Chapter 6. Specific performance and article 28 CISG
| Pages | 78-88 |
| Author | Bruno Zeller |
Chapter6
Specificperformanceandarticle
28CISG
A. Specific performance and the rules of the forum
Article 28 is one of the examples in the CISG that demonstrates the
compromise that was necessary to reconcile common law and civil law
traditions in the uniform international legal regime.212 It reads as follows:
If, in accordance with the provisions of this Convention, one party is
entitled to require performance of any obligations by the other party, a
court is not bound to enter a judgment for specific performance unless the
court would do so under its own law in respect of similar contracts of sale
not governed by this Convention.
A theoretical construction and logical extension of article 28 would lead
to the conclusion that this article is divisive and does not contribute towards
a uniform application of the CISG. From this point of view, it would be
correct to argue that the judicial willingness to order specific performance
‘may vary dramatically in accordance with the lex fori’.213 Such an
outcome would greatly diminish the effectiveness of the CISG, as the
remedial system plays an important role. Farnsworth noted:
No aspect of a system of contract law is more revealing of its underlying
assumption than is the law that prescribes the relief available for breach.214
However, article 28 also demonstrates that a potentially divisive rule was
in practice ignored and a uniform approach was taken. As it will be shown
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