Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28
Peter Schlechtriem [*]
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In regard to the remedy of specific performance, Art. 28 imposes a restriction as a compromise with those legal systems, such as the English, which generally deny a remedy of specific performance. Art. 28 allows the court to enter a judgement for specific performance only if it would do so under its own law in respect to similar contracts of sale. In other words, Art. 28 contains a conflict of law provision referring to the rules of the forum on specific performance and giving them priority over the Convention. Although meant only as a concession to Common Law countries, this provision may be misused as a door-opener for provisions of domestic law allowing the denial of or derogation from obligations, for example in cases of impossibility or clausula rebus sic stantibus. This would, of course, destroy the uniformity.
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* Dr. jur. ord. Professor Albert-Ludwigs-Universität Freiburg i. Breisgau, Director of the Institute of Foreign and Private International Law, Freiburg. President of the German Association of Comparative Law. The following article is based on a paper read to the Law Faculty of the University of Stockholm on Jan. 25, 1991. I have added footnotes and some remarks, but in general preserved the text of the oral lecture.
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72. As to the remedy of specific performance see J. Honnold, supra note 20, § 197 - 198; for American law see S. Williston, A Treatise on the Law of Contracts, 3rd ed. by W.H. Jaeger Vol. 11, § 1418 et seq. (Mount Kisco, N.Y. 1968): E.A. Farnsworth, Contracts, at 818 et seq. (Boston 1982); R.S. Summers/R.A. Hillman, Contract and Related Obligation: Theory, Doctrine and Practice, 326 et seq. (St. Paul, Minn. 1987); R.N. Leavell/J.C. Love/G.S. Nelson, Cases and Materials on Equitable Remedies, Restitution and Damages, at 553 et seq. (4th ed., St. Paul, Minn. 1986); for English law see W. Goodhart/G. Jones, in: Halsbury's Laws of England (ed. Lord Hailsham of St. Marylebone), 4th ed., vol. 44 § 401 et seq. (London 1983); I.C.F. Spry, The Principles of Equitable Remedies, Specific Performance, Injunctions, Rectification and Equitable Damages (London 1990); G.H. Treitel, in: Chitty on Contracts, Vol. 1 (General Principles), Chap. 27 (26th ed. London 1989).
73. See Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 28 § 18. I have to confess, however, that I too have set my foot on the slippery slope of such an interpretation by suggesting that Art. 28 can be invoked in case of impossibility in order to avoid the regrettable result of judgement of specific performance despite an impossibility for which the debtor could excuse himself under Art. 79(1), (2), see P. Schlechtriem, supra note 27, at 62-63. Application of Art. 28, in other words, was meant as a "remedy" against Art. 79(5).
74. Nicholas, The Prerequisites and Extent of Liability for Breach of Contract under the UN-Convention (CISG), in: Schlechtriem (ed.), supra note 27, at 283 et seq.
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