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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 48

(1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention.

(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.

(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision.

(4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer.

COMMENT

1. Art. 48 confers on the seller a limited right to cure a breach after the date for delivery has elapsed. Cf. the more powerful right to cure under arts. 34 and 37, supra. The provincial Acts contain no counterpart to art. 48, but, for the reasons given below, the same results would probably be reached at common law. Art. 48 does not confer a right to cure as extensive as the right conferred under UCC 2-508(2). Contractual provisions for manufactured goods frequently confer on the seller the right to repair or replace defective goods which are not subject to the same restrictions as art. 48. For all these reasons, art. 48 appears quite unobjectionable.

2. Art. 48 must be judged against several well established common law principles: (a) that a buyer is only entitled to reject a non-conforming tender where the non-conformity amounts to breach of an essential term of the contract; (b) that, where breach of an essential term has occurred, the buyer is not obliged to give the seller an opportunity to cure the non-conformity; and (c) the buyer's duty to take reasonable steps to mitigate his damages where a breach has occurred. It follows that at common law the mitigation principle would oblige the buyer to accept an offer to cure from the seller (i) if the non-conformity does not amount to breach of an essential term, or (ii) the buyer has elected to keep the goods. In some cases, the duty to mitigate would oblige the buyer to accept an offer to cure even where the buyer has rightfully rejected the goods. Cf. R.G. McLean Ltd. v. Can. Vickers Ltd. (1971) 15 D.L.R. (3d) 15 (Ont.); Payzu Ltd. v. Saunders (1919) 2 K.B. 581.

3. Art. 48 reaches the same results as the common law where the breach is non-essential or the buyer elects not to avoid the contract. The article attaches conditions to the seller's entitlement to offer cure but these would probably also be implied at common law. The same would probably be true of the right conferred on the seller under art. 48(2) to ascertain the buyer's intentions. The common law may go further than art. 48 in obliging the buyer to accept an offer to cure even after the contract has been avoided if it is a reasonable means of mitigating his damages, but this may be doubtful in view of the general duty to mitigate damages imposed on an aggrieved party under art. 77.

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