Divergent Views Recognized within the CISG Itself Sample Clauses

Divergent Views Recognized within the CISG Itself. The treatment of specific performance within the CISG demonstrates a clear recognition of the fundamental differences between the two legal systems with respect to a basic principle underlying contract remedies—the civil law favors performance, while the common law is neutral as between performance and compensation for non-performance. To the extent there is any question as to the application and effect of Article 4 as excluding from the CISG any question as to the validity of a penalty clause, Article 7(2) directs us to the general principles underlying the CISG. We find such a principle recognizing this fundamental difference between the civil and common law in the interplay between Articles 46, 62, and 28.89 Articles 46 and 62, essentially, adopt the civil law approach to specific performance. However, Article 28 limits the application of either in instances in which a common law enforcing court would not order specific performance under its own law.90 The Secretariat Commentary to what would become Article 4691 not only notes the limit provided through Article 28, but also specifically notes the similarities between the legal remedy of specific performance and a contractual penalty clause used as a deterrent to breach.92 The Commentary goes on to note that such a “penalty clause” is “invalid” in many legal systems, and that nothing in CISG Article 46 has “the effect of making such clauses valid in those legal systems which do not otherwise