Impact of Art. 49 on the interpretation of non-CISG provisions

Beyond its actual sphere of application, Art. 49 CISG has occasionally been used as guidance by courts when interpreting provisions of domestic or international law. Some examples are listed below.

Dutch law:

Termination of social rental agreements case
Parket bij de Hoge Raad (Advocate General at the Dutch Supreme Court)
Netherlands, 06 July 2018 – 18/00855, CISG-online 3131

Reference made to Art. 49(1)(a) and Art. 49(1)(b) CISG in interpreting Art. 6:265 of the Dutch Civil Code (Burgerlijk Wetboek), a provision governing the termination of mutual (reciprocal) agreements for breach of contract under Dutch domestic law, and its application to the termination of so-called "social" rental agreements

Motorcycle racer case
Parket bij de Hoge Raad (Advocate General at the Dutch Supreme Court)
Netherlands, 20 January 2006 – C04/313HR, CISG-online 4667

Reference made to Art. 49(2) as an example for international sales law (comparable to Art. 6:89 Dutch Civil Code). A more pertinent example might have instead been Art. 39(1)

Spanish law:

Don Tomás & Doña Almudena v. Don Casimiro & Doña María Milagros
Tribunal Supremo (Spanish Supreme Court)
Spain, 31 October 2006 – 1062/2006, CISG-online 1676

Reference made to Art. 49(1)(a) CISG in interpreting Art. 1124 of the Spanish Civil Code (Código civil), a provision governing the termination of reciprocal obligations in cases of non-performance

Europlassa Salamanca S.L. v. Royeme Spanish Deli S.L.
Audiencia Provincial de Salamanca (Court of Appeal Salamanca)
Spain, 04 May 2018, CISG-online 3855

Reference made to Art. 49(1)(a) CISG in interpreting Art. 1124 of the Spanish Civil Code (Código civil), a provision governing the termination of reciprocal obligations in cases of non-performance

New Zealand law:

Tri-Star Customs and Forwarding v. Denning
Court of Appeal of New Zealand
New Zealand, 02 July 1998 – 1 NZLR 33, CISG-online 2453

Reference made to the wording of Art. 49(2)(b)(i) CISG ("knew or ought to have known") in interpreting the (narrower) term “known” in section 6 of New Zealand´s Contractual Mistakes Act 1977

G4 Management B.V. v. Hanzevast Beleggingen B.V.
Parket bij de Hoge Raad (Advocate General at the Dutch Supreme Court)
Netherlands, 08 July 2011 – 10/00006, CISG-online 2379

Reference inter alia made to Arts. 45, 49, 61 and 64 CISG (in particular the right of a party that has suffered a breach of contract to terminate the contract and in addition claim payment of damages under these CISG provisions) in discussing matters of damages calculation under Art. 6:87 of the Dutch Civil Code