Comment by John M. Catalano
The United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention) is intended to establish uniformity and certainty in the law governing international sales. An extremely important goal of the CISG is to achieve such uniformity and certainty with regard to remedies available to the parties to a contract. The rules of the Convention grant reciprocal remedies to the buyer and seller and clearly establish that specific performance is the right of an innocent party if he so chooses. The doctrine of specific performance “reflect[s] the principle . . . that the law should compel parties specifically to perform their contractual obligations.” These provisions reflect the strong bias of civil-law systems for specific rather than substitutional relief. However, due to the divergent common-law and civil-law perceptions as to the role of specific performance in contracts for the sale of goods, the drafters of the 1980 CISG included article 28 as a compromise acceptance of specific performance as a general remedy. As a general exception to the rules contemplating specific performance of contract obligations, article 28 states that a court is not required to order specific performance unless that court would do so under domestic law. Many commentators have charged that this limitation on mandatory specific performance is “disruptive [of] the Convention's underlying goal of uniformity.” Nevertheless, a proper examination of the scope and effect of specific performance under the CISG necessarily requires an investigation as to the application of comparable remedial provisions in the nation where enforced performance is requested.
This Comment closely examines the CISG and pertinent U.S. and civil-law treatment of the remedy of specific performance in an attempt to formulate a practicable understanding of this doctrine and how it applies to a typical sales contract dispute governed by the Convention. Part II of the Comment examines the right to specific performance under the CISG. Part III explores the scope and application of article 28 under both civil- and common-law legal systems and attempts to clarify some of the article's ambiguities with respect to its application under these systems. Part IV of this Comment details the practical effects of specific performance under the various common-law and civil legal systems. Finally, Part V concludes with the proposition that the concerns of the drafters and many commentators criticizing article 28 of the CISG are unfounded because application of that article in all legal systems examined will not lead to a significant disparity of result amongst those systems.
About the Author
John M. Catalano.
Citation
71 Tul. L. Rev. 1807 (1997)