• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.31
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• pp.3-25
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• 2006

This study focus on interest for arrears and filling of the gaps left in Article 78 of CISG. In the case of CISG, Article 78 provides for interest any time a payment under a contract is untimely, but does not specify a particular rate of interest or a method to determine such a rate. This issue did not cause any uncertainty under ULIS, the CISG's antecedent, since Article 83 of ULIS provided for 1%p above the official discount rate in the creditor's country. Lacking any CISG general principle as well as any indication by the very same CISG, one can only conclude that the matter must be deferred to the domestic rule of private international law. Actually, resorting to private international law is not only admissible, but expressly required by Article 7(2). In the interpretation and filling of the gaps left in Article 78, there is a considerable difference of opinion especially amongst commentators on whether the gap is a lacuna praeter legem, i.e., one being governed by, but not expressly settled in the CISG, or whether it is an issue falling outside the scope of application of the CISG, i.e. a lacuna intra legem. The protagonists of the former view lay emphasis on the overall objective of the CISG, namely to create a uniform law, whereas the supporters of the latter view refer to the legislative history of Article 78 as the dominant principle in interpreting Article 78. Some authors believe that the issue of determining the rate of interest is not dealt with by CISG and it is, therefore, governed by the applicable domestic law, which is the subsidiary law applicable to the sales contract, since "no special connecting points seem to have developed for the entitlement to interest." In the light of the relevant case law, it seems correct to conclude that the interest rate is not determined by CISG and that courts normally determine it according to their own rules of private international law. While CISG Article 78 expressly does not deal with this issue, PICC Article 7.4.9 and PECL Article 9.508, on the other hand, set forth a precise method for computing interest. Although a method like the one set by PICC may be useful and may encourage uniformity, it still cannot be used under the CISG. The PICC or PECL formula may, however, be a very good starting point in a de jure condendum analysis when a new Article 78 will be drafted, if an interest rate method will ever be embodied in the text of an international convention.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.235-253
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• 2000

As to the sphere of application, Article 78 CISG undoubtedly applies to interest on the purchase price. Furthermore, the provision also applies to "any other sum that is in arrears". This language has been interpreted to encompass expenses that one party had on behalf of the other as well as reimbursements when the purchase price is reduced according to Article 50 CISG. However, it is questionable whether this language also extends to claims for damages. Legal scholars seem to agree that one has a right to interest on damage claims under Article 78 if the amount in question has been liquidated vis-a-vis the other party. Whether this right to interest also applies to unliquidated sums, is controversial, however. In this study, as a result of taking into account the puspose of Article 78, we could find the fact that regardless of whether the exact amount of damages has been specified yet, the breaching party still owes compensation to the other party from the time of the breach and, accordingly, the non-breaching party should be entitled to interest payments on the loss from that time. Consequently, Article 78 applies not only to liquidated but also to unliquidated damages.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.3-32
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• 2012

CISG article 74 establishes the general formula applicable in all cases where an aggrieved party is entitled to recover damages. It provides that damages for breach of contract comprise all losses, including loss of profits, caused by the breach, to the extent that these losses were foreseeable by the breaching party at the time the contract was concluded. An aggrieved party may claim under article 74 even if entitled to claim under article 75 or 76. The latter articles explicitly provide that an aggrieved party may recover additional damages under article 74. Articles 75 and 76 apply only in cases where the contract has been avoided. Article 75 measures damages concretely by reference to the price in a substitute transactions, while article 76 measures damages abstractly by reference to the current market price. Article 76 (1) provides that an aggrieved party may not calculate damages under article 76 if it has concluded a substitute transaction under article 75. If however, an aggrieved party concludes a substitute transaction for less than the contract quantity, both articles 75 and 76 may apply. Pursuant to article 77, damages recoverable under articles 74, 75 or 76 are reduced if it is established that the aggrieved party failed to mitigate losses. The reduction is the amount by which the loss should have been mitigated. Article 78 entitles a party to interest on the price and any other sum that is in arrears.

• International Commerce and Information Review
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• v.15 no.3
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• pp.199-224
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• 2013

Section I of Chapter III ('Obligations of the Buyer') in Part III ('Sale of Goods') of the CISG consists of six articles addressing one of the fundamental buyer obligations described in article 53 of the CISG: the obligation to pay the price. Although the amount of the price that the buyer must pay is usually specified in the contract, two articles in Section I contain rules governing the amount of the price in particular special circumstances: article 55 specifies a price when one is not fixed or provided for in the contract, and article 56 specifies the way to determine the price when it is 'fixed according to the weight of the goods'. The remaining four provisions in Section I relate to the manner of paying the price: they include rules on the buyer's obligation to take steps preparatory to and to comply with formalities required for paying the price (article 54); provisions on the place of payment (article 57) and the time for payment (article 58); and an article dispensing with the need for a formal demand for payment by the seller (article 59). Especially article 53 states the principal obligations of the buyer, and serves as an introduction to the provisions of Chapter III. As the CISG does not define what constitutes a 'sale of goods', article 53, in combination with article 30, also sheds light on this matter. The principal obligations of the buyer are to pay the price for and take delivery of the goods 'as required by the contract and this CISG'. From this phrase, as well as from article six of the CISG, it follows that, where the contract provides for the performance to take place in a manner that differs from that set forth in the CISG, the parties' agreement prevails.