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GUIDE TO CISG ARTICLE 26

Secretariat Commentary (closest counterpart to an Official Commentary)


Guide to the use of this commentary

The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 24 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequences of the Official Text, e.g., article 24 [draft counterpart of CISG article 26].

To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a validation of citations to this Secretariat Commentary. This match-up indicates that article 24 of the 1978 Draft and CISG article 26 are identical.


Text of the Secretariat Commentary on article 24 of the 1978 Draft
[draft counterpart of CISG article 26]   [Notice of avoidance]

PRIOR UNIFORM LAW

None.

COMMENTARY

1. Avoidance of the contract by one party may have serious consequences for the other party. He may need to take immediate action to minimize the consequences of the avoidance such as to cease manufacturing, packing or shipping the goods or, if the goods have already been delivered, to retake possession and arrange to dispose of them.

2. For this reason article 24 [draft counterpart of CISG article 26] provides that a declaration of avoidance is effective only if made by notice to the other party. It follows that the contract is avoided at the time notice of the declaration of avoidance [see footnote 1] is given to the other party.

["The general common law rules are (a) that the party in breach cannot unilaterally terminate the agreement without the consent of the other party ... and (b) that a party who is entitled to elect among two or more remedies must communicate his election to the other party. In other words, the common law, like CISG, does not recognize a doctrine of ipso facto avoidance. There may be circumstances when, at common law, the aggrieved party may have no option but to treat the contract as avoided: for example where the other party has become bankrupt or, in the case of a sale of specific goods, the goods have been destroyed owing to the seller's fault. In such cases the aggrieved party would not be electing a remedy and a notice requirement would make little sense. It is not clear whether CISG envisages a different result, i.e., whether a declaration of avoidance is always necessary. Cf. Articles 49, 64. Even if the answer is yes, the difference would not appear to be of great practical importance given the fact that no formal requisites are prescribed for the giving of a notice of avoidance. See Article 27." Jacob Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods (July 1981), pp. 72-73.]

3. The Convention does not require, as do some legal systems, that an advance notice be given of the intention to declare the contract avoided. This Convention requires only one notice, the notice of the declaration of avoidance [see footnote 2].

4. The notice can be oral or written and can be transmitted by any means. If the means chosen are appropriate in the circumstances, article 25 [draft counterpart of CISG article 27] provides that a delay or error in the transaction of the notice does not impair the legal effect of the notice (OFFICIAL RECORDS, p. 27).

[The declaration "does not have to reach the other party in order to be effective (Article 26, in conjunction with Article 27)", as long as the notice is "sent by a means of communication appropriate to the circumstances (Article 27)." Peter Schlechtriem, "Uniform Sales Law: The UN-Convention on Contracts for the International Sale of Goods," Vienna: Manz (1986), p. 61.]

[By virtue of the Convention's "informality principle,"* "[t]he notice can be oral or written and can be transmitted by any means."** However, this informality principle does not apply if the contract, usages or practices provide otherwise (Articles 6 and 9), nor does it apply to the content of the notice. Enderlein & Maskow state: "[The] wording [of the avoidance notice] must be unequivocal. In the case of doubt it should ... be interpreted as a mere threat of avoidance."*** Honnold states: "A buyer's declaration of avoidance, to be effective under Article 26, must inform the seller that the buyer will not accept or keep the goods. ... Conversely, a seller's declaration of avoidance must inform the buyer that the seller will not deliver the goods or, if the goods have been delivered, that the seller demands their return."****]

*J. Rajksi, Bianca-Bonell Commentary, Giuffrè (1987), p. 126. **Secretariat Commentary, OFFICIAL RECORDS, p. 27, para. 4. ***Fritz Enderlein & Dietrich Maskow, "International Sales Law", Oceana (1992), p. 243. ****John O. Honnold, "Uniform Law for International Sales under the 1980 United Nations Convention", 2d ed., Kluwer Law International (1991), pp. 263-264.


FOOTNOTES

1. Articles 45, 60, 63 and 63 [draft counterpart of CISG articles 49, 64, 72 and 73] provide for a declaration of avoidance of a contract under appropriate circumstances.

2. However, a party who declares the contract avoided pursuant to article 45(1)(b) and article 60(1)(b) [draft counterpart of CISG article 49(1)(b) or article 64(1)(b)] must have previously fixed an additional period of time of reasonable length for performance by the other party under article 43(a)(b) or article 59(1)(b) [draft counterpart of CISG article 47(1) or article 63(1)]. In such a case the party who declares the contract avoided must necessarily send two communications to the other party.


Pace Law School Institute of International Commercial Law - Last updated August 29, 2006
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