CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ VIS MAJOR AND HARDSHIP IN INTERNATIONAL TRADE: A STUDY OF THE CISG … from liability. There is no obligation to renegotiate or right to revision of the contract by a court. 30 In practice, the threshold for hardship under Article 79 CISG is also set very high, for example, a price fluctuation of over 100 % was rejected which suggests that the shift has to be extraordinary. 31 In addition to the threshold, also the foreseeability consideration limits the functional use of Article 79 CISG on hardship (especially if based on price fluctuations) because international trade is subject to continual and rapid changes. 32 It is a question for further debate whether limited room for the application of the CISG is indeed a problem when the original motivation to include hardship situations under the CISG umbrella of “impediments” to prevent domestic law interferences was achieved already. Considering the CISG as a legal instrument intended for professional merchants, in author’s mind it makes sense to greatly limit any “safety net” provided in and by Article 79 CISG and leave true consideration of the risks to the parties. In the case of Czech law, the situation is a bit different as Czech law follows Article 79 CISG for vis major but incorporates also separate, and allegedly more functional, solutions for hardship. Both will be addressed in the next section. 3. The Czech law approach to vis major and hardship situations Before the 2012 recodification, Czech private law contained a general rule allowing for exemption from liability in case of impossibility of performance but there was no general rebus sic stantibus doctrine 33 applicable on hardship situations. In its absence, some scholars argued that general principles of good faith and fairness could be used instead. 34 This would be similar to the CISG developments but in the Czech context, such an approach was never tested in court. Instead of extensive interpretation, the Czech private law reform of 2012 brought forward a new provision regulating hardship situations. 35 This development is not unique, the French contract law reform from 2016 followed a similar pattern, adding imprévision to its traditional force majeure rule, 36 and other jurisdictions such as China 37 or Germany 38 use a similar model. 30 Ibid. 31 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. 63, doi:10.1163/2211906x-00801003. 32 ZACCARIA, E. C. (2004) ‘The Effects of Changed Circumstances in International Commercial Trade’, International Trade and Business Law Review , 9, p. 136. 33 Changes in circumstances were recognized only in specific cases, such as an agreement on a future contract, see Section 289 of the Commercial Code and Section 50a(3) of Civil Code 1964. 34 ELIÁŠ, K. (2009) ‘Clausula rebus sic stantibus (Význam změny okolností pro trvání obligace ex contractu)’ [Clausula rebus sic stantibus (The importance of the change of circumstances for the duration of the ex contract obligation)], Obchodněprávní revue , (6), p. 153. 35 See Section 1765 of Civil Code 2012. 36 GRUNDMANN, S. and SCHÄFER, M.-S. (2017) ‘The French and the German reforms of contract law’, European Review of Contract Law , 13(4). p. 486, doi:10.1515/ercl-2017-0025. 37 Han, S. (2016) ‘Force majeure, change of circumstances and termination of contract’, Journal of Law, Society and Development , 3(1), p. 33. doi:10.25159/2520-9515/358. 38 WELLER, M.-P. and RIDDER, P. (2014) ‘Unforeseen circumstances, hardship, impossibility and force majeure under German contract law’, European Review of Private Law , 22 (Issue 3), p. 373, doi:10.54648/erpl2014034.

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