Exemption from liability due to third-party impediments under the United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980 and Vietnamese law

Abstract:

This article examines exemption from liability due to third-party impediments under Article 79(2) of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in comparison with Vietnamese law. In particular, it analyzes the conditions for exemption from liability and relevant CISG case law in order to clarify the legal position of third parties in international sales contracts. Although the CISG establishes a relatively specific mechanism governing this issue, Vietnamese law still lacks explicit provisions on exemption from liability in cases involving third-party impediments, thereby creating difficulties in both legal interpretation and practical application. Through a comparative legal approach, the article identifies several shortcomings in the current Vietnamese legal framework under this issue and proposes recommendations aimed at improving legal certainty in international commercial transactions.

Keywords: Exemption from liability, third party, impediment, force majeure, international sales contracts, Vietnamese law, CISG 1980.

1. Introduction

In the context of economic globalization, contracts for the international sale of goods increasingly involve complex performance processes and the participation of various third parties such as suppliers, carriers, and subcontractors. As a result, the risk of non-performance caused by impediments encountered by these third parties has become a significant legal issue in international commercial practice.

Article 79(2) of the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) provides a specific mechanism for exemption from liability in such circumstances. However, the interpretation and application of this provision remain controversial, particularly in determining the concept of “a third party” and the conditions for exemption from liability. Meanwhile, Vietnamese law has not yet established explicit regulations governing exemption from liability due to third-party impediments in international sales contracts, leading to difficulties in legal interpretation and practical application.

Based on an analysis of Article 79(2) CISG, relevant case law, and Vietnamese legal provisions, this article identifies several shortcomings in the Vietnamese legal framework and proposes recommendations for improving the regulation of exemption from liability in cases involving third-party impediments in international sales contracts..

2. CISG provisions on exemption from liability due to third-party impediments in contracts for the international sale of goods

2.1. The concept of “a third party” under Article 79(2)

The concept of “third party” under Article 79 CISG has been widely discussed in legal scholarship. Many scholars classify third parties into three groups: (1) personnel of the non-performing party; (2) sub-contractors; and (3) suppliers. However, the term “third party” is not expressly defined in any legal instrument. According to the CISG Advisory Council, at least two different categories of “third persons” can be identified, although only one of them falls within the scope of Article 79(2) CISG. [1] This distinction is important in determining whether a contracting party may rely on the failure of a third party as a ground for exemption from liability.

The first identifiable group includes “third persons” who are not entrusted by the seller to perform the contract but who help or facilitate the seller’s performance. These persons may be separate from the seller, such as suppliers of raw materials or subcontractors producing semi-finished components. Their activities are often necessary for the seller to deliver conforming goods. For example, a supplier may provide electronic components to a company manufacturing computers for export.[2]

However, there has been considerable debate about whether a seller’s supplier should be considered a “third person” under Article 79(2). Most scholars reject this view, arguing that suppliers merely support the seller’s performance rather than perform all or part of the contract itself. This approach has also been supported in many judicial decisions. In the Chinese Goods Case, the arbitral tribunal held that Article 79(2) applies when the seller seeks exemption from liability due to the fault of a “subcontractor” and the seller cannot claim exemption from liability when the third party is a manufacturer or a sub-supplier.[3] In addition, in the Vine Wax Case, the Court of Appeal also held that if the seller acts merely as an intermediary for a supplier, the supplier in that case cannot be regarded as a third party within the meaning of Article 79(2) CISG.[4] Moreover, the CISG Secretariat has likewise rejected the view that suppliers should be considered third parties under Article 79(2), stating that: “A third party must be a person engaged to perform all or part of the contract. Third parties do not include suppliers of goods or raw materials to the seller”.[5] This interpretation is also reflected in the view of the CISG Advisory Council. If the seller fails to deliver conforming goods because a supplier fails to provide the necessary materials, the seller normally remains liable for the breach. In such cases, Article 79(1) remains the main provision for determining whether the seller may be exempted from liability.

