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CISG number

Art. 49

290. The text of article 30 as adopted by the Working Group on the International Sale of Goods is as follows:

Subparagraph (1)(b)

291. The Committee considered a proposal that the words "if the seller has been requested to make delivery" be followed by "or to cure a lack of conformity." In support of this proposal it was stated that the buyer's right to declare the contract avoided should exist where the seller does not cure a lack of conformity when requested to do so pursuant to article 28, as well as when he does not make delivery pursuant to that article. The possibility that the buyer might attempt to abuse this right by insisting that the seller's failure to cure a minor lack of conformity in the goods gave grounds to avoid the contract could be prevented by adding a provision similar to article 33(2) of ULIS that "no difference in quantity, lack of part of the goods or absence of any quality or characteristic shall be taken into consideration where it is not material."

292. However, under another view the proposal might give unwarranted power to a buyer to avoid the contract for a lack of conformity in the goods which, although not minimal, would not be very serious.

293. The Committee, after deliberation, did not retain this proposal.

Subparagraph (2)(b)

294. The Committee considered a proposal that article 30(2)(b) should apply also to the cases envisaged by articles 29 paragraphs (2) and (3). In other words, if the seller had made delivery, the buyer would lose his right to declare the contract avoided if he did not do so within a reasonable time after the expiration of any additional period of time requested by the seller for performance pursuant to those articles.

295. The Committee did not retain this proposal. It was considered inappropriate to include a reference to article 29 in article 30(2)(b) since the period in article 29 is set by the seller who is in breach. The fact that the period which he has set had expired should not affect the rights of the innocent buyer.

Unilateral declarations of avoidance

296. The view was expressed by several representatives that article 30 improperly granted to the buyer the power to declare the contract avoided unilaterally and without the intervention of a court or tribunal. It was noted that article 30 was but the first of several articles which granted the injured party the power to act unilaterally. Although those representatives did not oppose at this stage the adoption of article 30, or of the other articles which granted to the injured party a similar power, they requested that their views be noted in this report.

Decision

297. The Committee concludes that no change in substance is called for in respect of this article. It therefore recommends that the Commission should adopt the following text, now renumbered as article 31.

"Article 31

"(1) The buyer may declare the contract avoided:
"(a) If the failure by the seller to perform any of his obligations under the contract and this Convention amounts to a fundamental breach of contract; or
"(b) If the seller has not delivered the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 29 or has declared that he will not deliver within the period so fixed.
"(2) However, in cases where the seller has made delivery, the buyer loses his right to declare the contract avoided unless he has done so within a reasonable time:
"(a) In respect of late delivery, after he has become aware that delivery has been made; or
"(b) In respect of any breach other than late delivery, after he knew or ought to have known of such breach, or " after the expiration of any additional period of time fixed " by the buyer in accordance with paragraph (1) of article 29, or after the seller has declared that he will not perform his obligations within such an additional period." [page 46]

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Proposed Article 41 bis

359. The Committee considered a proposal that a new article 41 bis be added to the Convention. The text of this proposed article is as follows:

360. Support for this proposal was based on the fact that in contracts for the sale of goods by specification, changes in circumstances may make acceptance of those goods financially burdensome for the buyer. From the seller's point of view, the market value of specialized goods made to order could frequently be less than their cost of production. It therefore accorded with equity to enable the buyer to terminate the contract before the manufacture was complete, provided that this did not cause the seller unreasonable inconvenience. In addition, the buyer must pay any damages to the seller, including his loss of profits, resulting from the termination.

361. Although there was sympathy for the objectives of the proposed article 41 bis, it was generally considered that the proposal caused more difficulties than it solved. In particular, the concept that the buyer would be liable for all damages including loss of profits was criticized as was the idea of attempting to apply articles 56 and 57 to a termination situation. Under one view, the proper approach would be to require the buyer to pay the purchase price less any savings caused by the termination of production. It was also suggested that the place for such a rule would be in article 45, or possibly in article 59 on mitigation.

Decision

362. The Committee, after deliberation, decided not to retain the proposal to introduce a new article 41 bis. [page 51]

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