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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 51

(1) If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46 to 50 apply in respect of the part which is missing or which does not conform.

(2) The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract.

COMMENT

1. Art. 51 deals with the buyer's remedies where the seller has only delivered part of the goods or where only part of the goods delivered are conforming. See also infra, art. 72. The corresponding provincial provisions will be found in OSGA 12(3), 29, and 30.

2. There are several important differences between the CISG provisions and the common law treatment of the same topic. First, art. 51 does not distinguish, as do the provincial Acts, between a non-severable contract and a contract for the sale of goods by instalments. Secondly, under art. 51(1) the buyer has the same remedies with respect to the undelivered or non-conforming goods as he has with respect to the entire quantity of goods; under the provincial Acts this is true only (i) where there is an instalment contract, or (ii) where the provisions of OSGA 29 apply. In other cases the rule is (OSGA s.12(3)) that the buyer cannot accept part of the goods and reject the rest. He must accept all or reject all. Thirdly, under art. 51(2) the buyer is only entitled to avoid the contract in its entirety if the seller's breach amounts to a fundamental breach of the whole contract. The common law rule is the same in the case of instalment contracts (OSGA s.30) but different in the case of indivisible contracts. In the latter case, the buyer has a right to reject the whole consignment and to cancel the contract (OSGA s.29) unless the non-conformity is so minor that it will be disregarded under the de minimis rule. This result flows from the a priori characterization of the seller's obligation under sections 13-16 and 29 of the Ontario Act and its provincial counterparts.

3. The CISG approach in art. 51 follows logically from its linkage of the right of avoidance to the gravity of the breach. If one accepts this as a sound approach (as I do) then, with one reservation, art. 51 is also unobjectionable. Read literally, art. 51(1) suggest that the non-conforming goods may be subject to the remedy of avoidance regardless of the commercial viability of the rejected goods. UCC 2-601, by way of contrast, provides that only a "commercial unit" may be accepted or rejected by the buyer. Presumably the Convention did not intend a different result.

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