Nevertheless, some exceptions may exist, particularly where the seller cannot control the choice of supplier. For example, this may occur when the supplier is the only available source of raw materials, when alternative suppliers are unavailable due to unusual and unforeseeable events, or when defects in the goods arise from circumstances unrelated to the typical procurement risks assumed by the seller. In these cases, even though the supplier is not considered a “third person” under Article 79(2), the situation may still qualify as an impediment beyond the seller’s control under Article 79(1). In such circumstances, the seller may claim exemption from liability.[6]

The second group includes independent “third persons” engaged by the seller to perform all or part of the contract directly for the buyer. These persons may be individuals or legal entities that are economically and functionally independent from the seller. They are also outside the seller’s organizational structure and not subject to the seller’s control or responsibility. In such situations, the seller entrusts the third person with certain contractual tasks, such as manufacturing the goods according to the buyer’s specifications or delivering the goods to the buyer. These persons fall within the scope of Article 79 when they are engaged by the breaching party to perform contractual obligations.[7]

In practice, it is not always easy to determine when “a third person has been engaged to perform all or part of the contract.” The provision nevertheless indicates that these third persons are different from ordinary suppliers or persons dependent on the seller. In other words, the third person does not directly participate in the international sales contract between the seller and the buyer. Instead, the seller hires or engages the third person to perform contractual obligations toward the buyer. In this situation, there is a separate contract between the seller and the third person.[8] Under that contract, the third person performs all or part of another contract, namely the contract between the seller and the buyer (the main contract). Therefore, the obligations of the third person are closely connected with the performance of the main contract. Their conduct may directly affect the performance of that contract. Moreover, the understanding that a third party refers to a subcontractor has gained widespread acceptance worldwide.[9] However, this does not mean that the third person is liable to the buyer if it fails to perform. The third person does not take part in disputes concerning the main contract. Instead, the third person is legally responsible only to the party with whom it concluded the contract, namely the seller. As a result, the seller remains the party responsible toward the buyer.

Thus, a “third person” under Article 79(2) CISG must be independent from the breaching party and must not be subject to its control or direction. In addition, the third person must be engaged directly to perform the main contract between the seller and the buyer. Article 79(2) does not apply to persons who merely assist or create the conditions for the performance of the contract.

2.2. Conditions for exemption from liability due to third-party impediments in contracts for the international sale of goods under Article 79(2)

Article 79(2) of the CISG provides that: " If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if: (a) he is exempt under the preceding paragraph; and (b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him.”

To apply this provision, both the breaching party and the third party must satisfy the exemption conditions stipulated in Article 79(1) of the CISG: (i) the failure to perform must be caused by an impediment beyond the party’s reasonable control and independent of its will; (ii) the impediment must not have been known or reasonably foreseeable to the breaching party at the time the contract was concluded and during its performance; (iii) the impediment and its consequences must be unavoidable and impossible to overcome; (iv) the breaching party must comply with the obligation to give notice of the impediment and bear the burden of proving the existence of such impediment.[10]This means that the breaching party and the third party must simultaneously satisfy these conditions for the “double condition” of exemption under Article 79(2) CISG to apply. Specifically, the conditions are as follows:

First, the failure to perform must be caused by an impediment beyond the party’s reasonable control and independent of its will.

The term “impediment” appears in Article 79(1) CISG to describe situations in which the breaching party encounters obstacles, more specifically “impediments beyond his control.” In this context, an impediment can be understood as events that occur objectively, entirely resulting from external factors that act independently of human will and that the parties to the contract cannot control or influence.

The CISG does not use terms such as “force majeure,” “hardship,” or “impossibility,” but instead adopts the broader concept of “impediment,” which more accurately reflects the objective nature of the events concerned. However, this terminology may create uncertainty because not every force majeure event necessarily qualifies as an “impediment” under Article 79(1) CISG.[11] Generally, only impediments that make performance impossible, rather than merely difficult or impracticable, may justify exemption. Since Article 79(1) CISG does not clearly define the concept of “impediment,” its interpretation largely depends on international trade practice and the assessment of dispute resolution bodies.

