The CISG, Unlike English Law, Places Too Much Emphasis on Promoting Performance of the Contract despite a Breach by the Seller

This article critically discusses the statement that the CISG places too much emphasis on promoting performance of the contract despite a breach by the seller, in contrast to English law. It covers the origin and development of CISG, its characteristics and requirements, and critical analysis of contract law, performance of contract, and breach of contract by seller under both legal systems. The article is relevant for students and professionals in the field of international trade law.

“The CISG, Unlike English Law, Places Too Much Emphasis on Promoting
Performance of the Contract despite a Breach by the Seller”
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Table of Contents
Introduction................................................................................................................................3
Critical Discussion and Arguments............................................................................................4
The International Sale of Goods (CISG): The Origin............................................................4
CISG: Development, Concept, Characteristics, and Requirements in International Legal
Regimes..................................................................................................................................5
The English Law: Concept, Segregation, Traits....................................................................9
Critical Analysis of the Contract Law, Performance of Contract and Breach of Contract by
Seller under English Law and CISG....................................................................................12
Contract Law in the English Legal System......................................................................12
Performance of Contract in English Legal System..........................................................14
Breach of Contract in English Legal System...................................................................15
CISG’s Emphasis on Performance of Contract and Breach of Contract by Seller..........16
Argument on “the CISG, unlike English law, Places too much Emphasis on Promoting
Performance of the Contract Despite a Breach by the Seller”.........................................18
Conclusion................................................................................................................................20
Bibliography.............................................................................................................................22
Appendix..................................................................................................................................27
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Introduction
The legal system is considered as a significant procedure within a society through which legal
authorities can interpret as well as enforce the legal regimes. The complete elaboration of
legal rights and responsibilities are associated with the general legal system1. There are three
distinguishable legal streams including civil law, religious law and common law2.
Contextually, the English law is defined as a common legal system, which is followed in
Wales as well as England. Both the criminal law and civil law are identified as the integrated
legal establishments, which is enforced by the English legal system. Each of the streams in
this legal system has its own significant procedures and court systems3. Legal systems are the
critical aspects that are significantly associated with different inferences of the regular
procedures. The legal implication of business is one of the essential aspects that are
highlighted under the vast array of English law. International trade and the respective legal
systems are important for continuing the corporate processes. The International Sale of
Goods (CISG) is one of the streams of the international legal system, which offers uniform
and contemporary cross-border sale of goods contract4. At present, the UK is one of the
industrialised nations, which does not adopt CISG. It is a contradictory matter of legal
arguments wherein the existing analysis focuses on the competition as well as relative merits
related to the English law and CISG5.
1 US Legal Inc., ‘Legal System Law and Legal Definition’ (Legal Definitions, 2016)
<https://definitions.uslegal.com/l/legal-system/> accessed 21 January 2019
2 The Regents of the University of California, ‘The Common Law and Civil Law Traditions’ (The Robbins
Collection, 2019) <https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html>
accessed 21 January 2019
3 Chartered Institute of Legal Executives, ‘The Legal System of the United Kingdom’ (CILEx, 2019)
<https://www.cilex.org.uk/about_cilex/about-cilex-lawyers/what-cilex-lawyers-do/the-uk-legal-system>
accessed 21 January 2019
4 United Nations Commission on International Trade Law, United Nations Convention on Contracts for the
International Sale of Goods (Vienna, 1980) (CISG) (UNCITRAL, 1980) para 4
5 Benjamin Hayward, Bruno Zeller and Camilla Baasch Andersen, ‘The CISG and the United Kingdom—
Exploring coherency and private international law’ [2018] 67(3) ICLQ, 607
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The present study also represents a similar context wherein the discussion concentrates on
“the CISG, unlike English law, places too much emphasis on promoting performance of the
contract despite a breach by the seller”. To deliver a comprehensive understanding of this
statement, the study aims to portray the details related to the CISG and it’s concerning areas
in contrast to the English law along with its regimes. In both the cases, the discussion is
significantly emphasised on the ‘sale of goods’ contract and breach of the contract elements
for attaining the aim of this assignment accordingly.
