VII. Claimant is under no obligation to restitute full damages under article 74 CISG on the strength of dispositive construction of this article.

1. Article 74 maintains prescriptions under authority of which Claimant is entitled to vindicate damages such as general damages, incidental and consequential losses. Despite this contain there is no riot duty of Respondent to make a full compensation of losses. [сборник ЮНСИТРАЛ по прецедентному праву комментарии к ст 74]. The party who fails to perform a contract owing to an impediment that meets all the requirements set forth in paragraph is not liable for damages.

The term «damages» must be interpreted widely. It designates all damages, regardless of their proper denomination: dommages-intérêts compensatoires (damages), dommages-intérêts moratoires (damages for over-due performance, interests on damages), direct or consequential damages, etc. The granting of damages to one party presupposes the liability of the other party. The question as to whether the failure to perform exempts the defaulting party from paying a sum stipulated in the contract (either in the form of liquidated damages or penalties) is a matter of domestic law ( Secretariat's Commentary, Official Records, I, 55).

76. Article 74 maintains prescriptions under authority of which Claimant is entitled to vindicate damages such as general damages, incidental and consequential losses. Despite this contain there is no riot duty of Respondent to make a full compensation of losses. [UNCITRAL DIGEST ON PRECEDENT LAW, Commentaries to the article 74] [сборник ЮНСИТРАЛ по прецедентному праву комментарии к ст 74]. The party who fails to perform a contract owing to an impediment that meets all the requirements set forth in paragraph is not liable for damages.

77. The term «damages» must be interpreted widely. It designates all damages, regardless of their proper denomination: dommages-intérêts compensatoires (damages), dommages-intérêts moratoires (damages for over-due performance, interests on damages), direct or consequential damages, etc. The granting of damages to one party presupposes the liability of the other party. The question as to whether the failure to perform exempts the defaulting party from paying a sum stipulated in the contract (either in the form of liquidated damages or penalties) is a matter of domestic law [( Secretariat's Commentary, Official Records, I, 55). ].

78. Furthermore, the exemption of a party does not prevent the other party from claiming remedies (including damages) as a result of the non-performance of any other obligation. This solution follows from the requirement of a cause-effect relationship described above (the non-performance must be due to the impediment). Thus, if non-conforming goods are delivered with delay on account of some impediment, the buyer will be able to claim every remedy normally available in cases of non-conformity.[Comments on Article 79 by Denis Tallon [(France] ) in 1987 Bianca-Bonell, Commentary on the International Sales Law].

79. Moreover under 74 article damages are depend on anticipation of losses’s proportion [rosentalRosental]. Additionally, Claimant only has an opportunity to get a compensation not for all damages: if general and incidental damages lend themselves to be compensated, consequential damages are not come under repayment.[Eric Goldman Notes on Contract Remedies 2003]

80. UNIDROIT Principles is inapplicabile by this relationships. According to PREAMBLE of the Principles, there are such grounds to apply UNIDROIT Principles as: the parties’ express choice, as lex mercatoria, when the parties have not chosen any law to govern their contract, as an international uniform law instruments, to interpret or supplement domestic law, as a model for national and international legislators.

81. According to the contract there is no grounds to strengthen that it is pending to apply UNIDROIT Principles in this case. Moreover, application of the Principles to international commercial contracts is possible in the cases where the parties expressly or impliedly define the law governing their contract as ‘principles of law’, ‘custom of trade’, ‘equity’ or the like which is not presented in the contract too.

82. In addition, it is necessary to emphasize that the substantial argument against the application of the UNIDROIT Principles: notwithstanding their possible significance for international commercial contracts, they are viewed as an external instrument with no relevance to the determination of the “general principles underlying the Convention” mentioned in Article 7(2) CISG.9 [UNIDROIT Principles and CISG : Change of Circumstances and Duty to Renegotiate according to the Belgian Supreme Court, Anna Veneziano]

Date: 2016-01-14; view: 519