Reproduced with permission of 64 University of Pittsburgh Law Review (Winter 2003) 407-429
Christopher M. Jacobs
Contract avoidance under the United Nations Convention on Contracts for the International Sale of Goods  ("CISG" or "Convention") constitutes the most extreme remedy available to an aggrieved party in the case of a breach of contract. Accordingly, the ability to avoid a contract is subject to various requirements under the Convention. One such requirement mandates that a declaration of avoidance must be made through notice to the defaulting party.
The Convention, however, does not elaborate beyond this general provision requiring the issuance of a notice. Indeed, the Convention is silent as to whether a proper notice must be communicated explicitly or whether it can be accomplished through implicit conduct. Moreover, the Convention does not specify when a notice of avoidance becomes irrevocable, nor does it discuss if and how such notices can be withdrawn or revoked. [page 407]
The uncertainties surrounding notice to avoid have practical implications for parties to CISG contracts. It is therefore crucial that these parties possess a fundamental understanding of such notices in the event that avoidance issues come into question. In particular, an overview of the existing judicial treatment of these issues will help educate parties to CISG contracts regarding how notices of avoidance have been scrutinized in practice.
Part two of this comment addresses explicit notices of avoidance. The analysis focuses on the necessary content to be included in the notice as well as the desired form such notices should adopt. Part three examines whether notices to avoid may be made implicitly through conduct. It also discusses the consequences of engaging in conduct that can be reasonably construed as an implicit notice of avoidance. Finally, part four analyzes various approaches to the question of whether a notice to avoid may be unilaterally withdrawn or revoked after having been issued.
II. THE EXPLICIT NOTICE TO AVOID: PRACTICAL CONSIDERATIONS REGARDING SUBSTANCE AND FORM
The first step in avoiding any contract relates to the proper identification of the relevant grounds for avoidance under the Convention. After such identification, a party choosing the avoidance route must issue a declaration of avoidance by providing proper notice to the other party to the contract. Declarations of avoidance are governed by Article 26, which simply provides that "[a] declaration of avoidance of the contract is effective only if made by notice to the other party." [page 408]
A reading of the plain language of Article 26 demonstrates that the CISG does not require that the notice adopt any specific form, nor does it stipulate the content that should be included in such declarations. Regardless, parties should strive to issue declarations in a manner such that "a reasonable party in the breaching party's position [will be informed] that the contract has been avoided."
A. Substance of the Notice
As a practical matter, the notice should certainly contain the reason for the declaration of avoidance. Specifically, a buyer's declaration of avoidance should clearly indicate to the seller "that the buyer will not accept or keep the goods." Moreover, in considering whether to avoid, a buyer must be aware of any additional requirements embodied in the Convention that relate to the particular breach in question. For example, the delivery of non-conforming goods constitutes a breach that may motivate a buyer to avoid. In cases involving non- conformity, "[a]n aggrieved buyer who wishes to avoid must also take account of [Article] 39, which provides that a buyer 'loses the right to rely on the lack of conformity of the goods' unless it gives notice specifying the non- conformity." As such, where the fundamental breach relates to non-conforming goods, the substance of the buyer's notice to avoid must specifically reference the non-conformity in order to adequately meet the requirements set forth in Article 39. [page 409]
Similarly, with respect to a seller's notice of avoidance, the declaration should inform the buyer "that the seller will not deliver the goods, or, if the goods have been delivered, that the seller demands their return." In essence, Article 26 declarations must decisively communicate the aggrieved party's intention to avoid the contract.
Importantly, the mere use of the word "avoidance" in a declaration does not achieve the requisite level of decisiveness. For example, in a case relating to a contract for the sale of coal, a seller who did not receive the purchase price communicated to the buyer that he would avoid the contract if payment were not received. The court held that the threat of avoidance did not constitute a valid notice of avoidance because the condition regarding the receipt of the purchase price indicated that the seller did not consider the contract avoided. As a practical rule, therefore, parties should bear in mind that notices of avoidance under Article 26 must meet a high standard of clarity in order to be effective.
B. Form of the Notice
Because the Convention does not require a notice of avoidance to take any particular form, declarations of avoidance may be made in writing or communicated orally. [page 410]
An examination of the proper form of a notice to avoid requires consideration of the provisions of Article 27. Article 27 deals primarily with transmission risk regarding the communication, but also provides that a party may issue a notice "by means appropriate under the circumstances." Notwithstanding the absence of form requirements under Article 27, parties are better advised to issue written declarations of avoidance. In practice, a tangible writing is preferable to an oral communication (e.g., a telephone declaration) for evidentiary purposes. Schlechtriem believes that in the event of a dispute with respect to telephone declarations, the declarer bears the burden of proving that the telephone communication occurred. Indeed, several courts have agreed with this perspective.
