[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).]
208. Section III of Chapter II (Articles 45-52) is entitled 'Remedies for Breach of Contract by the Seller.'
These remedial rules form the core of the Convention regime. For every breach by the seller of an enforceable CISG sales contract, there must be some remedy. Article 45(1) summarizes the remedies which the Convention makes available to the buyer for seller's breach: [page 114]
B. Performance, Avoidance and Damages for Breach
209. The buyer's remedial rights, which are referred to in subparagraph (a) of Article 45(1), and more carefully detailed in Articles 46 to 52, concern the right to require specific performance and the right to avoid.
Subparagraph (b) of Article 45(1) refers to the rules in Chapter V of CISG Part III (Provisions Common to the Obligations of the Seller and of the Buyer) which concern the extent and measurement of damages for breach.
Whether a given breach entitles a buyer to relief within one or more of these three fundamental remedial categories will always depend both on the particular circumstances and on the applicable CISG rule(s).
C. No-Fault Liability Based on Breach
210. On the other hand, it should be emphasized that Article 45 does not merely provide a 'catalogue' of the buyer's various CISG remedies for seller's breach. In particular, Article 45(1) constitutes the very source of the buyer's right to claim damages for breach. According to Article 45(I)(b): 'If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may ... claim damages as provided in articles 74 to 77.'
Since the buyer may thus claim damages for any breach (failure to perform), and since (as will be seen) Articles 74-77 concern only the extent and measurement of damages, Article 45(1) clearly represents a no-fault liability rule: i.e., assuming that the injured party has suffered some loss, the basis of Convention liability in damages is the breach itself, without more. (The limited 'exemptions' made available to the seller under Article 79 do not water Article 45(1)(b) down to a rule of liability based on culpa or fault).
D. Relationship Among Remedies
211. As indicated previously, the right to demand specific performance (require that the seller perform) is not compatible with the right to avoid (demand an end to the obligations of both parties), but there is no mutual exclusivity as between the right to demand either specific performance or termination (on the one hand) and the right to demand damages (on the other). Article 45(2) confirms the point: 'The buyer is not deprived of any rights he may have to claim damages by exercising his right to other remedies.'
E. No Grace Period in CISG Context
212. Under some domestic legal systems, a (serious) delay in delivery does not necessarily give the buyer the right to avoid the contract, in that the seller may apply to a court for a delay of grace (délai de grâce) which - if granted - effectively establishes a new delivery date. Under the Convention, however, the buyer's right to avoid for fundamental breach cannot be defeated by such a délai de grâce. Indeed, Article 45(3) expressly provides that no period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to any remedy for breach of contract.