Fundamental Breach Research Articles

Rethinking non-conformity of a serious nature: From the CISG and the PICC’s concept of fundamental breach towards a Nachfrist principle—learning from the amendments to Catalan sales law’s cure regime

Abstract Whereas the European Commission’s endeavours to codify European contract law are at an impasse, the harmonization effect of European Union (EU) Directive 2019/771 should not be under-estimated. Such effect extends beyond consumer legislation and is particularly remarkable in EU jurisdictions that did not enact ad hoc consumer acts. This article takes the amendments to Catalan sales law after the transposition of Article 13 of the Directive as a benchmark. It delves into the recently introduced seriousness threshold under Article 13(4) lit. (c) of the Directive as an additional basis for contract avoidance in case of the delivery of non-conforming goods. The article further discusses whether such a serious nature threshold should (or can) coexist with the previous notion of fundamental breach and rethinks the contours of these legal thresholds from a cure perspective.

The right to avoid the international sale of goods contract: Comparison of Viet Nam to CISG and PICC

Foreign trade is an indispensable activity in the globalization era. Researching the liabilities of parties in performing the sale contracts and the avoidance right of parties in the contracts is a vital issue. Therefore, this article compared Vietnamese Commercial Law 2005 with the United Nations Convention for the International Sale of Goods (CISG) and Principles of International Commercial Contracts (PICC) regarding the avoidance of sale contracts, including the three aspects, fundamental breach, failure in performance obligations of contract at the end of adding time, and anticipatory breach. The findings not only enable Vietnamese merchants to master international rules in establishing foreign trading but also show differences and similarities between Vietnamese law and international rules. By doing that, this article puts forward some implications for rebuilding the definition of “fundamental breach” in Vietnamese commercial law. Also, this paper suggested that the avoidance clause of the Vietnamese law should include the claim to terminate the agreement of the innocent party due to the non-performance party’s failure to fulfill contractual duties at the end of adding time, and the other party will be constituted an “anticipatory breach”.

Theoretical aspects of the concept of fundamental breach in international sales contracts

Theoretical aspects of the concept of fundamental breach in international sales contracts

TYPES OF DAMAGES UNDER THE CISG

The breach of a contract of sale may cause damage. Naturally, the aggrieved party may claim damages as a result of the breach of the contract of sale. Therefore, the Vienna Convention on International Sale of Goods (CISG, 1980) regulates damages in Articles 74 -78 of the CISG. Article 74 provides foreseeability and full compensation principles as general principles for determining damages resulting from all types of breaches. Articles 75 and 76 regulate damages resulting from the fundamental breach caused by the avoidance of a contract of sale. Article 77 puts the injured party under the obligation to mitigate damage. Article 78 regulates the issue of determining interest rates. Although these provisions seem comprehensive at first glance, they do not cover some important issues. Case law, legal doctrine, and gap-filling rules are very important for the interpretation of these provisions. The purpose of this paper is to draw a line in the interpretation of these provisions on damages for breach of contract. The doctrinal research methodology shall be employed in this paper.

“Insistent as anesthetic”: difficult similes subserving the poetic context

Abstract Previous research has identified a type of nonstandard simile in which the ground is a non-salient feature of the source term (for example, the nonstandard hard as a lamp as opposed to the standard hard as a rock), and found this type to be common in poetry and much rarer in non-poetic discourse. Since these nonstandard similes entail a fundamental semantic breach and violation of a basic convention of the simile, how can their existence be explained? Here we claim that it is the poetic context itself, the poem within which these similes appear, which is the key to explaining their existence and their unique advantage. Through a series of poetic examples, including poems by Plath, Lee, and Rukeyser, we show how the semantic difficulty of the nonstandard simile serves the poem and fulfils various functions within it.