In particular, the German LG Frankfurt held that notice-giving over the telephone is acceptable in terms of form, but identified problems relating to evidence. The court stated that if the aggrieved party cannot substantiate the call, consideration should not be given to a telephone communication unless the other party does not dispute that the call occurred. In this specific case, the other party did not dispute that the call took place; thus, the notice was deemed valid. [page 411]
In another case, the same court set forth a standard for proving that a party actually communicated a notice to the other party by telephone. According to the court, in order for a party to successfully prove that the telephone communication took place, he must establish when the aggrieved party spoke, to whom he spoke, and the substance of the conversation. Overall, it is advisable for a party to issue the notice of avoidance in writing -- whenever possible -- to more easily demonstrate that notice was truly given if a dispute later arises.
Notably, pursuant to Article 6, the contract itself may address what form and in what manner notices of avoidance must be made, in derogation of Article 27. Issues of derogation become particularly critical when standard terms relating to notice requirements are incorporated into the contract during formation.
For example, in a case involving a contract for the sale of textiles, the seller's standard sales conditions provided that complaints had to be made within eight days by registered letter. The court held that the parties implicitly derogated from the requirements of Article 27 through the standard conditions. Furthermore, a court ruled that a declaration of avoidance by a buyer under a contract for shoes was invalid because the declaration was not made in accordance with the provisions contained in the seller's general conditions that had been properly incorporated into the agreement. Specifically, the standard terms provided that the buyer could declare the contract avoided only by first sending the seller an invitation to comply with [page 412] the contract. Additionally, the contract required the buyer to wait fifteen days after sending such invitation to avoid the contract for non- compliance.
These cases illustrate that it is of great practical importance that a party be familiar with the terms of the contract before taking any remedial action. It therefore follows that if the parties have, in fact, agreed to particular forms of communication under the contract (e.g., notices must be provided by fax), then using those agreed-upon forms and procedures is certainly appropriate and will be upheld in court. If the contract allows for several means of communication, however, the sender should choose the most appropriate method under the circumstances, bearing in mind that a tangible writing is most desirable. Indeed, only when urgency is an issue should a party resort to telephone or other less tangible transmissions.
III. THE IMPLICIT NOTICE TO AVOID: DECLARATION THROUGH CONDUCT
Part II addresses those situations where an aggrieved party consciously decides to choose the remedy of avoidance and accordingly proceeds to issue an explicit notice to that effect. Such express notice, however, may not always occur in practice. Indeed, it may often happen that a party's conduct is interpreted as representing a notice to avoid, even when no express notice of avoidance is given. Because the Convention does not require notices to take any particular form, "[i]t is unclear whether notice must always be express[ed] or whether it may also be implied by conduct." Regardless, because the general concept of a "declaration" under the Convention embraces implicit notice through behavior, a party should-in theory-be able to implicitly declare a contract avoided through certain conduct. Under this view, in order for such conduct to constitute a notice of avoidance, it must satisfy the standard applied to express notices-that is, the conduct must clearly demonstrate an intention to avoid. [page 413]
Where a party actually intends to avoid the contract, permitting his conduct to stand as adequate notice may be justifiable in terms of procedural efficiency. On the other hand, a party with no intention to avoid the contract may engage in conduct that the other party construes as a notice of avoidance. Such instances illustrate the potential dangers associated with recognizing implicit notice of avoidance under the Convention.
A. Implicit Notice and Procedural Efficiency
Ziegel observes that "[t]here may be circumstances when, at common law, the aggrieved party may have no option but to treat the contract as avoided." In such situations, it would make little sense to expect a party to make a formal declaration of avoidance. The same holds true under the Convention.
This view was adopted in the Australian case of Roder Zelt-und Hallenkonstruktionen GmbH v. Rosedown Park Pty. Ltd and Another. In that case, one of the parties to the contract became insolvent, which the court held to constitute a fundamental breach under the circumstances. Rather than issuing a formal notice of avoidance, the aggrieved party filed a statement of claim against the insolvent party. The court held that the filing of the claim could be construed as a valid declaration of avoidance under Article 26 because it demonstrated that the party treated the contract as terminated.
