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

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a) Claims for Performance (Articles 46 and 47)

The buyer can request specific performance as long as he has not chosen a remedy which is inconsistent with it (Article 46(1)) or forfeited his right to it by his failure to give the required notice. Specific performance is inconsistent with the buyer's avoidance of the contract and also with his reduction of the price where he could have demanded the repair of non-conforming goods or additional deliveries. However, the remedy of specific performance may be unenforceable due to Article 28.[293] Where the goods are deficient in quality or quantity, the buyer can require that the seller cure (by repairs or additional deliveries) as long as such a request is not "unreasonable" - in light of all the circumstances (Article 46(3) sentence 1).[294] When repairs in a particular case would be "unreasonable" presumably where it would be disproportionately expensive for the seller - the buyer is left only with a claim for damages or price reduction.[295] The demand for repairs also requires notice, which must be given either in conjunction with the notice of defects or within a reasonable time thereafter (Article 46(3) sentence 2).

The right to require delivery of substitute goods when the delivered goods do not conform to the contract is subject to the condition that the non-conformity must represent a "fundamental breach of contract" (Article 46(2)).[296] This contrasts both with § 480 of the German Civil Code and ULIS Article 42(1) (c). Where the non-conformity does not amount to a fundamental breach and where repairs are not feasible under Article 46(3) - which is frequently the case with raw materials and other fungible commodities - the buyer must keep the nonconforming goods and recoup his losses through a damage action or a reduction in price. The Federal Republic of Germany's proposal to facilitate claims for substitute goods was unsuccessful.[297] The decisive consideration was probably that the delivery of substitute goods practically always requires the return of the defective goods and, therefore, is as serious to the seller as an avoidance of the contract. [298]

The difference between a "fundamental" and a "non-fundamental" breach in connection with the delivery of non-conforming goods will thus be the decisive factor in the remedies available to the buyer. His difficulty is that he cannot, by [page 76] fixing an additional period of time for performance, clarify whether the defective performance is actually a fundamental breach.[299] On the basis of Article 25, the buyer's expectations as fixed in the contract control not only the general question, under Article 35, of whether a lack of conformity exists at all, but also the issue of how much weight should be accorded to it. The decisive factor is not only the objective damages which the buyer suffers or could suffer as a result of the nonconformity, but, above all, whether the risk of this particular non-conformity was considered so serious by the parties that its existence would eliminate the buyer's interest in the performance of the contract concerning these goods. For example, if the buyer has unmistakably insisted on, but not received, chips suitable for the tropics, then the breach is fundamental and the buyer retains the right to demand substitute goods, even if the buyer can otherwise use the non-conforming transistors without great loss.

The buyer can always fix an additional period of time for performance, and thereby offer the seller an opportunity to cure any lack of conformity (Article 47(1)). Such an extension, however, usually means only that the buyer's remedies are restricted during the additional time period, unless the seller has already declared that he will not (correctly) perform his obligations by the new deadline (Article 47(2)). The only right available to the buyer in any case is his right to claim damages caused by the delay of performance (Article 47(2) sentence 2). As in § 326(1) sentence 1 of the German Civil Code, the extension of time for performance is of additional consequence only if the seller does not deliver at all. After the additional (and reasonable) period of time has expired, or if the seller has already refused to perform, the buyer can avoid the contract (Article 49(l)(b)).[300] Of course, delay by the seller during the additional time period can turn his default into a fundamental breach, but this is the result of the passing of time and not of the fixing of an additional period.[301] [page 77]

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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.

293. See supra at III.F. However, Article 28 does not justify the rejection of a claim for repair merely because it is unknown as a remedy under domestic law.

294. This addition originated in a joint motion by Finland, the F.R.G., Norway, and Sweden (A/Conf. 97/C.1/L.199= O.R. 112). The claim for repair includes delivery of the necessary spare parts. The qualification that the repair must be "reasonable" under the given circumstances does not apply when additional deliveries are needed to cure deficiencies in quantity.

295. In part, however, the claim for repair was rejected only in cases in which technical difficulties would arise in the repair, but not where there would simply be a disproportionate cost. See A/Conf. 97/C.1/SR.19 at 304 (= O.R. 335 et seq.) (discussion). The final version, which permits consideration of the circumstances, however, also takes cost into account and, to this extent, corresponds to the German Civil Code § 633(2) sentence 2.

296. See 1978 Draft Convention Article 42(2). As with avoidance, the prerequisite is that the buyer must be able to return the goods. See Article 82 and the commentary thereon, infra at VI.J.1.

297. See A/Conf. 97/C.1/SR.19 at § 47 (= O.R. 337).

298. See A/Conf. 97/C.1/SR.19 at 8 § 53 (= O.R. 337) (French position). For the similarity to the avoidance of contract, see also Article 82.

299. See Article 49(1)(b) and the commentary thereon, infra at VI.B.6.(c).

300. See infra at VI.B.6.(c).

301. Accord, Naón §§ 3, 10 at 19; but cf. Beinert at 89.

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