The Treatment of CISG Article 79 in German Courts: Halting the Homeward Trend

The UN Convention on Contracts for the International Sale of Goods (“CISG”)1 has played a preeminent role in German jurisprudence. This is a fortunate development towards the harmonization of international sales law. This development bucks the “homeward trend” which has plagued a number of signatory states.2 This is a small, but important, step towards a conceptual goal of functional uniformity in a body of international commercial law. As a review of German case law demonstrates, while excuses for non-performance in Article 79 may have developed out of variants of similar domestic legal principles, it ultimately stands alone as an autonomous international doctrine under the CISG. This suggests that the unique development of Article 79 in separate and distinct legal jurisdictions, such as Germany, may ultimately evolve into an autonomous international norm. It further supports the notion that Article 79 is capable of creating relative uniformity within the context of the CISG’s goal for a sales law that is transnational in design.