Force Majeure, Impossibility, Frustration & the Like: Excuses for Non-Performance; the Historical Origins and Development of an Autonomous Commercial Norm in the CISG
Nordic Journal of Commercial Law, No. 2, 2011
55 Pages Posted: 12 Jan 2012
Date Written: January 10, 2012
This article traces the historical development of the origins of the modern law of force majeure from the ancient doctrines of pacta sunt servanda and rebus sic stantibus. It argues that while the national (domestic) conceptions of force majeure, Impossibility, Frustration, etc., evolved out of these two competing ancient doctrines, force majeure and the like can now be considered an autonomous international commercial norm, as embodied in Article 79 of the UN Convention on Contracts for the International Sale of Goods (CISG). In this manner, under the neutral wording of “impediment beyond his control” in Article 79 — stands an autonomous international norm that is capable of relative uniformity within the context of the CISG’s goal for a sales law that is truly transnational in design.
As autonomous international sales law under the CISG, it is part of the lexicon of the new lex mercatoria. This development plays a crucial role for uniformity in international sales law. It supports the idea that in certain cases, particularly in international commercial transactions, individual domestic legal doctrines may ultimately coalesce into autonomous international principles, regardless of their distinctive development in independent legal jurisdictions. Such a development also questions the role of the state in the creation of legal orders. The emergence of an autonomous legal principle — an “impediment beyond his control” — is evidence of an international commercial lingua franca and a new lex mercatoria. As such, this private law-making supports the growth of an autonomous global legal order that is independent of the national sovereign. This development affects traditional (i.e. state-based) legal boundaries, and suggests important implications for transnational law and global governance.
Keywords: CISG, Article 79, Force Majeure, Impossibility, Frustration, international sales law, autonomous legal orders, private international law, new lex mercatoria, pacta sunt servanda, rebus sic stantibus
JEL Classification: F23, K12, K33
Suggested Citation: Suggested Citation