A German court has also characterized similar conduct as implicit notice of avoidance. In that case, the delivery of a supply of iron-molybdenum did not arrive before the expiration of a properly set Nachfrist period. [page 414] Thereafter, the buyer made a substitute purchase and filed a statement of claim against the original seller. The court held that the buyer validly avoided the contract under Article 49 and, importantly, noted that "an explicit declaration of avoidance was unnecessary once the seller refused to perform its delivery obligation."
These decisions support the conclusion that in certain situations it may be impractical to require parties to formally declare an avoidance. In cases where practicality is at issue, the question of whether particular behavior will be treated as a declaration ultimately should turn on the extent to which the conduct unambiguously communicates an intention to avoid. For instance, the behavior exhibited by the aggrieved party in the above-cited German case -- a substitute purchase in conjunction with the filing of a claim -- serves as an excellent illustration of an unequivocal intention to avoid and represents an instance where a requirement of formal notice would be impractical. Courts should therefore adopt the position that the more clearly the given conduct suggests an intention to avoid, the more unnecessary it will be to require formal notice.
Nonetheless, while courts should endeavor to promote uniformity in the application and interpretation of the Convention, there is no assurance that such uniformity will always occur. As a result, no matter how unequivocal certain conduct may appear, a party seeking to avoid should ideally issue a separate declaration of avoidance rather than rely solely on conduct to communicate his intention. For example, an aggrieved party filing a statement of claim against a bankrupt party should simultaneously issue a declaration of avoidance, thereby maximizing the prospect that the avoidance will be recognized as valid. Proper express notice is the more prudent option, [page 415] for it ensures that a notice of avoidance will be deemed valid in the case of a dispute.
B. The Unintentional Notice of Avoidance
While the recognition of implicit notices of avoidance through conduct may be understandable from the standpoint of cost efficiency (e.g., eliminating transaction costs of consulting lawyers), the pitfalls connected to such an approach become apparent when a party does not truly desire to avoid the contract.
In a practical context, an aggrieved party may interact with the other party in such a manner that the aggrieved party's actions may be interpreted as an intention to avoid. For instance, a party may engage in conduct that a reasonable party in the breaching party's position may perceive as an intention to treat the contract as terminated. To illustrate, the example of filing a statement of claim in the breaching party's insolvency proceedings represents conduct that the breaching party could reasonably interpret as a clear intention to avoid. In such a situation, the breaching party would be protected under Article 8. Under these circumstances, a court would likely find that a reasonable party in the breaching party's position could not interpret the filing of a claim as anything but an intention to avoid the contract.
The aggrieved party may take actions in relation to the defaulting party, however, that are less deliberate than filing a claim. For example, a buyer may transmit a communication that references a problem with the goods or their delivery, but does not clearly indicate whether the buyer will accept the goods in spite of the cited problem. Indeed, in practice, many "close-calls" exist that can arguably be understood as either a notice to avoid or as something less than a declaration of avoidance. In these instances, an Article 8 analysis may not be able to resolve the issue. Essentially, a reasonable party's understanding of such conduct may not always be readily apparent upon application of the standards set forth in Article 8. As a result, a court [page 416] may or may not find that the given conduct is demonstrative of an intention to avoid. This uncertainty presents the principal problem related to the acknowledgement of implicit notices, and constitutes the primary basis for rejecting the concept of implied declarations of avoidance through conduct under the Convention.
1. The Concept of Fairness in Relation to Implicit Notice
The consideration of whether a notice to avoid may be communicated implicitly requires recognition of the fact that "the wording of Article 26 stems from the rejection of ipso facto avoidance." Ipso facto avoidance occurs automatically without any need to notify the breaching party. The departure from ipso facto avoidance and the inclusion of the notice requirement embodied in Article 26 is "one of the significant advances of the 1980 Convention over the 1968 Hague Convention on Sales" ("ULIS"). Under the ULIS, the breaching party could easily perform the contract in ignorance of the injured party's decision to avoid.
For example, the ULIS provided that if it were reasonably possible for an aggrieved buyer to purchase replacement goods under a contract, the buyer would not be entitled to require performance of the contract by the seller. The ULIS, however, did not require such a buyer to provide notice to the seller that a replacement purchase was being made. Rather, the contract would be "ipso facto avoided as from the time when such purchase should be effected." Consequently, a seller under such a scenario could attempt performance in ignorance of the buyer's decision to purchase other goods.
