Cure by Non-Performing Party - Chapter 5 - Remedies in International Sales
About the Author:
Chengwei Liu has practiced as a PRC lawyer in international trade and arbitration, FDI, M & A and IPO since his graduation from Renmin University of China. He has contributed to a CISG comparative review book published by Cambridge University Press and has authored over ten journal articles that have appeared in the Pace Review of the CISG, China Law & Practice, etc.
About the Editor:
Marie Stefanini Newman is the Director of the Pace University School of Law Library and an Associate Professor of Law. She also serves as Database Manager of the Pace website devoted to the United Nations Convention on Contracts for the International Sale of Goods.
Originally from Remedies in International Sales - Hardcover
Remedies in International Sales - PDF
Preview Page from Chapter 5
§5.1 General
“A sales transaction may be regarded (at the extremes) either as a duel fought with deadly weapons or as a relationship calling for cooperation and accommodation. The latter, of course, is the attitude of persons engaged in commerce.”
To give the non-performing party an opportunity to cure is obviously a reflection of this latter attitude. It is not new in international trade.3 Most national laws recognize in some form a defaulting party’s right to cure a non-performance.
A contractual party’s right to cure a non-performance under the condition that such cure does not create any — or at least any excessive — hardship for the aggrieved party, has emerged from Common Law traditions to become almost a staple of modern contract law [emphasis added], and of modern sales law in particular.
Even many of those legal systems that do not have a rule permitting cure would normally take a reasonable offer of cure into account in assessing damages.
Under the Convention, two categories of cure are available to the non-performing party: one is to make a new and conforming tender ...
Section
§5.1 General
§5.2 Competition between Cure and Avoidance
5.2.1 Overview
5.2.2 Cure in relation to fundamental breach
5.2.3 Cure available only in the absence of a declared avoidance
5.2.4 Cure generally allowed even in case of fundamental breach,
provided no avoidance declared
5.2.5 Cure not allowed in case delay amounts to a fundamental
breach, even if no avoidance declared
§5.3 Conditions for Invoking Cure
§5.4 Notice of Cure
5.4.1 Notice of the intention to cure within a specified period
5.4.2 Request for buyer’s consent
5.4.3 Receipt rule applicable to the cure notice
5.4.4 A summary
§5.5 Effects of the Notice
5.5.1 Buyer’s obligation to respond
5.5.2 Suspension of inconsistent remedies
5.5.3 Right to damages retained