Critical Discussion and Arguments
The International Sale of Goods (CISG): The Origin
The core legal body of the United Nation system is referred as the United Nations
Commission on International Trade and Law (UNCITRAL), which develops significant legal
regimes in the field of international trade law. Universal specialised commercial law
reformation is a unique concept that is thoroughly distributed by the UNCITRAL being the
important legal body. The business of UNCITRAL is mainly related to the modernisation as
well as harmonisation of the associated legislation of the international business proceedings.
Besides, the legal body provides the membership for the commercial law reform system for
the past 50 years6. The working body of the UNCITRAL covers critical subject matters by
holding the annual sessions of Commission in alternate years at the Vienna International
Centre and New York. The member states and international organisations are invited to
attend such kind of sessions as observers along with the Commission and working body of
UNCITRAL in order to deliver a set of fairer legal regimes for international trade system.
The observer groups are also permitted to take part in the discussion to some extent as per the
6 United Nations Commission on International Trade Law, About UNCITRAL (United Nations, 2019) paras 1,2
and 3
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required and restricted norms. The legal body distinctively supports sustainable development
goals in the context of internal trade law7.
The legal body shows negotiable universal participation as well as a reflection of balance
between the national and regional interests, which includes economic along with legal
aspects. The three distinguishable procedures under this body are convention, description and
interpretation of model law along with the provision for the legislative guidance. The
evaluation of the legislative compatibility with diversified legal traditions within the field of
the international and domestic corporate market region is also considered under the concerns
of UNCITRAL. CISG is the form of the United Nation Convention to offer a clearer
standpoint towards the international organisations and other associated market players. The
origin of CISG is from UNCITRAL wherein the legal body portrayed four main parts. Each
of the parts comprises different legal regimes such as ‘sphere of application’, ‘general
provision’, ‘formation of contract’, ‘parties’ obligation’, ‘remedies’, ‘passing of risk’, ‘other
issues’, and ‘final clauses’8. In the context of interpreting this convention, the Commission
highlighted international characters and the distinctive requirement of informity promotion
through the application of this specific regime to increase faith in the context of the
international trade system9.
CISG: Development, Concept, Characteristics, and Requirements in International
Legal Regimes
In relation to the initial discussion, it can be asserted that the purpose of CISG is associated
with an in-depth form of international legal regimes. The provision of a contemporary
system, with the association of fairness and uniformity within the international contracts of
7 Ibid
8 Vikki Rogers, ‘UNCITRAL’ (Institute of International Commercial Law, 2018)
<https://www.aallnet.org/fcilsis/wp-content/uploads/sites/7/2018/01/UNCITRAL.pdf> accessed 21 January
2019
9 Ibid
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sales of goods can be emphasised by CISG10. In the 19th century, within transport and
communication legislations, industrialisation and improvement were essential for the
international community. In this significant time span, the Belgian Government’s report on
the proposed Antwerp Exhibition (1885) highlighted the spirit of the situation by stating,
“Commercial relations are at the present day nothing if not international; they are becoming
more and more so, and what a leap forward they would take if they were emancipated from
the obstacles, uncertainty and expense arising from diversity of laws!”11. In 1980, the CISG
was adopted at Diplomatic Conference in Vienna to set a significant pillar of the “broad scale
unification of law envisioned by the international community in relation to international
trade”12. To promote this uniform legal regime within the field of international sales of
goods, the Secretariat of CISG attempts to promote the interpretation of it in various ways
such as developing the provisions for the “case law on UNCITRAL texts” system and
UNCITRAL Digest of case law on CISG. The vast databases of the case law under
UNCITRAL, the academic writing supplements and the valuable source material are then
utilised to prepare the CISG Digest. This is done to ultimately enrich the degree of
information of CISG for highlighting the vast array of international legislative aspects in
association with the sales of goods13.
