Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 63 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 63 [draft counterpart of CISG article 72].
To the extent it is relevant to the Official Text, the
Secretariat Commentary on the 1978 Draft is perhaps the
most authoritative source one can cite. It is the
closest counterpart to an Official Commentary on the
CISG. A match-up of this article of the 1978 Draft with
the version adopted for the Official Text is necessary
to document the relevancy of the Secretariat Commentary
on this article. See the match-up for this article for
a validation of citations to this Secretariat Commentary.
This match-up indicates that paragraph (1) of article 63 of the 1978 Draft and paragraph
(1) of CISG article 72 are substantially identical.
Paragraphs (2) and (3) of the Official Text are new.
Text of Secretariat Commentary on article 63 of the 1978 Draft
[draft counterpart of CISG article 72] [Avoidance prior to the date for performance]
PRIOR UNIFORM LAW
ULIS, article 76.
1. Article 63 [draft counterpart of CISG article 72(1)] provides for the special case where prior to the date for performance it is clear that one of the parties will commit a fundamental breach. In such a case the other party may declare the contract avoided immediately. [This conclusion was modified by the addition of article 72(2)'s reasonable notice requirement "if time allows".]
2. The future fundamental breach may be clear either because of the words or actions of the party which constitute a repudiation of the contract or because of an objective fact, such as the destruction of the seller's plant by fire or the imposition of an embargo or monetary controls which will render impossible future performance [see footnote 1]. The failure by a party to give adequate assurances that he will perform when properly requested to do so under article 62(3) [draft counterpart of CISG article 71(3)] may help it "clear" that he will commit a fundamental breach.
3. A party who intends to declare the contract avoided pursuant to article 63 [draft counterpart of CISG article 72] should do so with caution. If at the time performance was due no fundamental breach would have occurred in fact, the original expectation may not have been "clear" and the declaration of avoidance itself be void. In such a case, the party who attempted to avoid would be in breach of the contract for his own failure to perform.
4. Where it is in fact clear that a fundamental breach
of contract will occur, the duty to mitigate the loss
enunciated in article 73 [draft counterpart of CISG article 77]
may require the party who will rely upon that breach to
take measures to reduce his loss, including loss of
profit, resulting from the breach, even prior to the
contract date of performance [see footnote 2].
1. Even though the imposition of an embargo or monetary controls which renders future performance impossible justifies the other party's avoidance of the contract under article 53 [draft counterpart of CISG article 72], the non-performing party may be excused from damages by virtue of article 65 [draft counterpart of CISG article 79].
2. See the commentary on article 73 [draft counterpart of CISG article 77] and especially Examples 73A and 73B.