CYIL vol. 15 (2024)

BÁRA MIKA well as case law 20 concluded that the CISG does not apply to hardship while the drafting history of Article 79 CISG also supports this conclusion 21 since the CISG drafters did not reuse Article 74 of ULIS which was tilted towards hardship 22 and actively rejected drafting proposals with similar wording. 23 Nevertheless, without these considerations and solely analyzing the wording, Article 79 CISG is vague 24 and does not expressly require performance impossibility – this leaves the door open for considering hardship. 25 Is there a reason to go through such a door that outweighs the aforementioned established reservations? In the author’s opinion, the answer is positive. The exclusion of hardship would leave the CISG with an external gap inviting the use of domestic doctrines and, as noted above, there are multiple available national doctrines to apply which effectively undermines the main goal of the CISG of achieving a uniform approach. 26 The shift in the discourse in favor of extending the CISG to hardship came with the decision of the Belgian Supreme Court 27 which considered a request for renegotiation of a contract following an unexpected 70% increase in the price of steel. The court ruled in favor of the seller, mandating the buyer to engage in the renegotiation with good faith (the buyer categorically refused to adjust pricing). The core of the ruling was in the use of good faith and reasonable expectations of the parties as arguments for broader interpretation. 28 T his case recognizes that unforeseen circumstances that seriously disturb the contract equilibrium might amount to an “impediment” under Article 79 CISG 29 which was subsequently accepted by other rulings and commentators, including the CISG advisory council. The remedies available to the party affected by the hardship situations were not anyhow extended or developed in the subsequent legal practice and remain within the boundaries of excuse of circumstances: CISG, CESL and a case from Scotland’, Journal of International Trade Law and Policy , 11(3), p. 302. doi:10.1108/14770021211267397, MAGNUS, U. (2001) Force majeure and the CISG . The Hague: Kluwer Law International. pp. 1–33. 20 CISG-AC Opinion no. 7. ‘Exemption of Liability for Damages under Article 79 of the CISG’, Rapporteur: GARRO., M. A, (12.10.2007), Available at: https://cisgac.com/opinions/cisgac-opinion-no-7/. 21 SHREEDHAR, A. (2016) ‘Feasibility of “covering values” in transnational commercial law: Article 79 of the CISG and the “impediment”’, Global Journal of Comparative Law , 5(2), pp. 199–200. doi:10.1163/2211906x-00502001. 22 Convention relating to Uniform Law on the International Sale of Goods adopted in The Hague on 1.7.1964, was a predecessor of CISG. Article 75 of ULIS used the wording “ due to circumstances ” and contemplated permanent relief of liability in cases where the initial delay caused the performance to be “ radically changed ”. 23 SCHWENZER, I. (2008) ‘Force majeure and hardship in international sales contracts’, Victoria University of Wellington Law Review , 39(4), pp. 712–713, doi:10.26686/vuwlr.v39i4.5487. 24 NWAFOR, N. and LLOYD, C. (2019) ‘Re-imagining the doctrines of hardship and exemption/force majeure under the CISG and UNIDROIT principles of international commercial contracts’, Global Journal of Comparative Law , 8(1), p. 53, doi:10.1163/2211906x-00801003. 25 SCHLECHTRIEM, P. (1986) Uniform sales law: The UN Convention on contracts for the International Sale of goods , Wien: Manzsche Verlags- und Universitätsbuchhandlung. p. 109. 26 DIMATTEO, L. A. (2015) ‘Contractual excuse under the CISG: Impediment, hardship, and the excuse doctrines’, Pace International Law Review , 27(1), p. 280, doi:10.58948/2331-3536.1351. 27 Court de Cassaion , Scafom International BV v. Lorraine Tubes S.A.S . dated 19.6.2009. It should be noted that Belgium to this day does not have domestic hardship provision, hence the courts were obviously unaffected by their domestic background. 28 PRADERA, L.P. et al. (2011) ‘The duty to renegotiate an international sales contract under CISG in case of hardship and the use of the UNIDROIT Principles’, European Review of Private Law , 19 (Issue 1), p. 129, doi:10.54648/erpl2011007. 29 Ibid, p. 132.

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