The adoption of the CISG happened in 1980 while in 1988, it was enforced in the
international field of business trade. The contract of sale can be considered as the significant
pillar of the international trade for all the countries across the globe. Contextually, it is
10 United Nations Commission on International Trade Law, United Nations Convention on Contracts for the
International Sale of Goods (Vienna, 1980) (CISG) (UNCITRAL, 1980) para 1
11 Thomas Barclay, ‘The Antwerp Congress and the Assimilation of Mercantile Law’ [1886] 2 LQR 66, 66
12 Nevi Agapiou, ‘Buyer’s Remedies Under The CISG And English Sales Law: A Comparative Analysis’ [2016]
UL 25
13 Institute of International Commercial Law, ‘United Nations Commission on International Trade Law
(UNCITRAL)’ (IICL, 2019) <http://iicl.law.pace.edu/cisg/united-nations-commission-international-trade-law-
uncitral> accessed 21 November 2019
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observed that the diversified legal traditions and the degree of economic development are not
considered as the issues associated with the adoption of CISG in order to make the scenario
desirable as well as appropriate for the players. Based on the core understanding of the
legislative format, it can be ascertained that CISG is the result of the effective legislative
effort, which was accustomed to the framework in the 20th century14. The associated legal text
is offering a significant balance between the interest of the buyer and the seller in the context
of both international and national levels. With the adoption of CISG, the individual nation
can witness uniform legislation for the ‘sale of goods’ between the national and international
parties as per the contracts between the states. The application of CISG avoids the
implementation of private international legislative formats and norms to maintain the
certainty as well as predictability within the international sales and legal contracts. The
neutral body of legislation is the characteristics of CISG that work accordingly for different
corporate enterprises irrespective of their sizes15.
The administrative aspects of CISG highlighted the concept of international ‘sales of goods’
contract for the private businesses wherein the format distinctively asserted about the
exclusion of sales of services, specific sales of goods and sales to customers. The application
of the contracts in accordance with CISG between the two parties is only possible when the
parties belong from different contracting states. Besides, there is another legal regime i.e.
rules of private international law in the contracting states, based on which the CISG can be
applicable. Contextually, the application of this specific legislative format is significantly
associated with the virtue of the respective parties as per their choice. The international ‘sales
of goods’ is a complex field from the legislative perspective especially in terms of different
elemental concepts such as the validity of the contract and its impact on the goods sold,
14 Institute of International Commercial Law, ‘United Nations Commission on International Trade Law
(UNCITRAL)’ (IICL, 2019) <http://iicl.law.pace.edu/cisg/united-nations-commission-international-trade-law-
uncitral> accessed 21 January 2019
15 Ibid
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which can be considered to be excluded from the Convention’s scope16. As previously
mentioned, CISG has significant parts of the application in the empirical field of operation.
The second part of the deal is associated with the formation of the contract wherein the
exchange of offer and acceptance of the deal is involved. The next phase of CISG deals is
related to the obligations that are faced by the associated parties within the contract. On a
similar note, the association between the stipulated quantity and quality highlighted the
inclusion of the property-transferring aspects in the goods17.
The legal procedure also included buyers’ obligations in terms of the payment and acceptance
of the deliverable goods from the sellers. On a similar context, the common legal regime
offers significant remedies in the context of the breach. Besides, for critical issues such as
‘breach of contract’, the CISG norms asserted about the required performance, claim for
damages and avoidance of the contract. There are certain other regulations under the CISG
format, which is known as additional rules. These specified legislative aspects affirm about
the risks, damages, anticipatory ‘breach of contract’ and indemnity from contract’s
performance. Contextually, it is also found that the ‘freedom of form of the contract’ is also
possible to gain under the CISG. This can initiate a distinctive declaration in the basis of a
legal regime to develop a specific written form, which is required to complete the legislative
format accordingly18. The application of CISG only allows the international transaction
related implications while the procedure distinctively avoids the resources of the private
international law. To discuss the traits of CISG, it must also be emphasised that the
international contracts are considered to be excluded from the best application of the legal
regime. Additionally, the subject of the contracts is concerned with the valid legal choice of
individual parties while the CISG norms are not connected with this specific aspect. On the
16 Ibid
17 Ibid
18 Ibid
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other hand, complete domestic sale contracts are also not associated with CISG norms
because they entirely follow the domestic law. The CISG norms do not have any financial
impacts on the contracting states. Additionally, for domestic level management reporting
obligations and the presence of dedicated body do not require19.
