Concerning the right to obtain performance where impediments exist that are beyond the control of the debtor, compare note 13.6. of Article 79; where they are caused by the creditor under Article 80.
[2] The implementation of the right to obtain performance by way of the courts is subject to the prerequisites of
Article 28. The enforcement of the taking delivery of the goods and the performance of the other obligations is not
only complicated under common law, but procedurally, tactically and above all in regard to enforceability also under
continental European laws.
Under common law, the right to payment of the price can only be ascertained under restrictive conditions, and its
recoverability often involves problems when the buyer has not yet taken delivery of the goods (Honnold, 355 fol).
When the buyer neither pays nor takes delivery of the goods, the seller will, just to mention the most important
options, do the following (Honnold, 358 fol; Sevón/Dubrovnik, 221 fol): Where he is still in possession of the goods
he may, to the extent that the relevant conditions are given, resell them by way of self-help or emergency sale and
require the buyer to pay the costs and damages (lower sales price) (Articles 85, 87 and above all Article 88; Article
74 fol). He can also, without setting a Nachfrist -- however, a Nachfrist is more effective so as not to have to prove
the [page 235] fundamentality of the breach of contract -- make the contract void (Article 63 fol) and claim damages,
typically after a substitute sale.
Where a possible suit would have to be filed not in a common law country, the seller could concentrate from the
beginning on the recovery of the sales price. Pursuant to Article 80, the non-taking delivery of the goods would not
be an obstacle for it. But this is the way which the seller will generally choose when the buyer has already taken
delivery. Avoidance of the contract with its further consequences may be chosen only when it might lead to the
recovery of the goods and the goods are wanted.
[3] [remedies that may be inconsistent]
[3.1] In the event of an avoidance of contract, the right to obtain performance becomes irrelevant (Article 64). The
specification obligation is extinguished when the seller makes the specification himself (Article 65). This provision
does apply, however, also when rights are given and exercised under the contract which are inconsistent with the
right to obtain performance or right to termination.
[3.2] On the other hand, the exercise of the right to obtain performance does not exclude transition to other rights
which are also inconsistent with it (as explained also in note 3.1.) when the right to require performance does not
lead to the intended result (Knapp/BB, 454 fol).
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Pace Law School
Institute of International Commercial Law - Last updated September 25, 2002
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