The scope of an “impediment” is not limited merely to situations of commercial or economic hardship, unforeseeable events, or fundamental changes of circumstances. An impediment may arise from natural factors or from human actions. Natural phenomena such as earthquakes, floods, or tsunamis may constitute impediments unless they were reasonably foreseeable by the parties. Likewise, human-related events, including wars, export restrictions, theft during transportation, or acts of sabotage, may also qualify as impediments beyond a party’s control. In certain circumstances, defects in goods or sudden production suspensions caused by the seller’s supplier may also be regarded as impediments under Article 79 CISG, provided that the seller did not act in bad faith..[12]

Thus, for an event to be considered an “impediment” that allows the breaching party to be exempt from liability, it must satisfy three conditions: (i) the event must occur objectively and not depend on the will of the breaching party; (ii) the breaching party must not be at fault for causing that impediment; and (iii) the impediment must be entirely beyond the scope of the breaching party’s control or responsibility.[13]

The case Dry Top N.V. v. Sociedad Cooperativa Piñón-Sol CYL[14] illustrates the requirement that the impediment must be beyond the seller’s control. In this case, the seller failed to deliver the full quantity of pine nuts agreed under the contract and invoked Article 79 CISG, arguing that production had decreased due to disease and internal cooperative issues. However, the Court found that fluctuations in production were foreseeable and related to the seller’s own production system and relationships with cooperative members. Moreover, the seller continued supplying other customers and even offered to continue deliveries to the buyer under new payment conditions, indicating that performance was still possible. Consequently, the Court held that the seller’s non-performance resulted from its own commercial decision rather than an impediment beyond its control, and therefore Article 79 CISG did not apply.

Second, the impediment must not have been known or reasonably foreseeable to the breaching party at the time the contract was concluded or during its performance.

Under this criterion, the impediment must be unforeseeable not only to the breaching party but also to a reasonable person in the same circumstances, and it must occur in an unusual manner rather than as a regularly recurring event. In some situations, events that might be considered “force majeure” may nevertheless fail to satisfy the requirements of Article 79 CISG if they could reasonably have been anticipated. [15] For example, a flood disrupting transportation may normally constitute a force majeure event. However, if the flood had been forecast in advance, it could be regarded as foreseeable, and the seller may therefore remain liable under Article 79 CISG for failing to deliver the goods on time.

Another example is the case [...] v. Luka Food d.o.o.[16], which illustrates the requirement that the impediment must be unforeseeable under Article 79 CISG. In this case, the buyer transferred payment to a fraudulent bank account after receiving fake payment instructions through a hacked email appearing to come from the seller. The Supreme Court held that email fraud in modern international trade is reasonably foreseeable and that the buyer failed to exercise due diligence by not verifying the unusual payment instructions. Consequently, the Court found that the buyer’s non-performance resulted from its own negligence rather than an unforeseeable impediment, and therefore Article 79 CISG did not apply.

Third, the impediment and its consequences must be unavoidable and impossible to overcome.

Since the impediment lies beyond the control of the breaching party and could not reasonably have been foreseen, the damage resulting from such an impediment must be inevitable and unavoidable. When damage occurs, the party affected by the impediment must actively take measures to prevent or mitigate the impact of the event before giving notice to the other party. Even if the effects of the impediment are beyond the party’s control and cannot be avoided or overcome, the affected party is still required to take reasonable steps to prevent or minimize the damage. Moreover, the party must demonstrate that it has actively and diligently adopted such measures but was nevertheless unable to prevent the adverse effects on the interests of the aggrieved party. This element must therefore be carefully assessed in practice.[17]

According to CISG case law in the dispute between Macromex Srl (Romanian buyer) and Globex International (U.S. seller) [18], the seller invoked Article 79 CISG after Romanian government import ban on chicken due to avian flu prevented delivery. Although the tribunal accepted that the import ban could constitute an unforeseeable impediment beyond the seller’s control, it held that the seller failed to prove that the consequences of the impediment could not reasonably be avoided or overcome. In particular, the seller refused the buyer’s proposal to deliver the goods to another location outside Romania. Therefore, the tribunal concluded that Article 79 CISG was not applicable.

Fourth, the breaching party must comply with the obligation to give notice of the impediment and bear the burden of proving the existence of such impediment.

