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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 26
When Avoidance Declaration Effective

138. Like Article 25, Article 26 is a general provision relating to the right of either injured party (seller or buyer) to avoid.

Because avoidance can have serious consequences for the party in breach (requiring, e.g. that a breaching seller retake possession of the goods on foreign [page 79] soil), Article 26 provides that a declaration of avoidance of the contract is effective only if made by notice to the other party. It also follows that the contract is avoided as of the point in time when the notice takes effect, i.e. 'upon dispatch'.[1]

On the other hand, assuming the injured party is entitled to avoid, e.g. by reason of a fundamental breach or, e.g. the breaching party's failure to duly comply with a reasonable Nachfrist notice, a single Article 26 notice will suffice: unlike some domestic systems, the Convention does not first require a 'warning' notice which declares in advance the injured party's intention to avoid.[2] [page 80]

1. See infra No. 139. Depending on the circumstances, a declaration of avoidance may be revoked, i.e., even after it takes effect. See id. with note 4.
2. See A/CONF./97/5, Secretariat's Commentary to Article 24 of the 1978 draft. As already indicated, the Convention permits the issuance of a Nachfrist warning which may serve to obviate the need to establish a fundamental breach. Regarding seller's non-delivery and Articles 47(1) and 49(1) (b), see infra Nos. 219 and 225. Regarding buyer's non-payment and Articles 63(1) and 64(1) (b), see infra Nos. 258 and 259.

Pace Law School Institute of International Commercial Law - Last updated April 4, 2005