Published by Manz, Vienna: 1986. Reproduced with their permission.

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The Buyer's Remedies for Breach of Contract by the Seller

The Convention provides a section on remedies for each of the parties; the remedies do not follow the provision for each individual type of breach, as they do in ULIS. The consolidation of remedies based on the uniform concept of "breach" did not fully succeed, however, because some remedies apply only to particular kinds of breach by the seller. In addition, the remedies for breach of instalment contracts in Chapter V Article 73 belong in this section.

Article 45 offers an overview of the remedies available to the buyer in the event of a breach - specific performance, avoidance, compensatory damages, and price reduction.[287] These relate to all of the seller's obligations and include particularly those regarding documents.[288] The cumulation of damage claims with other remedies is explicitly contemplated in Article 45(2).

Domestic laws that permit the courts or arbitral tribunals to grant a seller in breach extra time to perform are expressly excluded by Article 45(3), both because such grace periods are inappropriate for international trade and because judicial discretion in their application could favor the party at home in the forum.[289] Domestic rules favorable to the buyer, such as additional remedies, are also excluded. A Dutch proposal [290] was rejected which would have excluded domestic remedies, such as avoidance for mistake, when the required notice of defects is not given. However, only one of the opposing votes was based on the belief that, because questions of contract validity are excluded from its sphere of application, the Convention should avoid them.[291] Others approached the question from exactly the opposite direction, namely that domestic law is not applicable at all in these cases.[292] The rejection of the Dutch proposal, therefore, should not be understood to mean that domestic laws permitting a contract to be voided on the basis of lack of conformity or rescinded for mistake are still generally applicable through Article 4(a). If they were, the goal of uniformity in the prerequisites and consequences of breach of contract involving the delivery of non-conforming goods would be greatly endangered.[page 75]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

286. See Articles 40 (defects in quality), 43(2) (defects in title).

287. A claim for specific performance is thus clearly seen as a sanction for not fulfilling a contractual obligation. Compare the corresponding view on claims for performance in ULIS in Dölle (Huber) Article 24 § 6 with Huber, in Festschrift für Ernst von Caemmerer 837 et seq., 847 et seq. (1978). As to details of the buyers remedies, Cf. Plantard and Tercier in Lausanner Kolloquium at 112 and 120; Welser at 116 et seq.

288. A provision like ULIS Article 51 was therefore not needed.

289. Secretariat's Commentary at 116 § 5.

290. A/Conf. 97/C.1/L.175 (= O.R. 119).

291. A/Conf. 97/C.1/SR.24 at 3 § 7 (= O.R. 367) (Ghana). But see Bydlinski at 86.

292. A/Conf. 97/C.1/SR.24 at 3 § 10 (= O.R. 367) (Greece).

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