Article by Sarah Howard Jenkins
A party to a domestic contract governed by Article 2 of the Uniform Commercial Code must answer in damages for its failure to perform in the absence of an excuse for its nonperformance under sections 2-613 or 2-615 or some doctrine or rule from the common law, such as frustration of purpose under section 1-103. Both the Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles of International Contracts, viewed by some as the Restatement of international contract law, contain provisions for exemption for nonperformance of contractual duties. Although there is similarity in language and the substantive requirements among the UCC, the Convention, and the Principles, both the scope and application of the provisions vary substantially among these significant initiatives in commercial law applicable to transactions in goods. This Article begins with a brief review of prevailing legal commentary on frustrating events and the allocation of resulting loss; it identifies the scope of relief available under each of the three bodies of rules, in light of traditional and modern theories on the treatment of frustrating events, and suggests that the provisions represent a continuum in the degree of exemption and application rather than identical relief, despite the similarity of language and substantive requirements. Additionally, this Article recommends that Article 2 be revised to provide an express exemption for buyers upon the occurrence of frustrating events to create parity between the parties, and that consideration be given to modifying section 2-615 in light of the remedial provisions of article 6.2.3 (effects of hardship) of the Principles.
About the Author
Sarah Howard Jenkins. Professor of Law, University of Arkansas at Little Rock School of Law; B.A. 1969, Hanover College; M.A. 1970, J.D. 1982, University of Kentucky; Chair of the AALS Section of Commercial and Related Consumer Law, 1997-98.
Citation
72 Tul. L. Rev. 2015 (1998)