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Reproduced with the permission of Oceana Publications

(1) If the seller delivers only a part of the goods [1] or if only a part of the goods delivered is in conformity with the contract [2], articles 46 to 50 [3] apply in respect of the part which is missing or which does not conform.

(2) The buyer may declare the contract avoided in its entirety [4] only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract [5].

[COMMENTARY]

[1] If the seller delivers only part of the goods, the result may be a partial delay or non-conformity. In the latter case the documents indicate a higher than delivered quantity, and a notice under Article 39 need only to be given (c. also Article 35, note 3).

[2] As to conformity compare Article 35.

[3] It seems logical that the right to performance (Article 46) and the setting of a Nachfrist (Article 47), and a cure of a failure (Article 48) or a reduction of the price (Article 50) can only refer to the missing or non-conforming part of the goods. It is significant, however, that the right to avoid a contract (Article 49) as a matter of principle only relates to that part and not, as might be deduced from the wording of Article 49, to the contract in its entirety (Honnold, 329).

[4] Even if the seller has not performed within the Nachfrist set by the buyer, the latter may declare the contract avoided only in regard to the missing or non-conforming part (O.R., 44). Only if the partial non-delivery or the non-conforming performance constitutes a fundamental breach of contract (c. Article 25) can the buyer avoid the entire contract. Should the partial non-delivery refer to an instalment contract, the contract may be avoided as prescribed under Article 73.

[5] Concerning a fundamental breach of contract, compare Article 25. The buyer is not forced to sort out the non-conforming goods. The question is whether the non-conformity of part of the goods interferes with the use or salability of the remainder (Honnold, 330). [page 199]

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