In addition, several ULIS provisions allowed an aggrieved party to either require performance or to declare the contract avoided. These particular provisions related to fundamental breaches of contract arising out of the [page 417] failure to deliver at the date fixed, the failure to deliver at the place fixed, and the failure to pay the price at the date fixed. In each instance, the aggrieved party had the duty to inform the breaching party -- within a reasonable time -- of whether he chose performance or avoidance. If the aggrieved party did not do so, however, the contract was ipso facto avoided. These examples further demonstrate how the inclusion of ipso facto avoidance in the ULIS increased the potential for a breaching party to unknowingly perform its obligations in spite of the aggrieved party's decision to avoid. If the aggrieved party simply failed to communicate its course of action within a reasonable time period-or failed to communicate at all-the breaching party was left in a state of uncertainty as to whether performance was still an option or whether the contract was terminated.
Therefore, the principal reason the Drafters of the Convention eliminated ipso facto avoidance related to "the need to avoid uncertainty as to the parties' rights and obligations in the event of a breach of contract." As such, the Drafters' decision to exclude the mechanism of ipso facto avoidance was based on the concept of fairness. It functions as a clear example of an attempt to better protect the rights of the breaching party in the avoidance context.
Allowing conduct to serve as a valid notice of avoidance, however, may ignore the Drafters' intent concerning Article 26 insofar as the recognition of implicit notice creates uncertainty regarding the aggrieved party's rights. Just as a breaching party could perform in ignorance under the ULIS, an aggrieved party under the CISG could easily operate under the belief that the contract is still effective. Specifically, the aggrieved party could continue performance in ignorance of the breaching party's understanding that the contract is terminated. In essence, permitting notice of avoidance through conduct may operate to produce a problem similar to that which existed under the ULIS and which the Drafters of the CISG sought to ameliorate.
Overall, there may be circumstances where the recognition of implicit avoidance would run contrary to the notions of fairness embodied in the Convention, specifically with respect to the intent behind Article 26. Therefore, a policy favoring avoidance only if that course is known to both [page 418] parties may serve to adequately protect the parties' rights in the case of a breach of contract.
Such a policy would address the problems associated with notice through conduct since it would require the breaching party to communicate to the aggrieved party its understanding that notice of avoidance has been issued. As a result, any uncertainty regarding the parties' intentions would be eliminated, and the concept of fairness embraced by Article 26 would be preserved.
2. Judicial Treatment of Implicit Notice
Regardless of whether or not the notion of implicit avoidance is conceptually unsound in terms of fairness, courts have, to a certain degree, acknowledged the validity of implicit notices under the Convention. Therefore, the dilemmas concerning the misperception of a given type of conduct are real. Indeed, parties should be aware of how courts have treated the concept of implicit notice through certain types of conduct in order to better protect themselves from mistakenly communicating an intention to avoid. Essentially, an injured party to a CISG contract should be wary of what not to do with respect to the other party in order to prevent an unintentional avoidance. The existing judicial treatment of the issue offers some guidelines.
First, it is not uncommon for an aggrieved buyer to return to the seller a portion of the goods that are deemed defective in some way. Such was the situation in a German case involving a contract for the sale of 120 pairs of shoes. The buyer sent 100 pairs back, promising to pay for 20 pairs that had been sold. The court held that if implicit notice were possible under the Convention, the buyer's conduct did not amount to a declaration of avoidance because it had promised payment of the goods sold, and such did not provide a clear intention to avoid.
Although the aggrieved party in this case received a favorable outcome (i.e., the court did not regard the buyer's conduct as a notice to avoid), discussion of the court's decision is nonetheless relevant because the analysis [page 419] of the buyer's actions attracted strong criticism. According to Karollus, the return of the goods and the demand for credit of those goods demonstrated that the buyer did not want any sort of substitute delivery. He posited that the court should have construed the buyer's actions as a partial avoidance of the contract pursuant to Article 51(1).
That a court interpreted such conduct as non-avoidance and a commentator reached an opposite conclusion regarding the very same conduct exemplifies the nebulous nature of the concept of implicit notice. Consequently, parties should understand that divergent views exist regarding the return of goods before deciding how to address such situations.
Moreover, it may often happen in practice that a buyer transmits a communication that essentially places defective goods -- or a portion thereof -- at the seller's disposal. Several courts have ruled that these types of communications rise to the level of implicit notices to avoid. For example, in a case involving a contract for stainless wire, the buyer notified the seller that a certain quantity of the goods could not be used and placed that portion of the goods at the disposal of the seller. The court found that the buyer's communication impliedly declared the contract avoided.
Similarly, in a case regarding a question of non-conformity of mussels, the buyer communicated the non-conformity to the seller, and requested that the seller take back the goods. The court held that the communication manifested a clear intention to avoid the contract, thereby serving as valid notice under Article 26.
