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CISG number

Art. 72

428. The text of article 49, as adopted by the Working Group on the International Sale of Goods, is as follows:

429. Four representatives indicated that they were of the view that this article should be deleted as it enabled one party to declare the contract avoided unilaterally after that party had concluded that it was "clear" that the other party would commit a fundamental breach. It was stated that it was wrong in principle to allow one party to terminate the contractual relationship unilaterally. This same objection had been raised in relation to other articles of this Convention.

430. A suggestion was also made that article 49 might be merged with article 47. However, the Commission was of the view that article 49 should remain separate from article 47 because it covered, in addition to those cases contemplated by article 47, cases in which it was clear that one party would commit a fundamental breach because of his express refusal to perform or because it was impossible for him to perform.

Decision

431. The Committee concludes that no change in substance is called for in respect of article 49. The Committee recommends that the order of article 48 (now article 50) and article 49 should be reversed. It therefore recommends that the Commission should adopt the following text of article 49:

"Article 49

"If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach, the other party may declare the contract avoided." [page 55]

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