Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 513-514. Reproduced with permission of the publisher, Kluwer Law International, The Hague.
§449 This article, like Article 81 (§444, supra), addresses the relationship among different remedies. Article 82, supra, dealt with the effect of substantial changes in the condition of goods after their receipt by the buyer, and provided that in specified circumstances these changes made it inappropriate for the buyer to exercise two of the remedies provided by the Convention—the right to avoid the contract (Art. 49) and the right to require the seller to deliver substitute goods (Art. 46(2)). Article 83, perhaps unnecessarily, states that Article 82 does not prevent buyers from exercising their other remedies.
"A buyer who has lost the right to declare the contract avoided or to require the seller to deliver substitute goods in accordance with article 82 retains all other remedies under the contract and this Convention."
§449 Article 83 states that although a buyer loses the two remedies governed by Article 82 (§§445-448.2, supra), the buyer "retains all other remedies under the contract and this Convention". Remedies that are clearly preserved, without regard to changes in the condition of the goods after their receipt, include the buyer’s right to recover damages (Arts. 45(1)(b), 74–76) and to reduce the price (Art. 50). The buyer’s right to require the seller to "remedy the lack of conformity by repair" (Art. 46(3)) also remains available unless resale, consumption, processing or other change in the condition of the goods makes repair "unreasonable having regard to all the circumstances" (Art. 46(3), first sentence).
Is a buyer’s right to "require performance by the seller" under Article 46(1) a remedy distinct from the buyer’s right under Article 46(2) to "require delivery of substitute goods" when their "lack of conformity constitutes a fundamental breach of contract"? To answer this question we need to examine situations in which Article 82 bars the buyer from requiring the delivery "of substitute goods" (Art. 46(2)). For example, assume that the buyer resells, consumes or otherwise transforms the goods [page 513] after the buyer discovers their lack of conformity. Under these circumstances the exception provided by Article 82(2)(c) is inapplicable; consequently, Article 82(1) provides that the buyer has lost its right under Article 46(1) to require the seller to deliver substitute goods. In this setting there are few situations in which the buyer may (Art. 46(1)) "require performance" by the seller without contravening the more specific rules of Article 46(2) and 82 defining the circumstances in which the buyer may not require the "delivery of substitute goods".
Of course, the buyer’s right under Article 46(1) to "require performance", and the more specific right under Article 46(2) to require the delivery of substitute goods, are unimpaired in the many situations that lie outside the narrow scope of Article 82. (As we have seen, Article 82 preserves these two remedies when the condition of the defective goods has not "substantially" changed after their receipt (Art. 82(1)) and also in the cases described in Article 82(2)(a), (b) and (c).) For example, assume that the buyer has resold, consumed or transformed the goods before discovering their lack of conformity; here, as we have seen, Article 82(2)(c) preserves the buyer’s right to require the seller to deliver substitute goods. The buyer will not be able to exchange the initial shipment for the "substitute goods" but, under Article 84(2)(b), infra, the buyer "must account to the seller for all benefits he has derived from the goods". Of course, the sum for which the aggrieved buyer must "account" will be reduced or extinguished (Art. 74) by the "loss, including loss of profit, suffered by" the buyer "as a consequence of the breach".
See: Schlechtriem, Com. (1998) 652–653 (Leser).[page 514]
FOOTNOTES: Chapter on Article 83
1. This article is substantially the same as Art. 68 of the 1978 Draft and ULIS 80.
2. Assume that a buyer has processed or sold goods after knowledge of a third-party claim of ownership (Art. 41) or infringement of intellectual property (Art. 42). Article 82(2)(c) may bar the buyer from avoiding the contract or requiring the seller to deliver substitute goods but should not bar the buyer from "requiring performance" by the seller (Art. 46(1)) of an implied obligation under Articles 41 or 42 to remove or defend the third-party claim. See §270.1, supra.
3. The right to recover damages for breach of contract under Article 74 when the buyer requires the delivery of substitute goods (Art. 46(1) is preserved by the general language of Article 83; the obligation to account for benefits received from goods under Article 84 is made specifically applicable (subparagraph (2)(b)) when the buyer has "declared the contract avoided or required the seller to deliver substitute goods". Avoidance of the contract and requiring the delivery of substitute goods present similar problems and are expressly linked in Articles 82(1), 83 and 84(2)(b).