Hardship, Cisg and the Unidroit Principles: an Important Decision of the Belgian Cour de Cassation

A recent decision of the Belgian Cour de cassation ruled that under article 79 of the Convention on the International Sale of Goods (CISG), a party could be exempted from liability on grounds not only of force majeure, but also of unforeseen circumstances that would unreasonably aggravate the burden of performing the contract. An especially interesting point is that this decision made an explicit reference to the provisions on hardship of the Unidroit Principles on International Commercial Contracts. The article analyses the decision. The Cour de cassation certainly took bold positions on the scope of article 79 of the Vienna Convention, as well in its reference to the Unidroit Principles. By recognizing the admissibility of hardship in international contracts, it may also have opened the door for an evolution of domestic Belgian law – and even of French law according to some commentators. This decision, however, was extremely succinct in its motivation, and failed to give some justifications which would have been expected. The Court’s reasoning can be criticised on several aspects. Its great merit is that it re-ignited the necessary debate of the status of hardship under the Vienna Convention, bringing additional fuel to the discussions. The solution given to the case can be approved but more solid ground could have been found by referring to article 9 of CISG and its reference to international usages, or, preferably, to the principle of good faith, which underlies the Vienna Convention as well as the Unidroit Principles.