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Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods

Professor Jacob S. Ziegel, University of Toronto
July 1981

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Article 45

(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:

(a) exercise the rights provided in articles 46 to 52;

(b) claim damages as provided in articles 74 to 77.

(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.

(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract.

COMMENT

1. The provincial Acts contain no index section of buyer's remedies for breach of contract by the seller, but the remedies enumerated in art. 45 correspond to those known under our law, viz., specific performance, avoidance (cancellation) of the contract, and damages. However, there are substantial differences in detail between the buyer's remedies under the convention and his remedies in the common law provinces.

2. Art. 45(2) rejects the notion that the buyer is forced to elect between claiming damages and exercising the other remedies conferred on him under the convention, viz. specific performance and avoidance. The common law position is the same and, in particular, it is basic law that a buyer who rejects non-conforming goods or cancels the contract on some other ground is not thereby deprived of his entitlement to damages.

3. Art 45(3) is apparently aimed at legal systems like the French which allow the courts some discretion whether or not to grant rescission of a contract of sale for breach. See [Secretariat] Commentary to (former) article 43, p. 116. No such discretion is conferred under our law and art. 45(3) therefore effects no change so far as the common law Provinces are concerned.

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Pace Law School Institute of International Commercial Law - Last updated April 23, 1999
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