ABSTRACT
PECL Art. 9:504. The non-performing party is not liable for loss suffered by the aggrieved party to the extent that the aggrieved party contributed to the nonperformance or its effects.
BGB (Germany) § 254. 275 (1) If fault on the aggrieved party’s behalf has contributed to the occurrence of the loss, the duty to pay damages and the amount of damages depends on the circumstances, in particular on the extent to which the loss has been caused by one party or the other. (2) [. . .]
§ 326. 276 (1) [. . .] (2) If the obligee is solely or overwhelmingly responsible for the circumstance releasing the obligor from the need to perform pursuant to § 275 (1) to (3), or if the obligor is not responsible for that circumstance and this occurs at a time when the obligee is in default through non-acceptance, the obligor retains his claim for counter-performance. He must, however, allow a deduction for whatever he saves as a result of release from performance, he acquires through the utilisation of his labour elsewhere, or he maliciously fails to acquire. (3)–(5) [. . .]
Art. 44. (1) If the aggrieved party acceded to the act causing the loss, or if circumstances for which he is accountable have contributed to the occurrence or aggravation of the loss or have otherwise aggravated his position, the court may reduce the obligor’s duty to pay damages or entirely release him from it. (2) [. . .]
Questions
Q 80-1 a) Which rule does Art. 80 CISG establish? b) Compare with Art. 7.4.7 UP 2004, Art. 9:504 PECL, § 254(1), § 326(2)
BGB, Art. 44(1) OR. In what way do they differ from Art. 80 CISG with regard to the legal consequences, where the creditor causes the debtor’s failure to perform?
