Derogate From The Principles Applicable In The International Sale Of Goods

The United Nations Convention on Contracts for the International Sale of Goods ( 1980 ) (hereafter CISG ) entered into force on January 1 , 1986 after People's Republic of China has ratified the Convention and deposited its instruments of ratification with the United Nations . And WTO has accepted People's Republic of China as one of its members on December 11 , 2001 . As a result of these facts, an increasing number of Chinese enterprises will take part in activities of international sale of goods . Therefore , deep understanding and correct interpretation of CISG is helpful to the need to promote uniformity in its application in international trade , and may also have far-reaching effect on Chinese parties to contracts of international sale of goods .The provision of Article 77 of CISG , which stipulates the mitigation duty of the aggrieved party , is one of significant limitations on Article 74 of CISG , which establishes the principle of a general right to damages as a consequence of breach of contract. As Article 77 of CISG only addresses a general rule of duty to mitigate harm , a number of difficulties may arise when it is applied in international trade practices . For this reason , the aim of this work is to provide a clear and straightforward account of Article 77 of CISG , in the hope of being of some help to Chinese parties to contracts of international sale of goods in damages litigation to prevent some avoidable loss . This work falls into seven divisions.The first part introduces some statutory provisions and case laws concerning the doctrine of duty to mitigate harm in some countries in the world.The second part mainly discusses some of the wider controversies which surround the nature of duty to mitigate harm , in support of the conclusion that mitigation is a duty of the aggrieved party to a contract.The third part makes a brief introduction to some of theories which give different explanations of the value and present role of mitigation within the law of contract, concluding that it is probably true to say that there is no one factor, but a combination of factors , which explains this point.The fourth part analyses the application of the measures to mitigate in connection with anticipatory breach , with a conclusion that in certain cases theduty to mitigate may be applied to an anticipatory breach situation.The fifth part mainly makes some examination of such questions as : what are reasonable measures ? when and where should such measures be taken ?The sixth part makes a try at putting measures to mitigate into groups such as suspending performance , specific performance , replacement transaction , etc.The last part explains the consequence of mitigation , that is , the portion of the aggrieved parry's loss which is attributable to his failure to mitigate will be unrecoverable , the aggrieved party may recover from the party in breach of contract the reasonable expenses incurred by it in mitigating the harm , additional profits obtained by the aggrieved party will not be deducted from damages , provided they are independent of its mitigation activities .