Bitna povreda ugovora prema konvenciji UN o ugovorima o međunarodnoj prodaji robe

The concept of fundamental breach of contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 1980 plays a pivotal role in determining the legal remedies available to the aggrieved party. It allows for contract termination only in instances where a breach is deemed fundamental. This paper delves into a comprehensive analysis of the institution of fundamental breach of contract and its characteristics, providing insight into how the Convention distinguishes between a fundamental breach and a non-fundamental breach. As a result, it assists in resolving potential uncertainties and dilemmas the aggrieved party might face concerning the choice of legal remedies. The analysis begins with an exploration of the background and drafting process of Article 25 of the Convention. The focus then shifts to an in-depth analysis of the institution of fundamental breach of contract. This covers how and why the distinction between a fundamental breach and a non-fundamental breach emerged, leading up to an intricate examination of all the conditions and features of a fundamental breach of contract, all with the aim of accurately defining this term in line with the provisions of the Convention. The study also encompasses a review of pertinent judicial and arbitral practices, aiding in a better understanding of the practical application and interpretation of the institution of fundamental breach of contract. Special attention is devoted to analyzing how the aggrieved party can be confident in its right to terminate the contract and how to sidestep potential hazards and consequences of an unjustified termination. Through a detailed review of the Convention's provisions and both judicial and arbitral practices, this paper offers a succinct insight into the institution of fundamental breach of contract in the context of international sales of goods. It investigates how contracting parties can safeguard themselves and how they can act in accordance with the rights and obligations stipulated by the Convention.

Refusal to Issue a Letter of Credit and Fundamental Breach under the CISG: Liverina (Australia) Pty Ltd. v. Daehyun Trading Co.

Refusal to Issue a Letter of Credit and Fundamental Breach under the CISG: <i>Liverina (Australia) Pty Ltd. v. Daehyun Trading Co.</i>

THE FUNDAMENTAL BREACH OF CONTRACT OF SALE UNDER THE CISG

While a breach of contract implies the failure of one party to fulfil the obligations arising from the contract, the fundamental breach of contract is an aggravated form of breach of contract. The concept of the fundamental breach of contract of sale is recognized in Article 25 of the CISG (UN Convention on Contracts for the International Sale of Goods, 1980). In an ordinary breach of contract of sales, the applicable legal remedies are ordinary legal remedies (such as substitution of goods, damages). In case of a fundamental (substantial) breach, the unilateral declaration of termination of the contract of sale is used as the last resort (to void the contract). Given that it is perceived as a special aggravated type of breach of contract of sale, the fundamental breach has to be carefully analysed in more detail.

The Ambivalent Notion of ‘Fundamental Breach’ in Indian Law of Contract: Towards a New Paradigm

The Ambivalent Notion of ‘Fundamental Breach’ in Indian Law of Contract: Towards a New Paradigm

Pravna sredstva prodavca za slučaj kupčeve povrede ugovora o međunarodnoj prodaji robe

The legal remedies available to a seller in case of a buyer's breach of contract on international sale of goods are predominantly contained in Articles 61-65 of the UN Convention on Contracts for the International Sale of Goods (CISG). Article 62 of the CISG entitles the seller to require from the buyer to perform the obligations. Under Article 63 of the CISG, the seller may fix an additional period of time of reasonable length for the performance of the buyer's obligations. Article 64 defines the conditions under which the seller is entitled to declare the contract avoided. The first situation in which the seller can avoid the contract is where the buyer has committed a fundamental breach of contract. Article 64 also provides that the seller can avoid the contract if the buyer has not paid the price or taken delivery of the goods within the additional period of time fixed by the seller under Article 63(1) of the CISG. In case the buyer has paid the price, the seller loses the right to avoid the contract if it does not declare avoidance within the periods stated in Article 64(2). In cases of late performance, the seller loses the right to declare the contract avoided unless it does so before becoming aware that performance has been rendered. In regard to any breach other than late performance, there is a distinction according to whether or not the seller has fixed an additional period for performance in accordance with Article 63 (1). In the absence of an additional period for performance, the seller loses the right to declare the contract avoided unless it declares avoidance within a reasonable time after the seller knew or ought to have known of the breach. In case the seller has fixed an additional period of time for performance by the buyer, the seller loses the right to declare the contract avoided unless it declares avoidance within a reasonable time after the expiry of the additional period fixed by the seller or after the buyer has declared that it will not perform his obligations within such an additional period. Finally, under Article 65 of the CSIG, if the buyer fails to make the specification of the goods, either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him.

