ElectronicjournalofcomparatiVeLaw,vol.8.1(march2004),<http://www.ejclorg/> performance leads to collapse, or is it sufficient that performance is disturbed greatly but the debtor would be able to perform thanks to financial reserves? In the latter case it would be ruinous in the sense that any other performance of this kind would lead to the debtors economic collapse. The distinction is very important. A financially strong debtor may sustain a major imbalance while the same case may be ruinous for a financially weaker party It is submitted that the financial power to sustain a major imbala ance must irrelevant because it does not fit the test embodied in article 6: 11 1. This can be explained by looking at the Article itself. Paragraph(1)provides two helpful examples for events that make performance more burdensome: firstly, increase in the cost of performance and secondly devaluation of the counter-performance. Although the initial reference to the party seeking relief, which would accord with the testing method for impossibility,or formance might suggest that the assessment should focus on the isolated performance of Article 6: 1 11 looks at the proportionality of the two performances for only this view can explain why the diminution of the counter-performance's value may suffice The overall financial situation, however, has nothing to do with a comparison of the two performances, thus taking it as the decisive criterion would not fit the comparison embodied in Article 6: 111. It would replace the test with a test of general economic capacity an assessment of the debtor's pockets depth. From the view taken here, the ruinous-test reflects rather the exceptional character of paragraph(2)and may indicate major imbalance In fact it constitutes a threshold exclud ing insubstantial aggravations. Looking at the has become excessively onerous 62 e pal imbalance of the performances in the particular case must thus assess whether a performance The PECL's commentary gives as an example the unexpected closure of the Suez Canal. b3 This happened, too, in the English case of Tsakiroglou Co Ltd v Noblee Thorl GmbH o4 The plaintiff had sold Sudanese nuts c.i.f. Hamburg to the defendant. The usual route from Port Sudan to Hamburg is through the Suez Canal. However, due to the Suez Crisis the canal was blocked and the plaintiff refused to ship the nuts around the Cape of Good Hope, which would have taken twice as long as the route originally intended and would be far more costly. Whereas the PECl would demand the parties to renegotiate, the house of Lords denied frustration and thus upheld the contract. 65 However, some questions remain unanswered. Neither wording nor commentary clarifies how the counter-performance's devaluation should be calculated. An objective calculation would tackle, for example, the case of inflation. If, however, a subjective assessment is allowed, Article 6: 11 l's scope of application would be considerably wider. On the latter approach, it would also cover cases commonly regarded as of frustration of purpose An illustration in the Unidroit Principles of international Commercial Contracts(henceforth This concurs with the position adopted by the PIcc in Art 6. 2. 2; cf the wording equilibrium of the contract ando/ Beale, n2, 325(comment B() sakiroglou& Co Ltd v Noblee Thorl GmbH [1962]AC 93 Ibid. 103Electronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 10 performance leads to collapse, or is it sufficient that performance is disturbed greatly but the debtor would be able to perform thanks to financial reserves? In the latter case, it would be ruinous in the sense that any other performance of this kind would lead to the debtor’s economic collapse. The distinction is very important. A financially strong debtor may sustain a major imbalance while the same case may be ruinous for a financially weaker party. It is submitted that the financial power to sustain a major imbalance must be irrelevant because it does not fit the test embodied in Article 6:111. This can be explained by looking at the Article itself. Paragraph (1) provides two helpful examples for events that make performance more burdensome: firstly, increase in the cost of performance and secondly devaluation of the counter-performance. Although the initial reference to ‘performance’ might suggest that the assessment should focus on the isolated performance of the party seeking relief, which would accord with the testing method for impossibility, Article 6:111 looks at the proportionality of the two performances; for only this view can explain why the diminution of the counter-performance’s value may suffice. The overall financial situation, however, has nothing to do with a comparison of the two performances, thus taking it as the decisive criterion would not fit the comparison as embodied in Article 6:111. It would replace the test with a test of general economic capacity, an assessment of the debtor’s pocket’s depth. From the view taken here, the ruinous-test reflects rather the exceptional character of paragraph (2) and may indicate major imbalance. In fact it constitutes a threshold excluding insubstantial aggravations. Looking at the imbalance of the performances in the particular case must thus assess whether a performance has become excessively onerous.62 The PECL’s commentary gives as an example the unexpected closure of the Suez Canal.63 This happened, too, in the English case of Tsakiroglou & Co Ltd v Noblee Thorl GmbH. 64 The plaintiff had sold Sudanese nuts c.i.f. Hamburg to the defendant. The usual route from Port Sudan to Hamburg is through the Suez Canal. However, due to the Suez Crisis the canal was blocked and the plaintiff refused to ship the nuts around the Cape of Good Hope, which would have taken twice as long as the route originally intended and would be far more costly. Whereas the PECL would demand the parties to renegotiate, the House of Lords denied frustration and thus upheld the contract.65 However, some questions remain unanswered. Neither wording nor commentary clarifies how the counter-performance’s devaluation should be calculated. An objective calculation would tackle, for example, the case of inflation. If, however, a subjective assessment is allowed, Article 6:111’s scope of application would be considerably wider. On the latter approach, it would also cover cases commonly regarded as of frustration of purpose. An illustration in the Unidroit Principles of International Commercial Contracts (henceforth 62 This concurs with the position adopted by the PICC in Art 6.2.2; cf the wording ‘equilibrium of the contract’. 63 Lando/Beale, n 2, 325 (comment B(i)). 64 Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93. 65 Ibid, 103