onforming goods.2 The potential for creating these kinds of interpretive difficulties raises the question of whether or not Article 79(1) sufficiently solves cases of commercial impracticability.
The main problem with Article 79(1) is related to the problem of interpretation and application of the CISG in general. The CISG attempts to set out basic remedies and as results lacks specificity. As a result adjudicators have at their disposal broad discretionary powers of interpretation and application. The result is a body of inconsistent findings and uncertainty of law, ultimately compromising the CISG’s goal of harmonization of the law of compensatory damages.3 It is within this legal framework that Article 79(1) functions.
Article 79(1) requires that the party seeking exemption from liability take all reasonable steps to “avoid or overcome” the relevant impediment or any consequences flowing from it.4 Article 79(1) of CISG reads as follows:
A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.5
Essentially what this means is that at the time of contracting the vendor intends to use a specific supplier and if that supplier does not have the goods at the time the Vendor is required to obtain them, he will not be exempt from liability under Article 79(1). This is because Article 79(1) requires that the vendor is reasonably expected to foresee this possibility and should take practical steps to overcome such a scenario. In other words, the vendor ought to have been in a position to seek out an alternative supplier. Failure to take these kinds of practical steps will not permit the vendor to escape liability under Article 79(1). Quite simply, once performance remains a practical