RIGHTS TO OIL THEFT AND ILLEGAL REFINERY IN NIGERIA

The reactions of the ethnic communities which have morphed into violent militant groups and ganglands in the Niger Delta region of Nigeria to State and industry control of land and mineral resources require a very close study. A comparative analysis of the current situation in Nigeria with what is obtained in the early days of the European civilization when the challenges of governance and economic crimes were emerging from the womb of the industrial revolution is equally of importance. If sovereignty resides ultimately with the people and the State governs with the consent of the citizens and the ultimate responsibility of the State and business is the welfare of the citizens, a fundamental breach of the social contract leaves the people with the right not only to abolish the State but to sabotage business in social banditry. This paper tries to apply the general principles of the theories of social banditry and social contract to the phenomenon of oil theft and illegal refineries in the Niger Delta region of Nigeria. It employs the comparative, historical and analytical methodology in presentation while relying on secondary materials and doctrinal research method. It argues that the crimes of oil theft and illegal refineries have arisen from the lack of the development of the Niger Delta by both the State and the multinational oil companies and that they are an expression of the rights to resource control by indigenous communities after 50 years of State and industry control of same have failed to yield development on the ticket of the United Nation’s Resolution 1803 of 1962 guaranteeing national sovereignty over natural resources. It finds that they fall within Hobsbawm’s social banditry thesis and that the basic conditions for the abolition of the State under the social contract thesis have been largely met by the economic and socio-legal contexts prevailing in the Niger Delta region of Nigeria.

Wartime Sexual Acts as Prosecutable War Crimes

Human history is littered with the mass rape of women particularly as a military strategy in warfare, dating back centuries from ancient Greek, Roman, and Hebrew concubines through the Middle Ages to the 20th century ‘comfort women’ of the 2nd World War. Ancient literature explicitly refers to rape or the seizure of vanquished women, who were regarded as the enemy’s property, to become wives, servants slaves, or concubines. The plight of women worsened in the twentieth century when civilian women suffered the most consequences of armed conflicts including rape. Rape served as an oppressive and humiliating tool to severe family identity to dominate, demoralize, and destroy the entire enemy society and way of life. In the past, there appeared to be no international law that specifically dealt with rape in armed conflicts. This was caused by the ambivalent relationship between the law of armed conflict and gender-based crimes. Rape was overlooked as an unfortunate yet inevitable by-product of war. Both international humanitarian and human rights laws did not initially recognize rape as a serious war crime and a fundamental breach of human rights. This deafening legal silence and gap are being addressed through an ongoing evolutionary process by criminalizing wartime predatory sexual acts as a war crime, crimes against humanity, and even genocide. However, with the developments of international law and its practice, for the first time in the history, mass rape and sexual enslavement in the time of war be regarded as ‘crimes against humanity’ in a landmark ruling from the Yugoslav War crime tribunal in the Hague on 22 February 2001. But, even before that, some prior legal instruments for example the Lieber Code, promulgated during the American Civil War regarded [wartime] rape as war crime with capital punishment. Thus, this paper aims to analyze how the historical legal instruments have articulated the extend of criminality and culpability of wartime rapes and other sexual violence and their nexus with crimes of humanity, genocide, and war crimes within the corpus of international norms and criminal prohibitions as well as the historical development of wartime sexual acts as prosecutable war crimes.&#x0D;

Pojam bitne povrede kod ugovora o međunarodnoj prodaji robe

The fundamental breach of contract is defined in Article 25 of the UN Convention on Contracts for the International Sale of Goods (CISG), which states: "A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result." When a fundamental breach of contract occurs, the deprived party (seller or buyer) has a right to avoid a contract. Avoidance of contract is the last resort remedy applicable in case other remedies are ineffective. Pursuant to Article 25 of the CISG, there are two criteria which must be fulfilled for a fundamental breach of contract to exist. The first criterion is objective; it comprises two conditions: a) there is a breach of obligation defined in the contract or in the CISG; and b) such a breach substantially deprives the other party of what the party is entitled to expect under the contract. The second criterion is subjective: the breaching party has to foresee such a result. Although this criterion is essentially subjective, it contains an objective element, embodied in the use of the reasonable person standard. Hence, even when the breaching party has not foreseen substantial deprivation of the other party as a result of breach, a substantial breach of contract will be deemed to exist if a reasonable person of the same kind in the same circumstances could have foreseen such a result.

