Gaps in the Law and the Defense of Simultaneous Performance in the CISG

This paper examines the concept of the defense of simultaneous performance within the framework of the CISG. The defense of simultaneous performance, where each party in a bilateral contract must perform their obligations concurrently, is a principle recognized in various national laws but is not explicitly stated in the CISG, creating a “gap in the law.” By analyzing cases from Germany, the USA, Italy, France, China, Australia and the ROK, the paper demonstrates how different jurisdictions handle the defense of simultaneous performance under the CISG. The study finds that Articles 58 and 71 of the CISG implicitly support this defense by allowing for the withholding of performance until the other party fulfills their obligations. The paper concludes that addressing gaps through analogical interpretation of these articles aligns with international standards and ensures uniform application across different legal systems, emphasizing the importance of adhering to the principles of the CISG rather than relying on domestic civil law.