The Sale of Goods: Provisions in Common to Buyer and Seller (Articles 25-29) - Chapter 4 - Practitioner's Guide to the CISG - Second Edition
Originally from: The Practitioner’s Guide to the CISG - Second Edition
§ 4.1 Overview
The provisions found in Articles 25-29 form the basic provisions which the buyer and the seller share in determining the nature of their remedies. They do not form a coherent picture in this overview, as they serve as individual rules for remedies and obligations which are grouped in this section of the CISG merely because they apply to the buyer and the seller equally.
Article 25 provides the common descriptor for what constitutes a fundamental breach. As evidenced by the sections on remedies for both the buyer and the seller, a fundamental breach must be established before selected remedies (avoidance, redelivery, etc.) can be exercised. Article 25 describes a fundamental breach as one which represents a substantial detriment in relation to a party’s reasonable expectations. Determining the nature of a fundamental breach is a difficult one.
Article 26 is another common provision, which requires both buyer and seller to give a notice to the other party if wishing to exercise the remedy of avoidance. Issues such as timeliness, specificity of notice and whether or not implied notice can be given, cause difficulties in the interpretation of this provision.
Article 27 is a shared mailbox rule, which applies to most—but not all—of the CISG notices in the various CISG provisions requiring communication. It sets out the simple premise whereby a properly dispatched communication travels at the recipients risk—in other words, should something occur to obstruct its delivery, it will be regarded as having been given regardless.
Article 28 is an unusual rule which limits the use of the remedy of specific performance. It is unusual in that it was tailor-made to accommodate jurisdictions which—at the drafting of the Convention —were not accustomed to the wide-spread application of such a remedy in sales, and objected to its use as a primary remedy within the CISG. It ensures that no court can be compelled to use specific performance as a remedy unless it would also do so under its own domestic rules.