The English Law: Concept, Segregation, Traits
Considering the origin of the English law, the year of 1066 has been found to be significant
when William occupied England. This significant event changed the legal framework of the
region and indicated the beginning of the English law. With the assistance of these legal
changes, the English Empire begun to restructure. At the initial phase of the English law,
there were three types of the legal services including Knight Service (i.e. military service),
Serjentry (i.e. personal service), and Frankalmoin (i.e. church service). The most common
aspect of the old English legal system was Burgage (i.e. leasehold)20. Considering these
distinctive legal aspects under the old English legislative format, the following pyramid
structure can be developed:
Figure 1: Pyramid Structure of Legal System in Ancient England21
19 Ibid
20 CPP, English Law (Origin of Law, 2015) 2
21 Ibid
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The ancient legal system was deliberately associated with the land, owners, and tenants,
which was considered as the legal elements. With the gradual development of the legal
system under English law, improvements were made such as “grantor would enjoy fruit of
land if he could trust grantees” and “common law courts determined that control of land lay
with grantees”22. Considering such changes, the English law is found to be the most
prestigious as well as authoritative statutory legislative framework, which allows distinctive
judicial decisions and its usage as the source of law. The England and Wales’ regulatory
justice system has followed the significant hierarchical format of the sources, which includes
primary and secondary legislation, the regulations of the case laws under common law and
equity, general customs, parliamentary conventions, and books of authority23. The customary
law of Wales and England was eliminated by King Henry VIII's Laws in Wales Acts to
maintain the legal conformity24. Contextually, it has been highlighted that the English legal
system does not concern towards a single legal regime, and hence, it is different from that of
Northern Ireland and Scotland. Its court structure is found to be common across the nation
following a hierarchical aspect to comply with the requirement of fairness and proper
management25. Considering the old English law, the readers can find the base of development
regarding the modernisation of the legal system, which associates with legislation and statute
law, common law, equity and customs law. The legislation can be adopted by the government
agencies along with its natural laws and legal codes26.
In order to discuss regarding the characteristics of English law, it has been emphasised that it
is based on the tradition of common law. This system can be considered as ‘judge made law’,
22 Ibid, 4
23 Gary Slapper and David Kelly, English Legal System (17th edn, Routledge 2016)
24 Law Commission, Form and Accessibility of the Law Applicable in Wales (Consultation Paper No 223, 2015)
para 2.4
25 Refer to 20
26 Refer to 20, p. 6
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which continues its development over the time based on the diversified decisions made by the
Judges of the English Courts as the consequences and results of the cases. In the context of
the essential source of English law, judicial precedents are found to be pivotal under the
common law. The English common law system is different from the civil law system of the
region namely Latin America and Western Europe. The codified and systematic legal regimes
have been gathered from the consistent body of the legal norms27. Under the distinguishable
English law, the judges have significant roles to develop the justifiable case laws and confirm
the actual meaning of the Acts of the Parliament. The judges have the responsibility to
generate impartial decisions on behalf of the parties associated with the respective cases as
they are the independent bodies of the government28. The accusatorial court procedure of the
English law signifies that judges are not allowed to investigate the cases. The judges are only
concerned about the evidence that is presented to them related to the cases. Based on the
evidence, the judges require identifying the disputes. This procedure is known as the
adversarial system of justice, which is compared with the inquisitorial procedure under the
European legislative systems. This specific system has a unique characteristic as per which
the involved judges allow to investigate the cases and gather the evidence in order to identify
the disputes29.