To begin with, in addition to proving the existence of an “impediment,” a party seeking exemption from liability in cases involving third-party impediments must also comply with the notification requirement set out in Article 79(4) CISG: “A party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.”

The breaching party must promptly notify the other party of the impediment and its effect on contractual performance within a reasonable time after becoming aware of it. The notice should provide sufficient details about the nature and seriousness of the impediment so that the other party may take appropriate measures. Failure to give such notice prevents the breaching party from relying on exemption under Article 79 CISG and may result in liability for damages caused by the lack of notice.

In addition to the obligation to give notice, the burden of proof is also a mandatory obligation for the breaching party if it wishes to rely on an exemption from liability based on an impediment. Article 79(1) of the CISG provides that: “A party is not liable for a failure to perform any of its obligations if it proves that the failure was due to an impediment beyond its control…”. This requirement aims to prevent parties from improperly relying on alleged impediments to avoid liability and to ensure an objective assessment of the circumstances.

To conclude, in order to rely on the exemption provided under Article 79(2) CISG, the breaching party must prove that the “double condition” for exemption is satisfied both with respect to itself and to the third party.

3. Vietnamese law on exemption from liability due to third-party impediments

Vietnamese law provides several grounds for exemption from liability for breach of contract in the 2015 Civil Code and the 2005 Commercial Law. These two legal instruments have established a legal framework governing international sales of goods in general and exemption from liability for breach of international sales contracts in particular. However, certain inconsistencies and a lack of coordination between these legal instruments remain, which may cause difficulties for businesses when invoking and applying these provisions.

Both the 2015 Civil Code and the 2005 Commercial Law recognize four main situations in which a party may be exempt from liability in commercial contracts. These include: agreements between the parties, the occurrence of a force majeure event, a breach entirely caused by the fault of the other party, and the implementation of a decision issued by a competent state authority that the parties could not have known at the time the contract was concluded.[19] As a result, exemption from liability resulting from the fault of a third party involved in performing part or all of an international sales contract has not been expressly regulated in Vietnamese legal documents.

Although the 2015 Civil Code recognizes the participation of third parties in contractual performance as follows: “When agreed by the obligee, the obligor may authorize a third party to perform the obligation on its behalf, but the obligor shall remain responsible to the obligee if the third party fails to perform or improperly performs the obligation.”[20] Despite this recognition, Vietnamese law does not contain detailed provisions on exemption from liability in situations where a third party encounters an impediment. Although there is no direct provision, Article 414 of the 2015 Civil Code indirectly addresses situations where non-performance is not attributable to the fault of either party: “In a bilateral contract, if one party is unable to perform its obligation and neither party is at fault, the party unable to perform shall not have the right to require the other party to perform its corresponding obligation. If one party has performed part of its obligation, it has the right to request the other party to perform the corresponding part.”

Similarly, Article 294 of the 2005 Commercial Law, which regulates cases of exemption from liability, recognizes a situation that may implicitly involve a third party. This is the case where the breaching party is exempt from liability due to the occurrence of a “force majeure event”.[21] In practice, force majeure may arise not only when the contracting parties themselves are directly affected, but also when a third party encounters such an event and therefore cannot perform its obligation toward one of the parties. This may lead to a breach of the contract with the other party. It can be observed that Vietnamese law does not regulate this issue as clearly as the CISG; therefore, the breaching party must establish several elements in order to rely on exemption from liability. In particular, the party must demonstrate a causal relationship between the force majeure event affecting the third party and the breach of contract. At the same time, the event affecting the third party must also qualify as a force majeure event for the breaching party.

The concept of force majeure is defined in Article 156(1) of the 2015 Civil Code as follows: “An event of force majeure is an event which occurs in an objective manner which is not able to be foreseen and which is not able to be remedied by all possible necessary and admissible measures being taken

An objective hindrance is a hindrance which in an objective context results in a person with civil rights or obligations not knowing that his or her lawful rights and interests have been infringed or not being able to exercise his or her rights or fulfill his or her civil obligations.”

