No. 38268-38297: 4/24/06+/-2 weeks
No. 38298-30297: 5/1/06 +/- 2 weeks
No. 38328-38353: 5/8/06+/-2 weeks
No. 38354-38379: 5/15/06 +/- 2 weeks
As such, all product was to be shipped no later than May 29, 2006. No particular supplier of the chicken products was specified in the Contracts. The Contracts are governed by the U. N. Convention on International Sale of Goods ("CISG").
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 the 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.
CISG Article 79. The term "exemption" was purposefully used in lieu of the more common term"force majeure" in an effort to avoid unintentional reference to private law. Catherine Kessedjian, Competing Approaches to Force Majeure and Hardship, in 25 International Review of Law and Economics 641, § 1.1.1. (Sept. 2005) available at http:www.cisg.law.paCe.edu/cisg/biblio/kessedjian.html. Although the Contracts contained no "force majeure" clause, the CISG helps to fill the "gap" in the Contracts in this regard; there is no legal significance here to the differing practice of Seller evident in at least one of its agreements with another entity in the evidentiary record regarding inclusion of a force majeure clause.
Even if the non-performing party can prove that he could not reasonably have been expected to take the impediment into account at the time of the conclusion of the contract, he must also prove that he could neither have avoided the impediment nor overcome it nor avoided or overcome the consequences of the impediment. This rule reflects the policy that a party who is under an obligation to act must do all in his power to carry out his obligation and may not await events, which might later justify his non-performance. This rule also indicates that a party may be required to perform by providing what is in all the circumstances of the transaction a commercially reasonable substitute for the performance, which was required under the contract.
Secretariat Commentary, Guide to CISG Article 79, § 7.
Thus, even an unforeseeable impediment exempts the non-performing party only if he can prove that he could neither avoid the impediment, nor by taking reasonable steps, overcome its consequences.... To "overcome" means to take the necessary steps to preclude the consequences of the impediment. It is closely associated with the condition of the external character of the impending event. In no event, however should the promisor be expected to risk his own existence by performing his obligations at all costs. What is required here is that a party who is under an obligation to act must do all in his power to carry out his obligation.... Again the yardstick used to measure the efforts of the party concerned is what can reasonably be expected from him. And that is what is customary, or what similar individuals would do in a similar situation. The exemption is thus granted when efforts would have been necessary that go beyond the former. Thus, the basis of reference is the same as for unforeseeability, i.e., the reasonable person. In this context, with both the foreseeability condition and the unavoidability condition read together, the concept of CISG Art. 79 may be referred to as, "exonerations for events which a reasonable person in the same situation was not bound (could not be expected) to take into account or to avoid or to overcome." This reasonable criterion regarding the unavoidability requirement is, however, to a degree uncertain, because whether an event could have been reasonably avoided or its consequences overcome depends on the facts. Here again a case-by-case analysis is required. If an object is lost at sea and can be fished out in good condition although at great cost, the final solution will not be the same if the object were a highly valuable sculpture or merely a machine tool. Thus, everything is a question of measure.
Chengwei Liu, Force Majeure § 4.5. (emphasis added)
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