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If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.
1. Art. 37 should be read with its companion article, article 34, conferring a right to cure in the case of a tender of defective documents. In both cases, the right to cure only arises, (i) where the tender on delivery is made before the date for delivery, (ii) the cure is effected before that date, and (iii) where the exercise of the right to cure does not cause the buyer unreasonable inconvenience or expense.
2. The Anglo-Canadian common law recognizes a similar right to cure and it is given statutory effect in UCC 2-508(1). There may be a difference in that the common law right to cure has not been restricted in the case law, as it is qualified in art. 37, to cases where the buyer will not be prejudiced by the seller's exercise or the right. I doubt myself that the distinction exists and I would expect Canadian courts to reach the same result if substantial prejudice to the buyer can be shown [see e.g., Borrowman, Phillips & Co. v. Free & Hollis (1878) 4 QBD 500].
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