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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 63
Sellerís Nachfrist Warning, Fixing an Additional Performance Period

258. Under the general Convention rule, the seller is entitled to avoid (tenninate) only by reason of the buyer's fundamental breach.[1] However, in cases where the buyer does not pay or take delivery, the seller may also avoid if the buyer does not perform within an additional period of time fixed by the seller in accordance with paragraph (1) of Article 63.[2] This rule provides:

'The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations.'

Once the buyer is late in performing, the seller may have reason to doubt whether the buyer will perform before the breach becomes truly serious, thus entailing a substantial detriment which would entitle the seller to avoid; indeed, the seller may have reason to doubt how the Convention requirement of fundamental breach will be applied in a given case.[3] For this reason, the CISG gives the seller the right to fix an additional period of time, after which the seller may avoid without having to consider whether the total delay has reached 'fundamental' proportions.[4]

Once a Nachfrist notice is sent, the seller must await the buyer's reaction. During the period fixed, seller may not resort to any remedy he might otherwise have by virtue of the breach.[5]

1. Article 64(1)(a): infra No. 259.
2. Article 64(l)(b), infra No. 261.
3. Regarding Article 25, see generally supra No. 136 et seq. Compare also supra No. 219.
4. Regarding Article 64(l)(b), see infra No. 261.
5. Article 63(2) provides:
'Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance.' [page 137]

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