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Legislative history of CISG article 49: Match-up with 1978 Draft to assess relevance of Secretariat Commentary
1978 Draft article 45 CISG article 49 (1)The buyer may declare the contract (1)The buyer may declare the contract avoided: avoided: (a)if the failure by the seller to (a)if the failure of the seller to perform any of his obligations perform any of his obligations under the contract and this under the contract or this Convention amounts to a Convention amounts to a fundamental breach of contract; or fundamental breach of contract; or (b)if the seller has not delivered the (b)in case of non-delivery, if the seller goods within the additional does not deliver the goods within period of time fixed by the buyer the additional period of time fixed in accordance with paragraph (1) by the buyer in accordance with of article 43 or has declared that paragraph (1) of article 47 or he will not deliver within the declares that he will not deliver period so fixed. within the period so fixed. (2)However, in cases where the seller (2)However, in cases where the seller has made delivery, the buyer loses has delivered the goods, the buyer his right to declare the contract loses the right to declare the contract avoided unless he has done so avoided unless he does so: within a reasonable time; (a)in respect of late delivery, after (a)in respect of late delivery, he has become aware that within a reasonable time after delivery has been made; or he has become aware that delivery has been made; (b)in respect of any breach other than late delivery, after he knew (b)in respect of any breach other or ought to have known of such than late delivery, within a breach, or after the expiration reasonable time; (i) after he knew of any additional period of time or ought to have known of the fixed by the buyer in breach; (ii) after the expiration of accordance with paragraph (1) any additional period of time fixed of article 43, or after the seller by the buyer in accordance with has declared that he will not paragraph (1) of article 47, or perform his obligations within after the seller has declared that such an additional period. 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.
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.
To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG