[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
Joseph Lookofsky
277. If the seller has committed a fundamental breach of contract, Articles 67, 68 and 69 do not impair the remedies available to the buyer on account of the breach.[1] Therefore, in the case of fundamental breach, although the risk has passed, the buyer may be able to insist on the delivery of substitute goods,[2] or to avoid the contract,[3] i.e. avail herself of remedies which would not ordinarily be available as regards goods lost or damaged as a result of Acts of God, etc. Nor will the fact that the buyer is unable to make restitution necessarily constitute a bar to avoidance in such a case.[4] [page 146]
Pace Law School
Institute of International Commercial Law - Last updated April 5, 2005