Distinguishing Hardship From Force Majeure Under Article 79 CISG

Abstract

This thesis investigates the relationship between hardship and force majeure within the framework of Article 79 of the United Nations Convention on Contracts for the International Sale of Goods (CISG), with particular emphasis on whether the provision is structurally capable of accommodating hardship situations. The central argument is that Article 79, when analyzed in light of its text, drafting history, and the cumulative effect of its requirements, is best understood as a framework oriented toward the logic of force majeure, namely objective impossibility, rather than the logic of hardship, defined as excessive onerousness. Through conceptual, functional, and structural analysis, this thesis demonstrates that each operative element of Article 79—the impediment requirement, the unavoidability threshold, and the exclusively damages-based consequence—aligns with the force majeure tradition and is structurally incompatible with hardship. The competing arguments presented by the CISG Advisory Council in Opinion No 7 and endorsed by the Belgian Supreme Court in Scafom International v Lorraine Tubes are critically examined and addressed. The thesis concludes that Article 79 cannot adequately address hardship situations, and that the appropriate response lies in contractual hardship clauses and the gap-filling mechanism of Article 7(2) CISG, rather than in a structural expansion of Article 79.