A notable feature of the 2015 Civil Code is that the definition of force majeure is not placed in the section on obligations and contracts but rather in the section on limitation periods. This may be considered a technical drafting issue. However, in practice, this definition is still applied by courts to determine whether a force majeure event exists. In addition to the Civil Code, the definition of force majeure is also provided in various specialized legal documents. These regulations are generally consistent with Article 156(1) of the Civil Code. Such documents often list specific examples of force majeure events, including natural events (such as natural disasters, fires, storms, floods, tsunamis, earthquakes, sudden climate changes) and human-related events (such as wars, riots, strikes, epidemics, sabotage, embargoes, blockades, or acts of hostility by other forces).[22] Force majeure does not include events caused by the parties themselves.

The 2005 Commercial Law of Vietnam does not provide a specific definition or list of force majeure events. Instead, it only recognizes force majeure as a ground for exemption from liability for breach of contract. This approach is reasonable because the Commercial Law is a specialized law and may refer to the Civil Code where no specific definition is provided.

Overall, Vietnamese law approaches force majeure in a manner similar to the CISG, requiring three key elements: the event must be objective and beyond the parties’ control, unforeseeable, and unavoidable despite the application of necessary and reasonable measures.

Moreover, Vietnamese law maintains a relatively clear distinction between these two concepts: “an event of force majeure” and “an objective hindrance”. Although both can serve as grounds for exemption from liability when a breach is directly caused by such events, they differ in the following aspects:

First, force majeure makes contractual performance impossible, whereas objective hindrance only makes performance more difficult or burdensome. For example, force majeure may occur when flood damage prevents delivery of goods, while objective hindrance may arise from increased raw material prices that disrupt the contractual balance.

Second, the legal consequences of these two situations are different. In the case of force majeure, the breaching party may be exempted from liability for breach under the 2005 Vietnamese Commercial Law. Meanwhile, objective hindrance is not expressly regulated by legislators. Many scholars argue that in cases of objective hindrance, the parties must continue to perform their contractual obligations, but they have the right to request renegotiation of the contract rather than to terminate it.

4. Comparison between Vietnamese law and the CISG on exemption from liability due to third-party impediments in contracts for the international sale of goods

4.1. Similarities

First, events considered as “force majeure” under Vietnamese law correspond to the concept of an “impediment beyond control” under the CISG. Such events generally include three elements: first, the event must be beyond the control of the parties, meaning that it is objective in nature; second, the event must be unforeseeable; and third, its consequences must be unavoidable or impossible to overcome.

Second, both the CISG and Vietnamese law provide that the breaching party bears the burden of proving that its breach falls within a case of exemption from liability.

Third, both legal systems require the breaching party to notify the other party of the force majeure event within a reasonable time; otherwise, the breaching party may be liable for damages caused by the failure to give notice.

4.2. Differences

First, CISG case law shows that the scope of the concept of an “impediment beyond control” under the CISG is broader than the concept of “force majeure” provided in Article 156 of the 2015 Civil Code of Vietnam.

Exemption from liability under the CISG may also cover situations arising from “a fundamental change of circumstances” (hardship). According to CISG Advisory Council Opinion No. 7, a change of circumstances that could not reasonably have been foreseen and that makes the performance of the contract extremely difficult may constitute a ground for exemption under Article 79(1) CISG.[23] This view has developed from judicial practice in disputes concerning international sales contracts, where situations have arisen in which a fundamental change of circumstances made the performance of the contract extremely difficult and the obligated party sought exemption from liability. A notable example is the case Scafom International BV v. Lorraine Tubes S.A.S. (Belgian Supreme Court, 2009), the Court held that changed circumstances which were not reasonably foreseeable at the time of the conclusion of the contract, and which render performance excessively onerous, may constitute an impediment within the meaning of Article 79 CISG. ^[24] This decision suggests that hardship may, in certain circumstances, fall within the concept of “impediment” under Article 79 CISG. Meanwhile, in the case Dupiré Invicta industrie v. Gabo Sp. z o.o.[25], the Court rejected the seller’s hardship claim, holding that in international trade, fluctuations in prices are normal commercial risks that must be borne by the seller, unless otherwise agreed in the contract. Therefore, the fact that performance became more onerous does not amount to an “impediment” within the meaning of Article 79 CISG. Thus, this issue remains controversial because the CISG does not expressly regulate hardship.

