Shared Responsibility under Article 80 CISG

Article 80 exempts from liability in the situation where the promisor's failure to perform has been caused by the promisee. The Article has been insufficiently dealt with in the literature and has been overlooked in case law. The paper demonstrates that article 80 has an independent scope compared to articles 77, 79 and 80. Five areas are investigated in this regard; the placement in CISG, the focus of the Articles, the cause of the detriment or loss, the affected remedies and the duty to overcome the detriment or loss. Further more, the paper outlines the issues related to the particular situation of shared responsibility in which both the promisor and the promisee seem to have caused the promisor's failure to perform.

Article 80 applies to three different case types. Firstly, cases of sole causation by the promisee. Secondly, cases of joint causation by both parties where the consequences of each contribution can be delimited. Thirdly, cases of joint causation where the consequences of each party's contribution cannot be delimited (shared responsibility). The third case type is investigated further and it is established that an apportionment based on a comparative evaluation of the parties is called for. However, problems occur in regard to the requirement to the causal link between the promisee and the promisor's failure to perform as well as in the choice between an objective or subjective approach to shared responsibility.

The findings in this paper are based on the CISG text, preparatory works, scholarly works, case law and other international instruments.