Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 301-303. Reproduced with permission of the publisher, Kluwer Law International, The Hague.
§ 275 Article 45 sums up the remedies granted to the buyer in various parts of the Convention and indicates the relationship between them.
"(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.
"(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.
"(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract."
§ 276 A. The Range of Remedies
Paragraph (1)(a) of Article 45 draws attention to the buyer’s remedies that appear in this Section, while paragraph (1)(b) makes available the rules on damages applicable to both parties that appear in Chapter V.
Paragraph 1 serves as a useful index to the Convention’s remedial provisions but it does a bit more. The opening language: "If the seller fails to perform any of his obligations under the contract and this Convention, the buyer may ..." has legal bite. Some of the cited articles do not expressly state that they are available for breach; articles 74–77 state how damages are to be measured but do not expressly state that damages are to be awarded. Article 45 also emphasizes the unitary approach and strength of the remedies for breach of contract. (See Arts. 30 and 31, supra at §206 and §210.)
This approach is emphasized by paragraph (1)(b), which announces a principle that is more important than may be evident at first sight: the buyer may "claim damages" if the seller "fails to perform any of his [page 301] obligations under the contract or this Convention." By this language the Convention rejects the view that one who fails to perform his contract is not responsible in damages unless he has been negligent—an approach with an uneasy history in domestic law. Some legal systems that have espoused this doctrine have seen the principle become eroded and unclear. Other legal systems reject the "negligence" principle. In preparing uniform rules for international trade it was important to make a clear choice among these divergent approaches; that choice is expressed in the above-quoted language of Article 45(1)(b).
§ 277 B. Cumulation v. "Election" of Remedies
In domestic law the question whether recourse to one remedy excludes others has also been haunted by confusion. Case law and statutory rules in the common law world at an early stage denied the buyer compensation for damages if it rescinded the contract— e.g., by requiring the seller to take back defective goods. This approach may have been useful to defeat "rescission" (or rejection) based on a trivial grounds. But when the seller’s breach was serious, the buyer had to choose between forfeiting the right to damages or bearing the burden of disposing of seriously defective goods—a choice that in some cases pressed towards the rejection of goods which the buyer could salvage more efficiently than a distant seller. The early rules imposing such choices have been eroded or abandoned.
The Convention’s approach is stated in paragraph (2) of Article 45: "The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies." Thus, a buyer who requires the [page 302] seller to perform (Art. 46) may also recover damages (Art. 74) for the loss resulting from the delay or other deficiency in the seller’s performance. Similarly, a buyer who avoids the contract (Art. 49) may also claim damages (Art. 74) for the loss suffered as a consequence of the breach.
§ 278 C. Grace Period Granted by Tribunal
Article 45(3) (and a parallel provision in Article 61(3)) bars recourse to tribunals for a "period of grace" for performance. Judicial intervention to provide a "period of grace," available in some jurisdictions, was rejected as impractical for international trade. In the Convention protection against destruction of the contract on insubstantial grounds is provided by the opportunity to "cure" defects (Arts. 34, 37, 48) and by rules governing avoidance of the contract (Arts. 49, 64). See also Art. 51 (avoidance as to the nonconforming part of a delivery).[page 303]
FOOTNOTES: Chapter on Article 45
1. This article is the same as Art. 41 of the 1978 Draft. The corresponding provisions of ULIS are scattered among Arts. 24, 41, 51, 52 and 55; see the Introduction of Section III, supra at §272. See: Schlechtriem, Com. (1998) 356–374 (Huber).
2. Rabel, A Specimen of Comparative Law: The Main Remedies for the Seller’s Breach of Warranty, 22 Revista Jur. Univ. of P.R. 167, 180–188 (1953): The confusions and exceptions inherent in the "fault" principle prevented its use in unification since "straight-lined rules are necessary to a uniform law"; See also 1952 writing by Rabel (in German) cited by Will in B-B Commentary 330; Zweigert, Aspects of the German Law of Sale, in Comp. Sales (I.C.L.Q.) 1, 3–4 (damage liability without fault, although inconsistent with German law, is more appropriate for international trade); Houin, Sale of Goods in French Law, id. 16, 26.
3. For developments in English law see Art. 81, infra at n. 2. The choice imposed by the (U.S.A.) Uniform Sales Act (1906) §69 was overturned by UCC 2–711(1). The conflicting interests and commercial practices are discussed in Honnold, Buyer’s Right of Rejection, A Study in the Impact of Codification Upon a Commercial Problem, 97 U. Pa. L. Rev. 457 (1947). For conflicts among European legal systems see Will, supra note 2 at 331.
4. This general rule preserving the right to damages on avoidance is reinforced by the rules on damage-measurement in Arts. 75 and 76. The seller’s right to damages is protected by Art. 61(2), which parallels Art. 45(2). On the other hand, the right to compel performance (Arts. 46, 62) and to avoid the contract (Arts. 49, 64) may be lost by action that is inconsistent with these special remedies. See Arts. 46(1) and 62, infra (specific performance) and Arts. 48(2), 49(2), 63(2) and 64(2), infra (avoidance).
5. On French rules allowing a délai de grâce see Treitel, Remedies (Int. Enc.) §§147–148; Treitel, Remedies (1988) 323, 331–332 (other legal systems); Zweigert & Kötz II (1987) 187. For rejection of this procedure even in legal systems that are influenced by French law see Will, supra note 2 at 332.