Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28
Peter Schlechtriem [*]
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Damages, governed by Arts. 74 to 79, have to be paid in money and are not to be recovered as restitution or restoration. They require a breach of an obligation regardless of whether the breach consists of non-preformance, late performance or imperfect performance. As an additional requirement, liability of the party in breach under Art. 79 is necessary. The party in breach can, however, excuse himself for a failure to perform only under the circumstances described in Art. 79. In addition, the party in breach may not be liable to the extent that the breach was caused by an act or omission of the other party, Art. 80.
Article 79 has caused some problems and raised some questions. First of all, there is the rather theoretical discussion of whether Art. 79 is based on the fault principle of continental law, as one English author interprets this norm. or whether it is more closely related to the principle of guarantee, from which the debtor is excused only in exceptional cases. I think that this is mainly a play of words. The characterization of the excuse in Art. 79 as an expression of the fault principle or something else would first require a clarification of what fault exactly means. Since even under a system where liability is based on the notion of fault, i.e., a willful or negligent breach of an obligation, one may arrive, by narrowing the possibilities for rebutting the presumption of negligence, at a point where the results are the same as under no-fault principles of liability.
The excuse granted in Art. 79 exempts only the breaching party from liability for damages. All other remedies of the other parties are not affected by this excuse, Art. 79(5). That means, that even in case of impossibility, the other party could ask for specific performance -- a result that is hardly convincing.
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Another problem with Art. 79 is how far the debtor is responsible for failure of a third person whom he has engaged to perform his obligations. Article 79(2) makes excuse for the debtor in these cases more difficult because he not only has to prove the requirements for excuse in regard to himself, but also in regard to the third party. Nevertheless, there was the understanding that Art. 79(2) is meant as an easing of the requirement for excuse.
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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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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.
75. See v. Caemmerer, Das Verschuldensprinzip in rechtsvergleichender Sicht, RabelsZ 42 (1978), 5, at 15-16.
76. See supra note 73.
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78. See Tallon in: Bianca/Bonell, supra note 18, Art. 79 § 2.7., §3; J. Honnold, supra note 20, § 434; Enderlein/Maskow/Stargardt, supra note 7, Art. 79 § 5; Stoll in: v. Caemmerer/Schlechtriem, supra note 7, Art. 79 § 36. In Vienna the question was disputed, see O.R. 379 § 23-30, 408-409, § 66-74.
79. See O.R. 379 § 24-26.
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