ABSTRACT
At the outset, it should be noted that the concept of fundamental breach under the CISG is in no way related to the defunct English concept of the same name.85 The English doctrine of fundamental breach was developed gradually during the 30 years from around 1950, primarily to deal with unreasonably extensive exemption clauses.86 The courts began to recognise that a contractual term was even more important than a condition-the so-called ‘fundamental term’ which went to the core or root of the contract, breach of which amounted to nothing less than a complete non-performance of the contract.87 A rule88 emerged which held that a fundamental breach could not be excluded by any exemption clause, no matter how widely drafted.89 After a chequered career,90 the doctrine of fundamental breach was finally ‘forcibly evicted by the front [door]’91 by the House of Lords in Photo Production Ltd v Securicor Transport Ltd.92