Given these rulings, parties should recognize the need to exercise caution with respect to their communications relative to defective or non-conforming goods. If a statement expresses that the breaching party should take back the goods, a strong possibility exists that a court will designate such a communication as an implicit notice of avoidance.
Specifically, these cases demonstrate that a court will likely distinguish words from other types of conduct, and will be inclined to hold that a notice [page 420] of avoidance has been issued in instances where the aggrieved party transmits some type of statement to the breaching party before taking action. Even if the statement does not incorporate direct language indicating that the aggrieved party intends to terminate the contract, such a statement may be considered to serve as a form of notice consistent with the requirements of Article 26. In essence, a statement that places the goods at the disposal of the seller or one that requests that the seller take back the goods are sufficient to communicate an intention to avoid and will operate as valid notice under Article 26.
More deliberate actions that are likely to be regarded as implicit notices of avoidance include those that suggest that a buyer will not accept the goods under the contract. In particular, the court in the Italian case of Italdecor S.a.s. v. Yiu's Industries (H.K.) Ltd. identified the cancellation of a purchase order as implicit notice. The buyer in that case canceled the order after the expiration of the delivery date, which the court held to be equivalent to a notice to avoid under Article 26.
Likewise, the Court of Arbitration of the International Chamber of Commerce ("ICC") found that a buyer who communicated to the seller that it would not accept a shipment of crude metal after the expiration of a properly set Nachfrist period had effectively issued a notice of avoidance. Importantly, the tribunal noted that the seller understood the communication to represent a declaration of avoidance, even though the statement did not include the term "avoidance of contract."
These cases involved decisive conduct that would not likely mislead a breaching party into performing a contract. In other words, such actions will not likely be viewed as ambiguous, and will be interpreted as exhibiting an intention to avoid. Therefore, an aggrieved party should be absolutely confident that cancellation of the order, for example, is appropriate under the circumstances.
These decisions also serve as evidence that parties should contemplate the potential consequences of engaging in drastic conduct demonstrative of a complete unwillingness to receive the goods. In particular, parties should not [page 421] employ strong language in communications that even suggests non-acceptance of the goods. Such conduct will likely amount to a notice of avoidance, and parties may not have the opportunity to change their minds once the conduct is interpreted as such.
IV. THE VALIDITY OF WITHDRAWAL OR REVOCATION OF NOTICE TO AVOID
A party may have second thoughts after issuing notice of avoidance. Such a prospect becomes especially important if implicit notices of avoidance are recognized as valid. Accordingly, an examination of whether the notice to avoid may be unilaterally withdrawn or revoked once effectively made is appropriate. For the purposes of this comment, the term "withdrawal" relates to the alteration of a notice prior to receipt by the addressee, while "revocation" refers to alteration after such receipt.
A. The Effectiveness Approach
One approach to the issue of the unilateral withdrawal or revocation of a notice to avoid holds that the irrevocability of such notice is connected to the point at which it becomes legally effective. If this view is correct, a logical starting point for analysis of the subject is the time when a notice of avoidance takes effect.
There exists clear disagreement regarding whether a notice to avoid becomes effective upon receipt by the addressee or upon dispatch by the declarer. Because notices to avoid fall under the purview of Part III of the Convention, they are subject to the provisions of Article 27. Therefore, if effectiveness is truly germane to the question of the irrevocability of notices to avoid, the proper characterization of Article 27 dictates whether the receipt or dispatch theory is controlling.[page 422]
1. Withdrawal and Revocation Under the Receipt Theory
Some authors interpret Article 27 to encompass solely the risk involved in the transmission of any notice under Part III of the Convention. If the scope of Article 27 is restricted exclusively to the issue of risk associated with a defective transmission, then a notice of avoidance under Article 26 will become effective only when received by the addressee. There are two notable approaches to the issues of withdrawal and revocation in relation to the receipt theory.
The first approach states that the declaring party remains master of the notice until receipt by the addressee. As such, the declarer's right to withdraw the notice remains intact up until the moment of receipt. Practically speaking, such withdrawal would most likely be achieved after dispatch and before receipt, where the sender transmits a different declaration that arrives before the original. When the addressee receives the notice of avoidance without prior withdrawal, however, it becomes effective and thus irrevocable.