Critical Analysis of the Contract Law, Performance of Contract and Breach of Contract
by Seller under English Law and CISG
Contract Law in the English Legal System
The terms of the contract sets the duties of each of the parties under a significant legal
agreement wherein two distinctive types of terms can take part i.e. ‘express’ and ‘implied’.
27 PRAVST, The characteristics of English law (Central Features of the English Legal System, 2018) paras 2
and 3
28 Refer to 27
29 Refer to 27
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11

The express term is laid down by the parties and implied terms read out in the court to
identify the nature of the legal agreement along with the parties’ intentions, based on the legal
regimes. The contract terms can be highlighted in different forms i.e. entirely oral, entirely
written and the combination of the partly oral and partly written. The terms are
distinguishable from the prior statement that was made before the development of the
contract. According to the English law, the contract law comprises mainly two types of
statements i.e. “a representation about a state of affairs” and “a promise that something will
or will not occur in the future”30. Both the statements can change into the terms of the legal
agreement between the parties wherein the contracts are not entirely written or oral or
combined. Considering the importance of the statement within the oral agreement under
English law, the responsible court must consider a vast range of the associated factors31.
Similar consequences can be found in the case of Bannerman v. White32, Routledge v.
McKay33,34, and Schawel v. Reade35. In the oral contracts, the statement is considered as the
term (importance of statement) and the timing of the statement is essential. If the statement
and the conclusion of the contract have more time between them, the oral statement can be
held as the term of the respective contract. Moreover, the strength of the statement, special
knowledge as well as skills of the parties is also considered in the oral provision. Oral
statements in the written contracts can also be included under the English legal system36.
From the evidence, it is also highlighted that the rectification of the document can be
recorded as per the previous oral agreement between the parties for admissible aspects.
However, within the English legal system, the contract law has certain exceptions including
30 Emily M. Weitzenboeck, English Law of Contract: Terms of contract (Norwegian Research Center for
Computers & Law, 2012) 2
31 Refer to 30
32 [1861] 10 CBNS 844
33 [1954] 1 WLR 615 Court of Appeal
34 Ca 10 Mar 1954
35 [1913] 2 IR 81
36 Refer to 30
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various criteria such as ‘proof of custom’ or ‘trade usage’, clarify ambiguity, show capacity
of parties, show how contract operates, and support or rebut implied terms37.The legal
regimes of the English law also comprise the elements such as collateral contracts, agreement
clauses, the significance of the wordings related to the legal contract or agreement between
two parties. The scenario also highlights the four forms of contracts such as ‘implied by the
fact’, ‘implied by law’, ‘implied by custom’ and ‘implied by the trade usage38.
There are three distinguishable types of contractual terms, which are significant and are
related to the contractual facts related to other elements. These contractual terms are
conditions, warranties, and innominate terms39,40. Conditions are the description of
agreements’ terms between two parties. However, it is not adequately determined whether
‘terms’ are considered as ‘conditions’. In a similar context, the case of Schuler AG v.
Wickman Machine Tool Sales Ltd.41,42 can be considered an inference. The sales of goods Act
1979 offers such terms that associate with the ‘title to goods’ and ‘quality of goods’ as
implied into the customer contracts. In accordance with the English law, the less important
conditions of the contract can increase the chances of the breach and the innocent party will
not be able to terminate the agreement. In the context of ‘innominate terms’ under English
law, it can be considered a condition or warranty and breach of any of this form is identified
as trivial for the depending situation and associated parties43. Such type of concern was first
highlighted in the case of Hong Kong Fir Shipping Co. Ltd. v. Kawasaki Ltd.44. The
identification of this specific category under the English legal system can be the new edge of
37 Refer to 30
38 Refer to 30
39 E-Lawresources, Conditions, warranties & innominate terms (Contract Law, 2018) <http://e-
lawresources.co.uk/Conditions%2C-warranties-and-innominate-terms.php> accessed 22 January 2019
40 Jill Poole, Textbook on Contract Law (12th edn, Oxford University Press 2016) part 2
41 [1974] AC 235 House of Lords
42 HL 4 APR 1973
43 Refer to 30
44 [1962] 2 QB 26 Court of Appeal
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the law, which offer significant flexibility to law enforcement. However, it is also argued that
the situation can generate potential chances for uncertainty. For further details regarding such
matters, the cases such as The Mihalis Angelos45 and follow-up cases including Bunge Corp.
