I will not re-debate that, but will instead, in the present impracticability context, focus on the sub-issue of ‘economic force majeure’ as a liability ‘exemption’ under CISG Article 79(1). ⁹⁷³973. Article 79(1) provides: ‘A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.’ The controversial question is not whether sharply increased cost can qualify as an ‘impediment’ (these days, almost everyone agrees it can), ⁹⁷⁴974. See Harry Flechtner, ‘CISG Article 79: Getting Scafomed,’ in The CISG Convention and Domestic Contract Law – Harmony Cross-Inspiration or Discord? (2014) at 193 (prevailing view). Accord John Honnold, Uniform Law for International Sales (4^th ed., edited and updated by Harry Flechtner, 2009) at 627 (language of Article 79(1) seems to leave room for exemptions based on economic dislocations). See also Lookofsky, supra n. 16, §6.19. but whether hardship ⁹⁷⁵975. As defined in the UNIDROIT Principles of International Commercial Contracts (2004), Art. 6.2.2: ‘There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party's performance has increased or because the value of the performance a party receives has diminished, and (a) the events occur or become known to the disadvantaged party after the conclusion of the contract; (b) the events could not reasonably have been taken into account by the disadvantaged party at the time of the conclusion of the contract; (c) the events are beyond the control of the disadvantaged party; and (d) the risk of the events was not assumed by the disadvantaged party.’ In case of hardship the disadvantaged party is, according to Art. 6.2.3 of the Principles, entitled to request renegotiations. Upon failure to reach agreement, either party may resort to the court. If the court finds hardship it may, if reasonable, terminate the contract [or] adapt the contract with a view to restoring its equilibrium. – and/or domestic rules which permit contract adjustment by reason of supervening unreasonableness – can affect the CISG equation, either by expansive application of Article 79 (to include international soft law on hardship) or by allowing domestic rules of hardship (or unreasonableness) to ‘compete’ with (supplement) that CISG rule.

In my student thesis, I did not address the hardship conundrum. In a subsequent (1983) version, however, I noted the possibility of an ‘equitable adjustment’ of the price pursuant to § 36 (Denmark’s General Clause) – a possibility which I described as one of the Convention’s ‘loose ends.’ ⁹⁷⁶976. See 27 Scandinavian Studies in Law (1983) 109-138, at 123 with n. 125, also available at https://www.cisg.law.pace.edu/cisg/biblio/lookofsky4.html.