The Application of the Hardship Theory

This paper presents an analytical view of the concept of hardship as described in Art.79 CISG, Art.8:108 PECL and Art. 7.1.7 UNIDROIT Principles, in contrast with certain legal systems. The purpose of the article is to analyze the possibility of applying the provisions on hardship from the UNIDROIT Principles in order to release a party from its contractual obligations although the CISG is the governing law of the contract. The paper begins with the demarcation of the principle of pacta sunt servanda, or sanctity of the contract, in connection with the concept of hardship, thus being avoided the burden bearing of such a change of circumstances only by the party on which it falls. The paper goes on to describe the requirements and the consequences of the application of hardship according to the above mentioned international instruments, pointing out certain differences between four important legal systems