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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 61
Remedies for Breach of Contract by Buyer

A.  Introduction
B.  Performance, Avoidance and Damages for Breach
C.  No-Fault Liability Based on Breach
D.  Relationship Among Remedies
E.  No Grace Period in CISG Context

A. Introduction

250. Section III of Chapter III is entitled 'Remedies for breach of contract by the buyer.'

For every breach by the buyer of an enforceable CISG sales contract, there must be some remedy.[1] Article 61(1) summarizes the remedies which the Convention makes available to the seller for buyer's breach:

'If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may:
a) exercise the rights provided in articles 62 to 65;
b) claim damages as provided in articles 74 to 77.'

1. See the Overview, supra No. 40 et seq..

B. Performance, Avoidance and Damages for Breach

251. The seller's rights referred to in subparagraph (a) of Article 61(1), and detailed in Articles 62 to 65, concern the right to require (specific) performance and the right to avoid; subparagraph (b) 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 seller to relief within one or more of these three fundamental categories will generally depend both on the particular circumstances and on the applicable CISG rule(s).

C. No-Fault Liability Based on Breach

252. Article 61(1) does more than merely catalogue the various CISG provisions regarding seller's remedies for buyer's breach. Article 61(1) provides the basis of the buyer's liability; it is, in other words, the very source of the seller's right to claim damages for buyer's breach.[1] According to Article 61(1)(b), '[i]f the buyer fails to perform any of his obligations under the contract or this Convention, the seller may ... (b) claim damages as provided in articles 74 to 77.' Since Articles 74 to 77 concern only the 'extent' and/or 'measurement' of damages, and since Article 61(1)(b) bluntly states that the seller may claim damages thus measured for any breach, Article 61(1) represents a no-fault liability rule. So, assuming that the [page 134] 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 buyer under Article 79 do not water Article 61 down to a fault rule based on culpable breach.[2]

1. See A/CONF./97/5, para. 1 of the Secretariat's Commentary to Article 57 of the 1978 Draft Convention.
2. Regarding Article 79, see infra No. 298 et seq. Compare also supra No. 210.

D. Relationship Among Remedies

253. As indicated previously,[1] 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 61(2) confirms the point: 'The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies.'

1. Supra No. 43.

E. No Grace Period in CISG Context

254. In some legal systems, where a buyer's failure to pay would otherwise permit the seller to avoid (terminate) the contract, the buyer may apply to a court for a delay of grace (délai de grâce) which, in effect establishes a new payment date.[1] Under the Convention, however, avoidance is usually triggered by a fundamental breach.[2] Therefore, Article 61(3) provides: 'No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract.'

1. Regarding, e.g. the French domestic rules, see Treitel, Remedies for Breach of Contract at p.323.
2. Regarding Article 64(1)(a), see infra No. 259 et seq. Regarding the Nachfrist warning under Article 64(1)(b), see No. 261 et seq.
[page 135]


Pace Law School Institute of International Commercial Law - Last updated April 5, 2005
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