The CISG's Doctrine of Fundamental Breach

Should We Part Ways with the UCC's Perfect Tender Rule for Domestic Sales

By Christopher J. Konieczny

Chris Konieczny is a 2012 graduate of Albany Law School. He did his undergraduate work at RPI. In law school, he was a senior editor of the Albany Law Review, and he prepared this paper for Professor James Gathii's International Business Transactions class in the fall of 2011.  

The United Nations Convention on Contracts for the International Sale of Goods (CISG) incorporates a doctrine of fundamental breach. That doctrine does not provide sufficient certainty or predictability for application to U.S. domestic sales of goods. It should, therefore, not be applied to contracts arising under Article 2 of the Uniform Commercial Code (UCC). 

Moreover, the purpose and main goal of Article 25 of the CISG—avoidance of excessive economic waste in the international community—is largely inapplicable in a domestic setting. The bright line provided by the UCC's perfect tender rule offers both legal certainty and predictability in a field of law which thrives on such concepts.

Part I of this paper will introduce and give a brief overview of the CISG; Part II will briefly outline the similarities and differences between the CISG’s fundamental breach doctrine and the UCC’s perfect tender rule; Part III will outline the CISG approach in detail; Part IV will outline the UCC approach in detail; Part V will discuss the disadvantages of the CISG’s fundamental breach doctrine; Part VI will discuss the advantages of the CISG’s fundamental breach doctrine; Part VII will briefly discuss the disadvantages of the UCC’s perfect tender rule; Part VIII will briefly discuss the advantages of the UCC’s perfect tender rule; finally, Part IX will conclude and briefly outline why the perfect tender rule is more advantageous in the context of a domestic contract for the sale of goods.*
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* Citations to references in this introduction are available in the paper.
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