[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).]
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). 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:
2. Article 37, Fundamental Breach and Avoidance
183. As indicated previously in connection with Article 25, and as developed more fully below in the discussion of buyer's remedies for seller's breach, 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; 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.
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]