This approach may be more applicable to express notices to avoid. It tends to ignore instances where implicit notice may be involved. In essence, this rationale assumes that the declarer is aware that a notice of avoidance has been dispatched to the addressee, which allows him to consciously withdraw it prior to receipt. It is realistic to assume, however, that parties engaging in conduct that may be construed as representing an implicit notice to avoid may be unaware as to when a party receives information regarding the conduct. As a result, in such instances, a party would lose its opportunity to withdraw the implicit notice due to ignorance of the existence of the withdrawal period. [page 423] Because the declaration becomes effective when the defaulting party receives information regarding the conduct, the implicit notice becomes irrevocable. In such a scenario, a party that does not intend to declare an avoidance would have no method by which to reverse the unwanted outcome.
The second approach is slightly different and may-to a certain degree-respond to the problems connected to the revocation of an implicit notice. This particular theory suggests that the declarer holds a similar right of withdrawal, but states that he also maintains a right to revoke the notice to avoid until the addressee agrees to the demand.
Under such thinking, an aggrieved party would be better protected from being bound to the avoidance remedy through unintentional conduct. In effect, the declarer's right to revoke would be safeguarded for a period of time. Therefore, even if the defaulting party receives information concerning the particular conduct and deems it to be a notice of avoidance, the notice would not become irrevocable until the addressee expresses his agreement.
While this approach may speak to some of the problems associated with the issues of withdrawal and revocation on a theoretical level, it nevertheless possesses a fundamental defect in a more practical context. Namely, this proposed solution does not specify how a breaching party would "agree" to avoidance. In practice, for example, it is difficult to imagine a party communicating some sort of acknowledgement that essentially states: "I agree to the avoidance of the contract." Further, it must be remembered that avoidance is a remedy that is exercised unilaterally. In essence, the Convention does not require an aggrieved party to receive consent or confirmation from the breaching party before declaring a contract avoided. Therefore, the more appropriate focus of this approach relates to a concept of "recognition" rather than "agreement." Accordingly, a notice to avoid under this theory would not become irrevocable until the recipient communicates its recognition that the aggrieved party considers the contract avoided.[page 424]
The problems linked to such a solution, however, are not resolved through a more precise description of the proposed process. This particular approach still possesses inherent deficiencies in connection to implicit notices. An unknowing declarer may only first become aware that his conduct has been understood to represent a notice to avoid upon receiving the defaulting party's expression of acknowledgment regarding the avoidance. Upon agreement (or recognition)-under this approach-the implicit notice of avoidance becomes effective and thus irrevocable, thereby leaving the declarer no opportunity for redress.
2. Withdrawal and Revocation under the Dispatch Theory
On the other hand, some hold the view that a notice of avoidance takes effect upon dispatch under Article 27. Thus, if a notice to avoid becomes irrevocable when effective, a harsh result ensues through the application of the dispatch theory with respect to the concepts of withdrawal and revocation. In essence, a notice to avoid-whether made explicitly or implicitly-becomes immediately incapable of being withdrawn or revoked when communicated.
Such a consequence is undesirable, as a party may have a reasonable basis for wishing to modify his decision after dispatching the avoidance communication. For instance, circumstances may change such that a party may realize it would be more advantageous "to keep the contract alive and obtain damages or, in the case of non- conforming goods, a price reduction."
Furthermore, the inequity associated with such a restrictive rule is amplified when applied to the concept of implicit notice. In essence, where a party's conduct is perceived to constitute a notice of avoidance, that party would have no opportunity to address the other party's misinterpretation. Instead, the party would be required to avoid the contract without any intention of doing so.
This result constitutes but one example of the problems associated with the premise that the irrevocability of a notice of avoidance is inexorably linked to the time the notice takes effect. [page 425]
B. The Reliance-Based Approach
Schlechtriem offers a view that significantly simplifies the analysis regarding the extent to which the irrevocability of a notice to avoid depends upon when the notice becomes effective. He maintains that the effectiveness of such a notice and its irrevocable nature are wholly unrelated. With respect to notices governed by Article 27, Schlechtriem asserts that "[d]istinctions drawn between transmission risk, effectiveness, and binding nature of the communication . . . are too fine to be used in the uniform implementation of an international set of rules which itself makes no distinctions." In essence, because the Drafters of the Convention did not address the relationship between the effectiveness and the irrevocability of notices in the language of Article 27, identifying such concepts within the Article's provisions is inappropriate.
Consequently, the question of irrevocability of a notice to avoid ultimately turns on whether the addressee acted in reliance upon the declaration, regardless of when the notice actually takes effect. Indeed, the general purpose behind designating certain declarations as irrevocable is to adequately ensure that an addressee can rely on the new situation that is created as a consequence of the declaration. Schlechtriem therefore argues that, in an avoidance context, so long as it is established that the addressee has not relied upon a notice to avoid, it is reasonable to allow the declarer the opportunity to revoke the declaration. Under this analysis, a notice to avoid becomes irrevocable only through confirmation of the addressee's reliance on the notice.
