Common use of Causation Clause in Contracts

Causation. The promisee’s act or omission must be a conditio sine qua non for the promisor’s 3 failure to perform.12 It is debated whether an exemption under Article 80 requires that the promisee’s acts or omissions alone be the cause for the non-performance or whether the provision also applies if both parties have contributed to the non-performance. Some commentators contend that Article 80 should not apply to cases of joint responsibili- ty.13 Instead, losses should be allocated among the parties under → Art. 77.14 The domi- nant counter-position refers to the Convention’s text (‘to the extent that’).15 Under this approach, the consequences of joint causation must be determined with respect to each party’s respective degree of contribution (see → para. 6 below).16 In principle, the promisor is not obliged to overcome obstacles to performance that 4 are due to the promisee’s acts or omissions.17 Yet, exceptions are acknowledged for obsta- cles that can be easily avoided or overcome by the promisor (→ Art. 7(1)). Unclear in- structions or incorrect information about a delivery address are examples of such minor failures that – depending on the circumstances – can be expected to be remedied by seeking clarification.18 A slightly different issue arises in cases where the buyer could not avoid the non-con- 5 formity of goods but could have taken steps to avoid damages. The German Federal Court of Justice rejected the application of Article 80 in a case where a seller had deliv- ered a toxic charge of clay (used for sorting potatoes). As the court explained, Article 80 was not directly applicable since the buyer had not contributed to the delivery as such. (3rd xxx, X.X.Xxxx 2013); Xxxxxxxx Xxxxxxxxx, ‘Article 80’ para. 3, in Xxxxxxxx Xxxxxxxxx (ed), Commen- tary on the UN Convention on the International Sale of Goods (CISG) (4th edn, OUP 2016).