CISG第25条结构、历史和案例.doc

IV.? THE MEANING OF ARTICLE 25 IN LIGHT OF ITS STRUCTURE, LEGISLATIVE HISTORY, AND CASE LAW A. Structure and Legislative History of Article 25 Legislative history and literary structure lay the groundwork for gaining an understanding of the meaning of Article 25.[40] The definition of a fundamental breach under Article 25 has two main components. The first is the detriment/expectation component and the second is the foreseeability component. Although the detriment/expectation component is what makes a breach fundamental, liability for such a breach is limited by the affirmative defense of foreseeability.[41] For a breach to be fundamental, the breach must cause a [page 118] detriment that substantially deprives the non-breaching party of its reasonable expectations.[42] This detriment concept developed out of what were perceived weaknesses of the revised text of the ULIS.[43] Those weaknesses were replaced by a substantial detriment test for fundamental breach.[44] The CISG does not contain any definitions for the term detriment. It also does not give any examples of a detriment that rises to the level of a fundamental breach. However, the unofficial commentary to the early drafts created after the development of the substantial detriment test does provide significant guidance as to its meaning and application. The drafters commentary stated that [t]he determination whether the injury is substantial must be made in the light of the circumstances of each case, e.g., the monetary value of the contract, the monetary harm caused by the breach, or the extent to which the breach interferes with other activities of the [page 119] injured party.[45] From this comment, it is possible to conclude that the drafters simply and naturally intended the word detriment to be synonymous with monetary injury or harm, or of a consequential harm, and that the determination of a fundamental breach was to be made on a case-by-case basis.[46] This commentary also provides factors to l