This theory is derived from the principles embodied in Articles 16(2)(b) and 29(2). Schlechtriem explains that:
Article 16(2)(b) expresses the principle that the addressee of a declaration who could reasonably rely on its irrevocability and has changed his position in reliance on it should [page 426] be protected against revocation. Article 29(2), second sentence, is also based on the principle that induced reliance should be protected and may preclude venire contra factum propium.
Moreover, Schlechtriem contends that in the case of a dispute regarding the addressee's reliance, the declarer should have the burden of demonstrating that the addressee did not change his position on account of the notice. Placing a burden on the declarer to demonstrate the addressee's non-reliance in the event of a dispute, however, gives rise to the great difficulties surrounding the process of "proving a negative." This policy would force an aggrieved party to somehow produce evidence establishing that the breaching party did not take certain steps to change its position in reaction to the notice. Schlechtriem does not elaborate, however, as to exactly what type of evidence would satisfy such a requirement, nor does he indicate to what extent the party would have to investigate the addressee's post-notice behavior.
Indeed, proving the non-reliance of another party constitutes a seemingly difficult endeavor. It may be more desirable, therefore, to place the burden on the breaching party to demonstrate its reliance on the notice. Such would require the breaching party to show what affirmative actions it took after receiving the notice of avoidance. Consequently, such a standard would likely function to alleviate some of the inherent evidentiary challenges associated with a non-reliance focus, which would ultimately help courts resolve disputes concerning an addressee's reliance on a notice to avoid.
Nevertheless, the "reliance-based" approach offers perhaps the most reasonable solution with regard to whether a notice to avoid can be withdrawn or revoked. With respect to withdrawal, this approach supports the inference that a party is the master of his notice to avoid until the notice reaches the addressee because the addressee certainly could not rely on any communication that he has not received. Accordingly, a withdrawal would be permissible prior to receipt. Insofar as revocation is concerned, a party [page 427] would be permitted to revoke a notice of avoidance so long as the addressee did not rely on the notice.
Most significantly, the reliance-based standard applies relatively favorably to the revocability issues surrounding implicit notices to avoid. A party exhibiting conduct demonstrative of a notice to avoid is protected from being bound to such implicit notice until the defaulting party changes his position in reaction to the conduct. As a result, if a party unknowingly communicates an avoidance through certain behavior, such avoidance can be revoked if non-reliance can be established.
Although the possibility remains that a party may become bound by conduct not intended to serve as a notice to avoid, this approach at least permits a party to affirmatively address the other party's misinterpretation, whereas the other approaches do not necessarily allow for such an opportunity.
The many considerations associated with the notice requirement for avoidance under the CISG may not be readily apparent to a party contemplating avoidance of a contract. A thorough examination of the circumstances surrounding such notices results in the understanding that the notice to avoid constitutes a crucial component of the avoidance mechanism under the Convention. When issued properly, a notice to avoid will safeguard a party's ability to seek termination of the contract. In contrast, an imperfect notice may render avoidance ineffective.
Where avoidance is not sought, parties should not engage in conduct that could be interpreted as a notice to avoid. Although the concept of implicit notice is considered an "open question" within the Convention, courts have nonetheless recognized certain conduct as representing implicit notices to avoid. Therefore, parties to CISG contracts should be aware of the judicial [page 428] treatment of certain conduct in order to ensure that they do not unwittingly communicate an intention to avoid.
Moreover, a party wishing to withdraw or revoke a notice to avoid may do so under certain circumstances. While several views exist regarding the irrevocability of such notices, the most legitimate approach dictates that notices to avoid may be unilaterally withdrawn or revoked by the declarer unless the addressee relied on the notice. [page 429]
1. United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, S. Treaty Doc. No. 98-9 (1983), 19 I.L.M. 668 (1980); 15 U.S.C.A. app. at 49 (West Supp. 1996); 52 Fed. Reg. 6262-80, 7737 (1987); U.N. Doc. A./Conf. 97/18 (1980) [hereinafter CISG or Convention] (entered into force on Jan. 1, 1988).
2. CISG, supra note 1, art. 26.
3. While sparse, CISG case law provides a tool that can be used to interpret the Convention more uniformly. Such is consistent with the principle set forth in Article 7(1), which states: "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application. . . ." Essentially, "it is necessary to consider the practice of other jurisdictions, i.e., 'what others have already done.'" Franco Ferrari, CISG Case Law: A New Challenge for Interpreters?, 17 J.L. & Com. 247 (1998) (citation omitted).
