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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 26 [Notice of avoidance]

[TEXT OF THE UNIFORM LAW]

A declaration [1] of avoidance of the contract [2] is effective only if made by notice to the other party [3].

[WORDS AND PHRASES, CONCEPTS

1. declaration of avoidance
2. scope of avoidance remedy
3. the notice to the other party ]

[COMMENTARY]

[1] [declaration of avoidance]

      [1.1] Prescribing a declaration of avoidance, the CISG breaks with the ipso facto avoidance, i.e. avoidance by virtue of law, which has played a great role in ULIS, thus overcoming the uncertainty as to whether, and possibly when, the contract is made void. Avoidance constitutes a right. Since it is made dependent on a declaration, the entitled party can consciously decide to continue to claim performance of the contract even when there are grounds for avoidance. This being the case, the rule also has the effect of preserving the contract and its specific performance. The requirement of a declaration of avoidance is relevant because otherwise tradesmen, who are [page 116] supposed to work on the basis of the CISG would not always be aware that certain conduct could automatically entail the avoidance of the contract. The entitled party can, however, achieve partly similar effects when he, in cases where the right to make the contract void follows from the expiry of a Nachfrist without performance (Art. 49, subpara. (b); Art. 64, subpara. (b)), already in fixing such Nachfrist, declares the contract void If the other party does not perform within that additional period.

      [1.2] A specific form is required for the one-sided avoidance insofar as it has to be made in the form of a declaration, which can be oral or in writing (Secretariat's Commentary, O.R., 27; Date-Bah/BB, 224 referring to the legislative history of the provision). Avoidance of a contract by conduct implying an intent, e.g. the mere sending back of delivered and fundamentally non-conform goods, is not sufficient.

[2] [scope of avoidance remedy]

Avoidance of a contract is provided for by the Convention in Articles 49, 51, 64, 72 and 73. The rule applies to all those cases, but also for contractually agreed grounds for avoidance.

[3] [the notice to the other party]

      [3.1] [dispatch rule]

In a comparison with Article 27, it is sufficient for the declaration to be made with the means appropriate under the circumstances. An indirect, more accidental notice to the other party is, therefore, insufficient (example given by Date-Bah/BB, 224 fol). The dispatch is decisive. An oral notice could thus be given by phone to an answering machine. Written notices would have to be sent using the customary ways of communication. It is not necessary that the communication reaches the other party. The problem involved in the procedure envisaged in Article 27 becomes clearly evident in this case since it is possible for a party to continue performance of the avoided contract because he did not receive the notice.

      [3.2] [notice of grounds for avoidance: specificity; when provided]

The notice, of course, has the desired effect only when the grounds for avoidance were indeed given. But this can be doubtful. Since a fundamental breach of contract may become obvious only if it persists (note 3.4. of Article 25), it is possible, therefore, that this occurs only after the notice is given. In our view it should be considered as effective. [page 117]

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Pace Law School Institute of International Commercial Law - Last updated August 9, 2002
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