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Article 46

(1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.

(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

(3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

COMMENT

1. Art. 46 is concerned with the buyer's remedy of specific performance but will have only limited applicability in common law jurisdictions. This is because art. 28 provides that a court is not bound to grant judgment for specific performance unless it "would" do so in respect of similar contracts of sale not governed by the convention. In the common law Provinces the remedy of specific performance is governed by OSGA 50 and its counterparts in the other Provinces. As a result the remedy is only available in a contract for the sale of "specific or ascertained" goods (In re Wait (1927) 1 Ch. 606 (C.A.)), and even then it is discretionary. It is well settled that the remedy will not be granted where damages would provide adequate compensation. See further OLRC Sales Report, ch. 17(B).

2. In view of the fact that an order for specific performance under paragraph (1) is only likely to be available in a common law Province in exceptional circumstances, it is even less likely that an order will be granted under paragraphs (2) and (3).

3. The unfamiliar style of art. 46 is explained in the [Secretariat] Commentary (p. 113) on the ground that "in many legal systems that a legislative text on the law of sales governs the rights and obligations between the parties and does not consist of directives addressed to a tribunal." The [Secretariat] Commentary adds that while the common law drafting style is different, no difference in result is intended because of the style adopted in art. 46.

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