A Study on the Fundamental Breach of Contract and Additional Period under the UN Convention on the International Sale of Goods

A Study on the Fundamental Breach of Contract and Additional Period under the UN Convention on the International Sale of Goods

General public’s attitude toward governments implementing digital contact tracing to curb COVID-19 – a study based on natural language processing

PurposeGovernments worldwide are taking various measures to prevent the spreading of COVID virus. One such effort is digital contact tracing. However, the aspect of digital contact tracing was met with criticism, as many critics view this as an attempt of the government to control people and a fundamental breach of privacy. Using machine learning techniques, this study aims to deal with understanding the general public’s emotions toward contact tracing and determining whether there is a change in the attitude of the general public toward digital contact tracing in various months of crises. This study also analyzes the significant concerns voiced out by the general public regarding digital contact tracing.Design/methodology/approachFor the analysis, data were collected from Reddit. Reddit posts discussing the digital contact tracing during COVID-19 crises were collected from February 2020 to July 2020. A total of 5,025 original Reddit posts were used for this study. Natural language processing, which is a part of machine learning, was used for this study to understand the sentiments of the general public about contact tracing. Latent Dirichlet allocation was used to understand the significant issues voiced out by the general public while discussing contact tracing.FindingsThis study was conducted in two parts. Study 1 results show that the percentage of general public viewing the aspect of contact tracing positively had not changed throughout the time period of Data frame (March 2020 to July 2020). However, compared to the initial month of the crises, the later months saw a considerable increase in negative sentiments and a decrease in neutral sentiments regarding the digital contact tracing. Study 2 finds out the significant issues public voices out in their negative sentiments are a violation of privacy, fear of safety and lack of trust in government.Originality/valueAlthough numerous studies were conducted on how to implement contact tracing effectively, to the best of the authors’ knowledge, this is the first study conducted with an objective of understanding the general public’s perception of contact tracing.

The Interpretation and Application of the 'Sphere of application of CISG', Formation and Modification of CISG Contracts, and Fundamental Breach of Obligations of CISG Parties and their Remedies: Some Evidence from China

The United Nations Convention for International Sale of Goods (CISG) was entered into force on 1 January 1988 and its impact in internationalizing commercial law and business transactions is pivotal. The People’s Republic of China adopted CISG on 11 December 1986 almost after a decade of the entry into force of CISG. More importantly, when the People’s Republic of China adopted its domestic contract law following the country’s legal reform in 1999, its new contract law is highly influenced by CISG. This paper after analyzing the judicial and arbitral practice of three decades of the application of CISG in the People’s Republic of China concludes that the practice is also ‘CISG-friendly’.

국제물품매매협약(CISG)상 매도인의 본질적 계약위반과 위험이전에 관한 연구

국제물품매매계약에 관한 UN협약 제70조는 위험이전과 매도인의 본질적 계약위반으로 인한 매수인 구제와의 관계를 정하고 있다. 그러나 매수인이 행사할 수 있는 구제수단 유형에 따른 제70조의 효과나 매도인이 본질적이지 않은 계약위반을 하였을 경우 제70조의 적용 여부 등과 같은 구체적인 내용에 대해서는 정하고 있지 않아 해석상 분쟁의 소지가 있다. 따라서 본 연구는 제70조를 중심으로 조문해석 및 매도인의 본질적 계약위반으로 매수인이 선택한 구제수단과 위험이전의 효과를 사례를 통한 심층적인 분석으로 본조에 대한 법적기준을 제시한다. 이를 통해 위험이전을 둘러싼 분쟁을 예방하고 실무자들이 제70조를 이해하는데 이론적ㆍ실무적으로 활용할 수 있는 유용한 지침을 제공하는데 연구의 목적을 둔다.