V. Tradax Export SA46 as well as The Naxos47 can be considered.
Performance of Contract in English Legal System
Performance under the English law is associated with a contract between two parties. In
relation to the successful result, the performance in contract law needs discharge of a person,
who will be liable for future contract and bound to act accordingly under the procedure. As
previously mentioned, the contract needs to incorporate two distinctive parties. Each of the
party within the contract has to perform as per the promises under the stipulated terms and
conditions stated in the contract in written format. In the context of the controversial
implication of the contract, most often it is observed that the meaning of promise can be
misinterpreted. At such condition, the English law highlighted the courts’ and judges’
responsibility as they need to decide the person (i.e. party), who is bound to perform and the
other party need to understand the manner. Considering the contract under English law, the
judges are responsible to find out whether the rights of the individual party are maintained
and have received the benefits as the promise projected in the contract at the time of its
establishment. The English law in the context of the contract law and performance of contract
discourage the reasonable interpretation of the promises to eliminate the further
inconveniences and negative implications between parties. Most of the time, the parties
involved in a contract understand the literal meaning of the contract provisions along with the
promise. However, the requirement of the contract only establishes when the true meaning of
45 [1970] 3 WLR 601
46 [1981] 1 WLR 711 House of Lords
47 [1990] 1 W.L.R. 1337
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the legal elements as well as the intents of the respective legal contract has been understood
by both the parties48.
Breach of Contract in English Legal System
Generally, a contract is considered to be breached when it reveals a legal failure for different
reasons associated with the performance, forms of contract or terms. It comes under the
English courts when a party or both the parties claim about the contract was breached. The
breach of contract can be considered as material or minor. The material breach of the contract
includes certain factors such as ‘the amount of benefit received by the innocent party’,
‘whether innocent party adequately compensated against the damages’, ‘performance of
breaching party’, ‘hardship of breaching party’, ‘behaviour of breaching party’, and
‘likelihood of the breaching party’49. In a similar notion, it is highlighted that if the
(breaching) party fails to perform as per the requirement of the contract, the innocent party
still can receive the specified services as mentioned in the agreement. Most often it is
emphasised that minor breach of contract is considered in a situation when the breach
happened due to ‘specific delivery day of goods’ and ‘reasonable delays by a party’ involved
in the agreement50.
In the context of the minor breach of contract, the innocent party needs to perform under the
contract for helping to recover the damages that happen due to the breach. For instance, if a
seller delays in delivering the product, the buyer must need to pay for the products but the
buyer can recover the damage caused by the delay considering the minor breach of contract
in the English law51. According to the English legal system, the term of contract dictates
about the standard ways to perform the contract for each of the involved party. The terms of
48 Refer to 30
49 Judicial Educational Center, ‘Breach of Contract’ (Institute of Public Law, 2019)
<http://jec.unm.edu/education/online-training/contract-law-tutorial/breach-of-contract> accessed 22 January
2019
50 Refer to 30
51 Refer to 30
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the contract should include clarity in expression or implied by the conduct of law, which can
determine the efficacy of the contract’s purposes with the passage of time. Contextually, the
performance of the contract can fall short, when the terms of contract comes under the
characteristics of the breach of contract aspect52.
CISG’s Emphasis on Performance of Contract and Breach of Contract by Seller
According to the CISG’s Article 46, the seller has the right to search for the specific
performance under the contract. The legislative provisions of the CISG generally attempt to
avoid the uncertainty under the sales of Goods Act. Besides, the remedy for a contract’s
drawbacks considering the buyer’s performance is significantly limited in CISG. Under the
specific concerns of CISG in the performance of the contract, the buyer has no right of
avoidance. Contextually, the buyer can perform specific tasks at the time of breaches from
the side of the seller as per the provisions stated in Article 39 and Article 46. Article 28 of the
CISG asserts, “Curtails the uniform availability of specific performance”53. This is an
exception of the remedial aspects under the common law. The party is authorised to gain the
performance from the other party, who bound to fulfil the contractual obligations
accordingly. The legal specification also states that the court is not responsible to make the
specified performance regarding the contract decisions54.
