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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 47

(1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations.

(2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance.

COMMENT

1. The purpose of art. 47(1) is to enable the buyer to make time of the essence, where it is not clear from the contract itself or the surrounding circumstances whether failure to make timely performance amounts to a fundamental breach, by allowing him to call on the seller after breach to perform within a reasonable period of time. The consequences of the seller's failure to comply with such a demand are spelled out in art. 49(1)(b).

2. Art. 47(1) is based on the German concept of "Nachfrist" but it has a well-known counterpart in equity in contracts for the sale of land. [See e.g., Stickney v. Keeble (1915) A.C. 386; Cheshire & Fifoot, The Law of Contract, 9th ed., pp. 531-32.]

3. There is some dissonance between art. 47(2) and 49(1)(b). The former purports to apply to any breach of the seller's obligations; the latter is restricted to non-delivery of the goods. That being so, it is not clear what sanctions follow from the seller's failure to comply with a demand not involving delivery of the goods that would not follow without a demand.

4. Art. 47(2) probably goes beyond the common law in one respect. At common law an extension of time granted by the buyer, if not supported by consideration, is only binding on the buyer to the extent that the seller has relied on the extension. Subject to this consideration, the extension may be retracted by the buyer at any time if he gives reasonable notice of his intention. [Cf. Chas. Rickards Ltd. v. Oppenheim (1950) 1 K.B. 616 (C.A)].

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