Fundamental Breach of Contracts of Affreightment: A Comparative Analysis of the United Kingdom, United States and Canadian Jurisprudence

The ageless doctrine of fundamental breach of contracts of affreightment has received diverse treatments from courts of different countries. Although some academic writers have argued that the doctrine was abolished in the Photo Productions case, this paper has attempted to show that the doctrine is still alive, albeit in several names like unconscionability, unreasonableness, deviation and quasi-deviation in different jurisdictions.

Assessing Exclusion Clauses: The Supreme Court of Canada’s Three Issue Framework in Tercon Contractors Ltd v British Columbia(Transportation and Highways)

IntroductionThe Supreme Court of Canada's 2010 decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways)1 concerned the enforceability of a broadly drafted exclusion clause in the context of public procurement tendering. It is noteworthy for several reasons. First, the decision unanimously articulated a three-issue framework for determining the enforceability of exclusion clauses. Second, and on a more theoretical front, Tercon offered competing visions as to how contracts are to be interpreted. Though the Supreme Court was unanimous that parties to a contract should - of course - generally be bound by its terms, the majority and dissent followed significantly different paths for determining the scope of the agreement at bar. Justices LeBel, Deschamps, Fish, Charron, and Cromwell (in a majority decision delivered by Cromwell J.) approached the task of contractual interpretation by elevating the long-standing and judicially enforced values that specifically inform the tendering process2 including notions of integrity, transparency, and business efficacy. The dissent, per McLachlin C.J., Binnie, Abella, and Rothstein JJ., in a judgment delivered by Binnie J., emphasized another set of long-standing andjudicially enforced values, namely freedom of contract and fidelity to the legal principle thatcontracts are tobe enforced according to their words. And third, the Supreme Court of Canada laid to rest the doctrine of fundamental breach as it applies to exclusion clauses - or attempted to at least.3In order to explore these themes, this comment provides a brief account of the facts of Tercon and the Supreme Court of Canada's three issue framework concerning the enforceability of exclusion of liability clauses. It demonstrates that Tercon is, at bottom, simply a clearer statement of the law first articulated by Dickson C.J. and Wilson J. in Hunter Engineering Co v Syncrude Canada Lid.4 This comment then offers some brief conclusions, including that Canada's pre-Tercon caselaw retains much of its precedential shine.Tercon concerned the enforceability of a wide-reaching exclusion of liability clause (called a no-claims clause in this case) emanating from a request for proposals (RFP) for highway construction by the Province of British Columbia (the Province). The exclusion clause in Contract A stated as follows:Except as expressly and specifically permitted... no Proponent shall have any claim for compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a Proposal each Proponent shall be deemed to have agreed that it has no claim.5The main question for the court was whether this clause sanitized breaches of Contract A by the Province which included intentionally accepting a bid from an ineligible bidder.6 The successful bid ostensibly came from Brentwood (an eligible bidder) but, in truth, was made on behalf of a joint venture between Brentwood and Emil Anderson Construction Co (EAC). EAC's participation rendered the bid patently ineligible; the Province plainly and clearly knew that.7 Also of tremendous concern was that the Province concealed its selection of an ineligible, joint venture bid by making it appear that Brentwood was the sole bidder.8 As noted by Justice Cromwell, the trial judge (Justice Dillon) made it clear that the Province:(1) fully understood that the Brentwood bid was in fact on behalf of a joint venture of Brentwood and EAC; (2) thought that a bid from that joint venture was not eligible; and (3) took active steps to obscure the reality of the situation.9Given these troubling circumstances, the trial judge refused to permit the Province to shelter behind the exclusion clause on two grounds. First, she concluded that the clause was ambiguously phrased, which contra proferentem resolved in favour of plaintiff Tercon.10 Second, she applied the Supreme Court of Canada's dual analysis in Hunter Engineering,11 as combined in Guarantee Co of North America ? …

Consideration of the meaning of fundamental breach of contract under Article 25 of the United Nations Convention on Contracts for the International Sale of Goods -Focusing on the trend of Korea's district court cases-

Consideration of the meaning of fundamental breach of contract under Article 25 of the United Nations Convention on Contracts for the International Sale of Goods -Focusing on the trend of Korea's district court cases-