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Buyer’s notice fixing additional final period for performance: Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Articles 47 and 49(1)(b) of the CISG

Zeller, B. (2009) Buyer’s notice fixing additional final period for performance: Remarks on the manner in which the Principles of European Contract Law may be used to interpret or supplement Articles 47 and 49(1)(b) of the CISG. In: Felemegas, John, (ed.) An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law. Cambridge University Press, pp. 378-381.

Link to Published Version: http://dx.doi.org/10.1017/CBO9780511511417.060
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Abstract

CISG Articles 47 and 49(1)(b) are part of the regime of remedies of breach of contract within the CISG, which in general can be divided into two categories: remedies where the contract can be terminated or avoided, such as fundamental breach, and remedies where the contract is still in force, such as damages.

Articles 47 and 49(1)(b) are provisions that span both remedies through the principle of the Nachfrist, which is the granting of additional time for the delivery of goods. The principle has been mainly borrowed from German domestic law, as well as from the French procedure of mise en demeure. However, there are significant differences between the German and French treatment of Nachfrist and the one accorded to in the CISG. This is a good time to remind ourselves of the mandate of Article 7(1) where uniformity of application demands the autonomous interpretation of the CISG; that is, without relying on principles founded in domestic law. In other words, German and French treatment of Nachfrist and mise en demeure must be ignored and cannot be used to explain the principle within the CISG, despite significant similarities in doctrine and jurisprudence.

Common law attorneys may find the concept of Nachfrist foreign as this term has no direct common law counterpart. In brief, the various Sale of Goods Acts do not rely on the principle of “fundamental breach”; they rather approach avoidance of contract through the breach of contractual terms; that is, breach of a major term or a condition.

Publication Type: Book Chapter
Murdoch Affiliation: School of Law
Publisher: Cambridge University Press
Copyright: The Author
URI: http://researchrepository.murdoch.edu.au/id/eprint/26741
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