Due to the evolution of the CISG in the existing legal reformation, the seller can sue the
claims made by the English courts for the payable goods. In the context of the contract of sale
under CISG (in assistance with the CIF term), the respective buyer can refuse to use the
documents offered by the seller and simultaneously passage of the property of the goods can
be stopped by the buyer. Besides, Article 28 in CISG directly ascertains comprehensively
52 In Brief.co.uk, ‘What constitutes a breach?’ (Breach of Contract, 2019) <https://www.inbrief.co.uk/contract-
law/breach-of-contract/> accessed 22 January 2019
53 Wenqiong Liang, ‘Does the CISG put too much emphasis on promoting performance of the contract? a
comparison with the English law’, [2015] 1(2) IJMAS 33
54 Ibid
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about the performance of the contract. To save the contract, setting of the correct remedy is
important under the CISG. At times, with this regard, the avoidance of measures is seen
which does not influence a fundamental breach55.
In the context of the fundamental breach of contract by the seller under the CISG provisions,
diversified criteria are found. At the time of the performance, the essential part of the contract
is associated with the evidence of circumstances. It can be considered as the criteria for
fundamental breach (such as seasonable goods). The fundamental breach can also happen due
to the non-conforming goods if they cannot be utilised or resold with due efforts. It is also
found that the added substance with the non-conformity of the goods can be considered to be
illegal and can be termed as a fundamental breach of contract for both the seller and the
buyer. The fundamental breach under CISG can also be confirmed when the sold goods are
found as severely defective as well as unable to be repaired. Similarly, the non-delivery of the
ordered goods and final non-payment of the delivered goods are also the criteria of the
fundamental breach. In respect to the buyer’s insolvency and/or refusal to open the letter of
credit as per the requirement of the agreement is also considers as a breach. Besides, under
the CISG provision in the context of the instalment selling, non-delivery of the first
instalment offers a belief to the buyers that they will not receive the other instalment as well.
Therefore, this situation is considered as a fundamental breach of contract in terms of
expected aspects56.
Argument on “the CISG, unlike English law, Places too much Emphasis on Promoting
Performance of the Contract Despite a Breach by the Seller”
Specific Performance of the Contract: Significant difference between the CISG provisions
and the English law has been reflected in context of the buyer’s right as the requirement of
55 Ibid
56 Oldrich Studynka, ‘The Breach of Contract Under CISG’ (News, 7 September 2016) <http://www.cdcc.nl/the-
breach-of-contract-under-cisg/> accessed 22 January 2019
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17

the specific performance. In context of the CISG, the provision of Article 46 is equivalent
with section 52(1) but is different from the English law. Limitation of the remedy of
performance exercised for the buyer is another diversified area. In the English law, the right
to claim the damages has space for the specific performance requirements. Critical discussing
about the diversification of the CISG, it can be argued that the CISG is unable to solve the
conflict between the civil law and common law countries’ provisions. The legal documents
offered evidence that the CISG adopted the approaches that highlights the similarities with
the civil law’s applications to build the legal system and clarified the performance rights.
Similarly, with the assistance of the Article 46 of the English law, it can be affirmed that the
seller should accomplish the contractual obligations as per the buyer’s requirement.
Additionally, Article 62 confirmed that the buyer should receive the goods and pay the cost
of the goods to fulfil the performance under the contract. However, the provisions of CISG
asserted a number of exceptions. According to such exceptions, the Article 28 depicted the
inclusion of court to eliminate the conflict and decide the specific performance in the
presence of the applicable national law of the willing country57.
