oa Fundamina : A Journal of Legal History - The evolving function of in case of default

Volume 16, Issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



With his very acute view on the evolution of legal concepts, Philip Thomas always manages to help us to understand more truly the function or rationale behind modern concepts. I hope therefore that this very short journey through the history of the evolving function of may trigger his interest and please him as a gift for this special occasion.

Under the influence of the UN [Vienna] Convention on the International Sale of Goods (CISG) of 11 April 1980, the (traditional) division between default (), impossibility and bad or non-performance (which could be called "breach of an obligation") that one would find in the former German BGB (and all systems influenced by it) or in the French Code Civil (and all systems influenced by it), has been replaced by a unitary notion of "non-performance" or "breach of contract" (art. 25 CISG). Absence of performance, delay and bad performance - such as defective delivery - all qualify as (art. 25 CISG), which immediately as such triggers the right to damages (art. 45 I b, 64 I b CISG), unless there is an excused non-performance (art. 79 CISG).

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