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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 37
Seller's Right to 'Cure' Defects

  1. Cure in Context
  2. Article 37, Fundamental Breach and Avoidance

1. Cure in Context

182. A CISG seller who delivers non-conforming (e.g., defective) goods will ordinarily become liable for breach in accordance with the Convention's remedial scheme (as defined in Section III of Chapter II).[1] However, by providing a seller who delivers early with a certain right to 'cure' (remedy) deficiencies and/or non-conformities in the goods so delivered, Article 37 gives the seller in this situation the right to exercise a kind of 'damage-limitation' and also limit the extent of remedial relief otherwise available to the injured buyer. According to this provision:

'If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.'

1. See infra No. 208 et seq. See also the more general remedial rules set forth in Chapter I (supra No. 136 et seq.) and Chapter V (infra No. 278 et seq.).

2. Article 37, Fundamental Breach and Avoidance

183. As indicated previously in connection with Article 25,[1] and as developed more fully below in the discussion of buyer's remedies for seller's breach,[2] a buyer is entitled to avoid a CISG contract if seller's failure to perform amounts to a 'fundamental' breach. In cases where the seller delivers earlier that the date required by [page 101] the contract and the Convention (i.e., 'before the date of delivery'), and it becomes apparent that the goods do not conform (with respect to quality or quantity), Article 37 provides a seller in this particular situation with the means to limit the injured buyer's right to avoid. For, given these circumstances, unless it becomes 'clear' that the seller will not cure (or cannot cure without causing the buyer unreasonable inconvenience or expense), the buyer cannot avoid until the actual delivery date has passed;[3] and the same is true if the non-conformity is effectively 'cured' before the delivery date, for the buyer cannot then be said to suffer a detriment which substantially deprives him of what he was entitled to expect.[4]

1. Supra No. 136 et seq.
2. Regarding avoidance under Article 49, see infra No. 224 et seq.
3. See Honnold, Uniform Law at p. 269, noting that Article 37 also restricts avoidance under Article 72 re. anticipatory breach (this provision is discussed infra No. 283 et seq.).
4. See discussion infra No. 225.

184. Article 37 should also be considered in conjunction with Article 48 which provides the seller with the right to cure 'even after the date of delivery.'[l] [page 102]

1. See discussion infra No. 220 et seq.

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