]

Match-up of CISG articles 63 and 64(1)(b) with PECL article 8:106 [Notice Fixing Additional Period for Performance]

Match-up of CISG article 64 with PECL articles 9:301 [Right to Terminate the Contract], 9:303 [Notice of Termination]

Match-up of CISG article 65 with PECL article 7:105 [Alternative Performance]

Match-up of CISG article 72 with PECL article 9:304 [Anticipatory Non-Performance]

Match-up of CISG article 73 with PECL articles 9:302 [Contract to be Performed in Parts], 9:306 [Property Reduced in Value]

Match-up of CISG article 74 with PECL articles 9:501 [Right to Damages], 9:502 [General Measure of Damages], 9:503 [Foreseeability], 9:504 [Loss Attributable to Third Party], 9:509 [Agreed Payment for Non-Performance], 9:510 [Currency by which Damages to be Measured]

Match-up of CISG article 75 with PECL article 9:506 [Damages: Substitute Transaction]

Match-up of CISG article 76 with PECL article 9:507 [Damages: Current Price where No Substitute Transaction]

Match-up of CISG article 77 with PECL article 9:505 [Mitigation: Reduction of Loss]

Match-up of CISG articles 78 and 84(1) with PECL article 9:508 [Interest: Delay in Payment of Money]

Match-up of CISG article 79 with PECL articles 8:108 [Excuse Due to an Impediment], 8:107 [Performance Entrusted to Another], 6:111 [Hardship]

Match-up of CISG article 80 with PECL articles 8:101(3) [Own Act Causing Other Party Non-Performance], 1:301(1) [Meaning of Terms: Definition of "act"], 9:504 [Loss Attributable to Aggrieved Party]

Match-up of CISG article 81 with PECL articles 9:305 [Effects of Termination in General], 9:306 [Property Reduced in Value], 9:307 [Recovery of Money Paid], 9:308 [Recovery of Property], 9:309 [Recovery for Performance that Cannot be Returned]

Match-up of CISG article 82 with PECL article 9:309 [Recovery for Performance that Cannot be Returned]

Match-up of CISG article 84(1) with PECL article 9:508 [Interest: Delay in Payment of Money]

Match-up of CISG articles 85, 86, 87 and 88 with PECL articles 7:110 [Property Not Accepted], 7:111 [Money Not Accepted], 7:112 [Costs of Performance]


© Pace Law School Institute of International Commercial Law - Last updated May 22, 2001
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