Obligations of the Seller (Articles 45-52) - Chapter 6 - Practitioner's Guide to the CISG - Second Edition
Originally from: The Practitioner’s Guide to the CISG - Second Edition
§ 6.1 Overview
The obligations of the seller and the buyer are treated in two different chapters, even though some of the remedies and obligations are the same. However, it is useful to deal with the obligations of the parties separately. The obligations of the seller can be divided into three categories. First, the delivery of the goods imposes obligations that are dealt with in Articles 30 to 34. The second obligation of the seller is to deliver conforming goods. Articles 35 to 44 govern this issue together with third-party claims. The final section (Articles 45-52) discusses the remedies available to the aggrieved buyer in cases of a breach of contract.
Article 45 in essence describes the “roadmap”—that is, it is the logical staring point—to remedies for breaches of contract by seller: The “rights” are provided in Article 46(1) (relating to buyer’s right to require performance, Article 46(2) (relating to right to delivery of substitute goods), Article 46(3) (relating to right to require repair of non-conforming goods), Article 47 (relating to Buyer’s right to fix additional period for performance), Article 48 (relating to the conditions for seller’s exercise of right to cure), Article 49 (relating to buyer’s right to avoid the contract), Article 50 (relating to price reduction in the context of delivery of non-conforming goods), Article 51 (relating to partial performance) and Article 52 (relating to early deliveries and deliveries in excess).
Because the remedial schemes are different, business counsel must understand that, generally, only under the principle of fundamental breach may a contract be terminated. A breach of contract that is not fundamental does not terminate the legal relationship between the buyer and seller. Additionally, subject to Article 79, the reason for failure to perform is irrelevant.
The seller may even be able to cure a faulty performance. See Article 48. However, seller’s right to cure is subject to Article 49, which, as noted, allows the buyer to avoid the contract if the seller has committed a fundamental breach or failed to deliver even after fixing an extra time in order for the breaching party to perform the contract (“Nachfrist”) (see Article 47).