The United Nations Convention on Contracts for the International Sale of Goods (CISG) aims to gather the rules applicable to international sales of goods in a single source. CISG contains rules and regulations regarding the international sale of goods. The practical name of the United Nations Convention on Contracts for the International Sale of Goods is the Vienna Convention.
The CISG system is based on flawless responsibility. However, it has regulated that the parties can get rid of responsibility with some regulations. CISG articles 79-80 have the title “Exemptions”.
According to article 79/1 of the CISG, it is regulated that one of the parties will not be held 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. With this regulation in the CISG, it is mentioned that there is a performance obstacle.
Performance obstacles are not regulated in the CISG. Accordingly, force majeure situations such as fire, flood, war and situations that occur outside the responsibilities of the parties can be included in this scope. The important thing is that the obstacle has occurred outside the control of the parties. Since the obstacles arising from the behavior of the parties, the people they employ or their assistants cannot be considered out of their control, the parties' responsibility continues. In addition, since the CISG is applied to commercial sales contracts, the parties to these contracts are merchants. According to the Turkish Commercial Code, merchants will behave like a prudent businessman. Therefore, they have a duty of care.
In order for the parties to escape responsibility; the performance obstacles must not only be out of control but also unpredictable. The unpredictability must exist at the conclusion of the contract. In the event that there is an obstacle that can be foreseen during the establishment of the contract, it is accepted that the parties take the risks arising from the contract. Parties cannot put forward the economic or legal regulation changes that normally occur in their own countries with the claim of unpredictability. However, obstacles related to the counterparty's country legislation and not specified during the conclusion of the contract are considered within the scope of unpredictability.
Another condition for the parties to be relieved of liability is that it is not possible to avoid the obstacle itself or its consequences during the establishment of the contract. One of the parties has to take measures due to these obstacles that will arise.
In accordance with article 112 of the Turkish Code of Obligations, if the debtor proves that no fault can be imposed on him, he will be relieved of the debt. Turkish law is based on fault liability.
According to CISG article 79/2, parties are regulated to be relieved of liability if they use third parties to fulfill their contractual debts. However, if it is proven that he and the third person he appointed can escape from responsibility according to Article 79/1, the person is relieved of responsibility.
Third parties within the scope of CISG article 79/2 cannot be manufacturers or raw material suppliers who provide the preconditions for the seller to fulfill its contractual obligations, participate in the production phase of the goods. Since the acts of these persons fall under the responsibility of the parties, they are considered within the scope of CISG article 79/1.
Unlike the suppliers, third parties are persons who are outside the seller's management organization and control, who are economically and functionally independent from the seller and are accepted as an organic bond with the original contract, they are considered within the scope of CISG article 79/2. As an example to these people; subcontractors, carriers or banks that fulfill part or all of the contract.
The fault liability of the auxiliary persons regulated in article 116 of the Turkish Code of Obligations and the responsibility of the employer regulated in article 66 of the TCO is a lighter responsibility compared to the CISG. CISG did not include any fault in the regulations regarding the responsibilities of the parties and made the responsibilities heavier.
Temporary performance obstacle are regulated in article 79/3 of CISG. According to the article, relief from liability is valid for the period in which the impediment exists. The date when the obstacle that allows for the discharge of responsibility is removed is considered as the date of execution. It is accepted that the responsibilities of the parties that have not been reversed from the contract continue as of this date.
In accordance with article 79/4 of the CISG, the party faced with the obstacle of performance must inform the other party about the obstacle and its consequences within a reasonable time from the date on which it learned or should have learned the disability. The reasonable time definition is not made in the Convention. Accordingly, the reasonable time is determined according to the conditions of the situation. If the notification is not received within a reasonable time, the party encountering the obstacle of performance is obliged to compensate the other party's damages. The damages that the party who does not notify is obliged to compensate is limited to the damages caused by the failure to notify. If the notification has been made by the party exposed to the impediment to execution, but has not reached the other party, liability for damages continues. If this obstacle affects the notification conditions as well as the performance, the party that does not notify will not be responsible for the damages.
With the article 79/5 of the CISG, it has been stipulated that the parties will not be prevented from claiming other rights other than the right to demand compensation in the event of escaping from liability. Accordingly, the party that escapes liability pursuant to article 79 of the CISG will only be relieved of the obligation to pay compensation. Other rights can be counted as returning from the contract, repair, delivery of substitute goods, deduction of the price, and demand for performance. This provision will be applied equally for both the seller and the buyer.
CISG article 80 regulates that the parties cannot rely on the failure of the other party to fulfill their contractual debts in the face of situations arising from their negligence or action. If the failure of one of the parties to fulfill its performance is due to the action or inaction of the other party, the person will not be able to claim the rights he has under the CISG.