[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. Right to Require (Specific) Performance
213. If a seller fails to perform his promise, the Convention permits the buyer to require that the seller perform as promised: (1) deliver, (2) deliver substitute goods, or (3) cure defective delivery. Dealing with the first of these options, Article 46(1) provides:
Paragraph (1) of Article 46 is designed to deal with the situation where seller's breach consists of a total failure to perform. In such an event, the buyer may demand performance unless he has resorted to an inconsistent remedy, i.e. avoidance.
2. Specific Performance and the Duty to Mitigate Damages
214. In addition to the express ('inconsistency') limitation set forth in paragraph (1) of Article 46, it has been suggested that the right to require performance should be interpreted in conjunction with an injured party's Convention obligation to mitigate damages, as well as the requirement that the Convention be interpreted with regard to the need to promote good faith in international trade, in that a buyer's right to compel specific performance - for example after a market change - might permit the buyer to speculate at the seller's expense. However, because the Convention version of the mitigation rule applies expressly as a limitation on the right to recover damages, and because of the legislative history rejecting an amendment to that (Article 77) rule, there is considerable support for the views of those who would deny the application of mitigation as a limitation of the right to claim performance. As regards the CISG case law on this subtle (and largely theoretical) question, however, 'the jury is still out'.
3. Specific Performance Limited by Forum Law
215. In any event, Article 46(1) must always be read in light of Article 28. That is to say, a court or arbitral tribunal asked to require that a seller perform need not necessarily make such an order when the requirements of Article 46(1) are satisfied. For even in this situation, the court or tribunal must consider whether specific relief would be available pursuant to the domestic sales law of the forum State. And if the court or tribunal finds that specific relief would not be available under the corresponding domestic law, the court or tribunal is 'not bound' to require performance under the Convention.
The foregoing 2-step process, involving both an analysis of the Convention and an analysis under forum law, surely applies to cases falling under Article 46, paragraph (1), i.e. where the seller does not deliver at all. Arguably, it should also apply to those forms of specific performance described in paragraphs (2) and (3).
4. Require Delivery of Substitute Goods
216. Unlike Article 46(1), paragraph (2) of Article 46 deals with the situation where the goods have been delivered. The problem here is that the goods delivered 'do not conform':
Typically, the lack of conformity referred to in Article 46(2) will relate to a breach of the seller's obligations under Article 35, but the buyer's right to require specific performance in the form of re-delivery also extends to breaches which relate to the seller's obligation to deliver unencumbered goods under Article 41.
In any case, to require delivery of substitute goods may entail a severe and potentially 'disproportionate' financial burden for the seller. For this reason, Article 46(2) conditions a buyer's right to require re-delivery in much the same way as it conditions a buyer's right to avoid the contract entirely: like avoidance, re-delivery requires a showing of fundamental breach. Therefore, the buyer must suffer a detriment which substantially - perhaps even more than 'materially' - deprives him of what he is entitled to expect under the contract, and the detriment must also be one which this seller (or a reasonable) seller ought to have foreseen. In addition, the request for re-delivery must be made in conjunction with (or shortly after) a notice which specifies the nature of the lack of non-conformity.
In order to require re-delivery, the buyer must be prepared to return the goods already received. In most cases, the buyer loses the right to require that the seller deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them.
5. Right to Demand Re-delivery Limited by Forum Law
217. To require a seller to re-deliver is to require him to perform his obligations as promised. Therefore, it is submitted - though, as yet, hardly settled - that Article 28 may work to limit Article 46(2). So, even assuming that the various Convention re-delivery requirements (fundamental breach, etc.) are met, a forum court ought 'not [be] bound' to require such performance under the Convention if this form of specific relief would not be available pursuant to the corresponding domestic law of the forum State.
6. Buyer's Right to Require that Seller Remedy Non-conformity (Cure)
218. Under the Convention, and depending on the circumstances, a seller's non-conforming delivery may ultimately be remedied ('cured') for one of two reasons: either because the buyer demands (and is granted) this remedy or because the seller exercises his own right to repair. It should therefore be emphasized that paragraph (3) of Article 46 deals (solely) with the buyer's right to require that seller remedy a defective delivery by repair:
In many situations, it will be more convenient and less expensive for the seller to repair the goods delivered (than to return the non-conforming goods to the country of origin and re-ship new goods from there). This fact helps explain why the Convention does not condition the buyer's right to demand that seller repair upon a showing of a 'fundamental breach.' In fact, the starting point in Article 46(3) is that any breach of the seller's obligation to deliver conforming goods entitles the buyer to demand this particular kind of specific performance.
On the other hand, a concrete evaluation of the situation is always required, in that the seller need not repair whenever this would be 'unreasonable' having regard to all the circumstances. It would, for example, seem unreasonable to require a distant seller to utilize his own facilities or to travel a great distance to repair a minor defect, especially in light of the buyer's general duty to take appropriate measures to minimize loss suffered as a consequence of seller's breach, but also in light of the other Convention remedies at the buyer's disposal. [page 119]
Since the right to demand repair is (at least arguably) a species of the more general right to demand performance as promised, Article 28 should also work to limit the operation of Article 46(3).