Additional Period (Nachfrist) for Late Performance - Chapter 3 - 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.
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The reason behind the flexible remedy of Nachfrist is that the CISG, as one of its principles, attempts to keep the contract afoot as long as there is a possibility of performing contractual obligations. This is in line with the attempt to overcome some of the problems of distance, expense and time in having an international contract terminated where, operating under another general principle of the CISG, namely good faith, remedial action could have been possible, resulting in a win-win situation.
§3.1 General
“Various multilateral/international organizations have developed legal standards applicable to international sales contracts which have incorporated (or purported to incorporate) the concept of Nachfrist.” Among such standards are the CISG, UNIDROIT Principles, and PECL.
Briefly speaking, the Nachfrist procedure allows an additional period for performance by the party who did not perform at the date due under the contract. It is a companion to the remedy of specific performance (for details, see Chapter 2), which grants the aggrieved party the right to require performance of the contract by the nonperforming party and which anticipates the aid of a court or arbitral tribunal in enforcing that right. If one party delays performing the
Section
§3.1 General
§3.2 Nachfrist under CISG, UNIDROIT Principles, and PECL
3.2.1 A remedy of discretionary nature as opposed to domestic
systems’ approach
3.2.2 A remedy designed to remove a double uncertainty
3.2.3 A remedy especially useful in eliminating uncertainties
concerning the fundamental nature of a delay
3.2.4 A remedy useful in many other cases
§3.3 Nachfrist Used to Pave the Way for Termination
3.3.1 Making possible a termination for non-fundamental breach
but limited to the breach of basic obligations
3.3.2 Nachfrist as a prerequisite for avoidance only in the case of
non-fundamental delay
§3.4 Service of a Qualified Nachfrist Notice
3.4.1 A definite request for performance with a period fixed
3.4.2 A period of reasonable length
(a) Scope of application of the “reasonable length”
requirement
(b) Definition of the “reasonable length”
(c) Commencement of the “reasonable length” under the
dispatch rule
3.4.3 Termination in case of a period not of reasonable length
§3.5 Effects Following the Service
3.5.1 Remedies suspended during the additional period
3.5.2 Right to damages retained
3.5.3 Early avoidance in the case of a final and definite rejecting
notice
3.5.4 Avoidance upon the expiration of a Nachfrist
§3.6 Concluding Remarks