Seller’s Remedy of Breach in Relation with the Performance: The specific performance under
the contractual norms between the buyer and the seller is considered as the self-help remedy
as stated in CISG. The civil law countries follow these criteria than the common law
countries. However, this is the prime concern for which the diversification takes place
between the English law and the CISG. The English law’s section 52(1) stated “In any action
for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit,
on the plaintiff's application, by its judgment or decree direct that the contract shall be
performed specifically, without giving the defendant the option of retaining the goods on
57 Wenqiong Liang, ‘Does the CISG put too much emphasis on promoting performance of the contract? a
comparison with the English law’, [2015] 1(2) IJMAS 35
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18

payment of damages”58. In accordance of this statement, the description related to the
elements of the Sales of Goods Act was considered to be uncertain. While the CISG does not
offer such type of uncertainty and puts focus only on the specific performance of the buyer at
time when the seller breaches the obligations. The difference between the English law and the
CISG is also depicted from the measures of the breaches. The CISG provision advocates the
prohibition of the breaches and self-help whereas English law does not enforce the seller for
the performance as a discretionary remedy59. The similar scenario and criticalities can be
found in the case of Industries Metallurgiques SA v Bronx Engineering Co60, 61.
Critical Understanding: The termination of the contract is preferred in the English law as the
remedy of breach while CISG concentrates on the performance of the contract62,63. It can also
be argued that the CISG’s emphasises greatly on the performance in the contract rather than
the English law. Considering, the remedy of the specific performance, the English law puts
more emphasis on the theory but in relation of the practice of the specific performance, the
empirical scenarios are enforced by the English court64. The involvement of the CISG in the
specific performance is in a more detailed manner than in the English law. In context of the
seller’s provisions to cure the breach, CISG puts more distinctive approaches to advocate the
cure. On the other hand, the evidence confirmed that CISG emphasise more when the seller
breaches the contract from the duty/obligations as per the agreement. Moreover, the
58 Ibid 32
59 Peter A. Piliounis, ‘The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist)
under the CISG: Are these worthwhile changes or additions to English Sales Law?’ (Pace International Law
Review, 2000) <https://www.cisg.law.pace.edu/cisg/biblio/piliounis.html> accessed 22 January 2019
60 [1975] 1 Lloyd's Rep. 465 Court of Appeal
61 Richard Austen-Baker, ‘Difficulties with Damages as a Ground for Specific Performance’, [1999] 10(1), KLJ
1
62 Liu Chengwei, ‘Remedies for Non-performance: Perspectives from CISG, UNIDROIT Principles & PECL’
(CISG Law, September 2003) <http://www.cisg.law.pace.edu/cisg/biblio/chengwei.html> accessed 22 January
2019
63 Reza Beheshti, ‘A comparative and normative analysis of the remoteness test in the availability of significant
remedies in international sales transactions’ [2016] JBL 1
64 Theodore Eisenberg and Geoffrey P. Miller, ‘Damages versus Specific Performance: Lessons from
Commercial Contracts’ [2013] 334 JELS 2
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19

provisions of the English law are stricter than the CISG and the ambiguous aspects are only
preferred in the CISG’s provisions when compared with the English law65,66.
Conclusion
Considering the entire discussion regarding the CISG provisions of the contract law,
performance and breach along with its dissimilarities with the English law, it can be
concluded that the surface and the theoretical perspectives of CISG are more focused towards
the performance than the English law. However, in the empirical field of practice, the
differences are not particularly highlighted.
65 Kourosh Majdzadeh Khandani, ‘Does the CISG, compared to English law, put too much emphasis on
promoting performance of the contract despite a breach by the seller?’ [2012] 1(9) MSLR 99
66 Refer to 53
Page
20

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Page
24

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Appendix
Journals’ Abbreviation
MSLR = Manchester Student Law Review
JELS = Journal of Empirical Legal Studies
JBL = Journal of Business Law
KLJ = King’s Law Journal
IJMAS = International Journal of Management and Applied Science
UL = University of Leicester
LQR = Law Quarterly Review
ICLQ = International & Comparative Law Quarterly
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