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LEGISLATIVE HISTORY

Legislative history of CISG article 49: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 45

(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 43 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 43, or after the seller has declared that he will not perform his obligations within such an additional period.

  

CISG article 49

(1) The buyer may declare the contract avoided:

(a) if the failure of the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or

(b) in case of non-delivery, if the seller the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed.

(2) However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so:

(a) in respect of late delivery, within a reasonable time after he has become aware that delivery has been made;

(b) in respect of any breach other than late delivery, within a reasonable time; (i) after he knew or ought to have known of the breach; (ii) after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 47, or after the seller has declared that he will not perform his obligations within such an additional period; or (iii) after the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 48, or after the buyer has declared that he will not accept performance.


Editorial comments

Subject to two changes, CISG article 49 is substantively identical to 1978 Draft article 45. The two changes are: Subparagraph (1)(a) now commences with the phrase, "in case of non-delivery".

This phrase was added to make sure that it would be "clearly understood that subparagraph (b) was concerned only with non-delivery and not with lack of conformity. In the case of failure by the seller to deliver, the buyer could fix an additional time for delivery, stating that otherwise he would declare the contract avoided. However, the situation [is] not the same where there [is] a lack of conformity in good delivered" (Mr. ROGNLIEN (Norway) (Official Records, p.354). "The basis for this provision" is said to be "both the general tendency to curtail the remedy of avoidance of contracts, and above all, the fear that the procedure of extending the deadline for performance could be used to 'upgrade' an unimportant violation of the contract into a fundamental breach" (Schlechtriem, Uniform Sales Law: The UN Convention on Contracts for the International Sale of Goods, Manz Verlags: Vienna 1986, p. 78).

Subparagraph (2)(b)(iii) was added to conform this article to the rule recited in CISG article 48(2) (Official Records, p. 357).

Subject to the above, the Secretariat Commentary on 1978 Draft article 45 should remain relevant to the interpretation of CISG article 49.


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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