In comparison, Vietnamese law first introduced the concept of “fundamental change of circumstances” in Article 420 of the 2015 Civil Code. According to paragraph 1 of this provision, a fundamental change of circumstances exists when the following conditions are met: “(i) the change of circumstances occurs after the conclusion of the contract due to objective reasons; (ii) the parties could not reasonably foresee the change at the time the contract was concluded; (iii) the change is so significant that, if the parties had known about it in advance, the contract would not have been concluded or would have been concluded with entirely different terms; (iv) the continued performance of the contract without modification would cause serious damage to one party; and (v) the affected party has taken all reasonable measures within its capacity, consistent with the nature of the contract, to prevent or minimize the negative effects but has been unable to do so.” These criteria indicate that the conditions for determining a “fundamental change of circumstances” under Vietnamese law are largely similar to the conditions suggested in CISG Advisory Council Opinion No. 7 regarding the application of Article 79(1) CISG. However, unlike the CISG, “a fundamental change of circumstances” under Vietnamese law does not constitute a ground for exemption from liability and leads to different legal consequences from those of “force majeure”.

According to CISG Advisory Council Opinion No. 7 and judicial practice, hardship may allow the breaching party to claim exemption from liability under the CISG. In contrast, under Vietnamese law, a fundamental change of circumstances is not a ground for exemption from contractual liability. Instead, when such circumstances arise, the disadvantaged party has the right to request renegotiation of the contract. If the renegotiation fails, the parties may request the court to resolve the dispute, and the court may decide to modify or terminate the contract.[26] Therefore, this represents a clear difference between the CISG and Vietnamese law. It can even be argued that the Vietnamese approach is more progressive in this respect. In practice, a fundamental change of circumstances does not always make the performance of the contract impossible; rather, it merely makes the performance extremely difficult. For this reason, allowing contract renegotiation or judicial modification may be a more appropriate solution than granting exemption from liability.[27]

Second, regarding the duration of exemption from liability, the approach of Vietnamese law differs from that of the CISG. While Article 79(3) CISG provides that exemption from liability only has effect during the period in which the impediment exists, Article 296 of the Vietnamese Commercial Law 2005 stipulates that a party encountering a force majeure event may be exempt from liability during the period in which the force majeure exists and within a reasonable time necessary to remedy its consequences. However, this provision also contains certain limitations. The extension of the time for performance may not always be appropriate in contracts where the time of performance is essential. This is often the case in international sales contracts or service contracts where a fixed date for delivery or completion has been agreed upon.[28] In such contracts, the purpose of the agreement may be closely linked to the agreed time of performance, so extending the deadline may undermine the contractual purpose.

In practice, however, not all international sales contracts specify a strictly fixed delivery date. Therefore, the possibility of extending the time for performance should be assessed based on the specific agreement of the parties. For example, if the contract only requires the seller to deliver the goods within approximately thirty days from the date of the contract, the delivery time may still be adjusted in the event of a force majeure situation. Moreover, the 2005 Commercial Law also provides that if the force majeure event lasts for an extended period, the parties may have the right to terminate the contract. By contrast, the CISG does not expressly provide a right for the party affected by force majeure to terminate the contract solely on this ground.

Third, regarding the obligations of the breaching party when invoking a force majeure event. Two basic obligations arise for the party invoking such an event: the obligation to give notice and the obligation to provide proof. Both Vietnamese law and the CISG provide that these are mandatory obligations if a party wishes to rely on exemption from liability. However, the two legal systems differ in the level of detail of their regulations. Vietnamese law provides more detailed provisions on the procedures, form[29], and time limits for fulfilling these obligations, whereas the CISG provides clearer and more in-depth regulation regarding the legal consequences arising from the failure to comply with these obligations.

Fourth, regarding the legal consequences of exemption from liability, where a breach of contract arises from an impediment beyond the control of the breaching party, the breaching party may be exempt from liability for damages. However, under the CISG, other remedies such as price reduction, specific performance, or avoidance of the contract may still be invoked by the aggrieved party.[30] In contrast, under Vietnamese law, Article 351(2) of the 2015 Civil Code provides that a party is not required to bear civil liability where the breach results from a force majeure event.

