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(1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided.
(2) If time allows, the party intending to declare the contract avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance.
(3) The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations.
1. It appears from the [Secretariat] Commentary to former art. 63 (now art. 72) that art. 72 is directed both to cases of anticipatory repudiation as understood by a common law lawyer and to cases of frustration where one of the parties will be unable to perform because of events beyond his control e.g., the outbreak of hostilities or destruction of the seller's plant by fire. In the latter type of case the common law would say that, because of the supervening circumstances, the non-performing party is excused from performance and hence has not committed any breach. Art. 72 apparently adopts the approach of some civilian systems that the obligation to perform is strict but that the non-performing party will be excused from liability for his failure to perform where there has been a frustrating event. Cf. [Secretariat] Commentary p. 160, and the comment, infra, to art. 79.
2. Subject to these observations, the provincial common law is the same as art. 72 in entitling a party to cancel the contract where the other party refuses to proceed with it. However, the provincial law has no counterpart to the requirement of art. 72(2). The requirement was added at Vienna (again in an effort to meet the concerns of some delegates) and seems a little anomalous.
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