From the above analysis, it can be seen that although Vietnamese law does not contain explicit provisions regarding the role of third parties in cases of non-performance similar to Article 79(2) CISG, the provisions set out in Article 156 of the 2015 Civil Code and Article 294 of the 2005 Commercial Law partly reflect a relatively similar approach of Vietnamese law toward the issue of exemption from liability.

5. Certain limitations of Vietnamese law regarding exemption from liability due to third-party impediments in contracts for the international sale of goods

First, compared with the CISG, Vietnamese law lacks specific regulations on exemption from liability where a third party encounters an impediment preventing contractual performance. Current provisions under the 2005 Commercial Law and the 2015 Civil Code do not clearly determine the legal status or fault of the third party, nor do they expressly require proof of a causal link between the impediment and the breach.

Second, the concept of force majeure provided in Article 156(1) of the 2015 Civil Code mainly appears in provisions relating to the calculation of limitation periods for civil claims rather than providing a clear legal definition of force majeure. At the same time, the 2005 Commercial Law does not contain a specific definition of force majeure either. Although Articles 294, 295, and 296 of the 2005 Commercial Law refer to force majeure, these provisions mainly regulate procedural obligations, such as the requirement for the breaching party to notify the other party within a reasonable time when a force majeure event occurs; otherwise, the breaching party must compensate for damages. However, these provisions do not clearly define the scope and content of force majeure events, which creates difficulties in applying these rules in practice when resolving commercial contract disputes.

Third, the requirement that a force majeure event must be unforeseeable is also one of the most difficult conditions to prove in practice. Vietnamese law does not clearly specify the relevant point in time at which a party must reasonably foresee a force majeure event. Moreover, the 2015 Civil Code and related legal instruments do not address situations where an event could not be foreseen at the time of contract formation but later becomes foreseeable during the performance of the contract. In such circumstances, it remains uncertain whether the event should still be regarded as force majeure.

Fourth, Vietnamese law does not clearly provide criteria for assessing the efforts made by the affected party when applying “necessary measures” and measures “within its capacity” to prevent or mitigate the effects of a force majeure event. It remains unclear whether such efforts must be the maximum possible efforts or merely reasonable efforts appropriate to the circumstances of each case, and whether economic conditions should also be taken into account.

6. Recommendations for improving Vietnamese law on exemption from liability due to third-party impediments in contracts for the international sale of goods

Based on the analysis of the limitations in the current legal framework and its practical application, the author proposes several recommendations to improve Vietnamese law on exemption from liability in cases where a third party encounters an impediment in international sales contracts.

First, it is necessary to supplement regulations on exemption from liability in cases where a third party encounters a force majeure event that causes the non-performance of the contract. When introducing this additional ground for exemption, Vietnamese law should clearly specify the applicable conditions. In particular, the third party should be an independent entity engaged in performing all or part of the contract and whose actions have a direct impact on the ability of one of the contracting parties to perform its contractual obligations. In addition, the fault of the third party must arise from circumstances that constitute grounds for exemption under the law. In other words, the third party’s failure to perform must itself result from events that may justify exemption from liability, such as force majeure or the implementation of decisions issued by competent state authorities. Furthermore, the fault of the third party must be the direct cause of the breach committed by the breaching party and must be beyond the breaching party’s ability to remedy.

Accordingly, supplementing provisions on exemption from in cases where a third party encounters a force majeure event would be a reasonable step toward addressing existing gaps in Vietnamese law on exemption from liability. Moreover, such provisions would assist businesses in understanding the legal framework and enable adjudicatory bodies to apply the law more consistently when resolving disputes, particularly in the context of Vietnam’s accession to the CISG in 2017. Consequently, regulations on exemption from liability arising from the fault of a third party could be expected to be applied in practice in international sales transactions involving Vietnamese enterprises.

Second, Vietnamese law should establish a separate provision regulating force majeure. Such a provision may include the following conditions: (1) the event must be objective, independent of the will of the breaching party, and beyond the breaching party’s control; (2) the event must be unforeseeable, meaning that the parties neither knew nor could reasonably have known at the time of concluding the contract that such an event would occur; (3) the consequences of the event must be unavoidable or impossible to overcome despite the application of all necessary measures within the party’s capacity; and (4) the event must be the direct cause of the breach of contract committed by the breaching party.

Clearly defining these conditions would enable the parties to better understand the legal basis for protecting their lawful rights and interests, while also assisting competent authorities in resolving disputes and issuing fair and reasonable decisions based on such provisions.

Third, Vietnamese law should clarify the point in time at which a force majeure event must be unforeseeable. Following the approach of the CISG, an event should be considered force majeure only if the parties could not reasonably foresee it at the time of concluding the contract. This would require contracting parties to exercise reasonable diligence in obtaining information and assessing potential risks when entering into the contract. If the affected party knew or should have known about the possibility of such an event at the time of contract formation, that party should not be exempt from liability. Such a provision would help ensure consistency with international practice and reduce disputes regarding the application of exemption from liability.

7. Conclusion

In conclusion, Article 79(2) CISG establishes a relatively clear legal framework governing exemption from liability in cases where non-performance results from impediments encountered by third parties engaged in the performance of international sales contracts. Through the analysis of CISG provisions, case law, and legal scholarship, it can be seen that the interpretation of the concept of “third party” and the conditions for exemption from liability remains a complex issue in practice, particularly in distinguishing subcontractors from ordinary suppliers.

Compared with the CISG, Vietnamese law still lacks specific provisions regulating exemption from liability due to third-party impediments, which may lead to inconsistencies in legal interpretation and dispute resolution. Therefore, improving Vietnamese law in this area, particularly by clarifying the legal status of third parties and the applicable conditions for exemption, is necessary to enhance legal certainty and better align Vietnamese law with international commercial practice.

Citation:

References:

United Nations Convention on Contracts for the International Sale of Goods 1980.

The Vietnamese Civil Code 2015.

The Vietnamese Commercial Law 2005.

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MIỄN TRỪ TRÁCH NHIỆM DO TRỞ NGẠI TỪ BÊN THỨ BA

THEO CÔNG ƯỚC LIÊN HỢP QUỐC

VỀ HỢP ĐỒNG MUA BÁN HÀNG HÓA QUỐC TẾ (CISG) 1980

VÀ PHÁP LUẬT VIỆT NAM

Đinh Hà Ngân

Khoa Luật Quốc tế, Trường Đại học Luật Hà Nội (HLU)

Email: hangan040822@gmail.com

Tóm tắt:

Bài viết này nghiên cứu vấn đề miễn trách nhiệm do trở ngại từ bên thứ ba theo Khoản 2 Điều 79 của Công ước của Liên Hợp Quốc về hợp đồng mua bán hàng hóa quốc tế (CISG) trong sự so sánh với pháp luật Việt Nam. Cụ thể, bài viết phân tích các điều kiện để được miễn trách nhiệm và các án lệ liên quan của CISG nhằm làm rõ địa vị pháp lý của bên thứ ba trong hợp đồng mua bán hàng hóa quốc tế. Mặc dù CISG thiết lập một cơ chế tương đối cụ thể điều chỉnh vấn đề này, pháp luật Việt Nam hiện vẫn thiếu các quy định rõ ràng về miễn trách nhiệm trong trường hợp có trở ngại từ bên thứ ba, từ đó gây khó khăn trong cả việc giải thích pháp luật lẫn áp dụng trên thực tiễn. Thông qua phương pháp luật học so sánh, bài viết chỉ ra một số hạn chế trong khuôn khổ pháp lý hiện hành của Việt Nam về vấn đề này và đề xuất các kiến nghị nhằm nâng cao tính chắc chắn pháp lý trong các giao dịch thương mại quốc tế.

Từ khóa: Miễn trách nhiệm, bên thứ ba, trở ngại, bất khả kháng, hợp đồng mua bán hàng hóa quốc tế, pháp luật Việt Nam, CISG 1980.