4. Substantive examination of such grounds -- namely what constitutes a fundamental breach pursuant to Article 25 CISG -- falls outside the scope of this comment. The remedy of avoidance under the Convention has been analyzed at length by several commentators. See, e.g., Robert Koch, The Concept of Fundamental Breach of Contract Under the United Nations Convention on Contracts for the International Sale of Goods (CISG), in Review of the Convention on Contracts for the International Sale of Goods (CISG) (1998) 177-354, available at <http://www.cisg.law.pace.edu/cisg/biblio/koch.html> (last visited Feb. 14, 2003).
5. Hans G. Leser, Article 26, in Commentary on the UN Convention on the International Sale of Goods (CISG) 188-89 (Peter Schlechtriem ed., 1998).
6. CISG, supra note 1, art. 26.
7. Id. (explaining that the general principle embodied in Article 11 CISG -- that a contract of sale is not subject to any requirements as to form -- extend to declarations of avoidance).
8. Harry M. Flechtner, Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C., 8 J.L. & Com. 53, 83 (1988).
9. Id. (citing CISG, supra note 1, art. 8).
10. Andrew Babiak, Defining "Fundamental Breach" Under the United Nations Convention on Contracts for the International Sale of Goods, 6 Temp. Int'l & Comp. L.J. 113, 135 (1992).
11. John O. Honnold, Uniform Law for International Sales 214 (3d ed. 1999).
12. Flechtner, supra note 8, at 83.
13. Furthermore, courts have recognized the relationship between Article 39 notice and notice of avoidance in terms of the timeliness of such notices. Handelsgericht Zurich, HG920670, Apr. 26, 1995 (Switz.), available at <http://www.unilex.info> (last visited Dec. 11, 2002). In that case, the buyer discovered a defect in the goods (an isolation tank containing water with high salt concentration) four weeks after delivery. Id. Four weeks after discovery of the defect, the buyer gave notice of the lack of conformity. Id. In the same communication, the buyer declared the contract avoided. Id. The court held that the contract had not been validly avoided under Article 49(2)(b)(i) because the buyer should have made the declaration within a reasonable time after it knew or ought to have known of the breach. Id. Moreover, the court noted that a buyer wishing to declare a contract avoided on the basis of non-conformity must make the declaration of avoidance within the same time required to give notice of the lack of conformity under Article 39(1). Id. In essence, the time period contemplated by Article 49 in cases of non-conforming goods is governed by the timing requirements of Article 39.
14. Honnold, supra note 11, at 214-15.
15. On the other hand, a notice that does not use the term "avoidance" could nonetheless be effective, so long as the communication clearly indicates the party's intention to avoid the contract.
16. Oberlandesgericht München [Court of Appeals], 7 U 4419/93, Mar. 2, 1994 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
18. Leser, supra note 5, at 188. Notably, however, a specific form may be required in the contract itself, or may be governed by a particular usage established between the parties. Id. Moreover, if one party's country has made the Article 96 reservation under the Convention, the question of whether domestic law writing requirements apply to notices of avoidance must also be considered. Article 96 provides: "[A] Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than writing, does not apply where any party has his place of business in that State." CISG, supra note 1, art. 96. Because notices of avoidance are governed by Article 26-under Part III of the Convention-such notices fall outside of the scope of Article 12. Consequently, notices of avoidance are not affected by the Article 96 reservation.
19. The provisions of Article 27 apply to notices issued with respect to Part III of the Convention, unless another provision of Part III expresses otherwise. CISG, supra note 1, art 27. That Article 26 falls under Part III of the Convention and is silent as to the form of the notice of avoidance indicates that Article 26 notices are subject to the terms of Article 27.
20. Article 27 provides that "a delay of error in the transmission of the communication or its failure to arrive does not deprive [the transmitting] party of the right to rely on the communication." CISG, supra note 1, art. 27.
22. Babiak, supra note 10, at 135.
23. Situations may arise, of course, where written notice of avoidance may not be possible under the circumstances (e.g., time constraints). The author simply suggests that where the circumstances allow, a party declaring avoidance should choose a written form over oral transmission.
24. Peter Schlechtriem, Article 27, in Commentary on the UN Convention on the International Sale of Goods (CISG) 191-92 (Peter Schlechtriem ed., 2d ed. trans., 1998) [hereinafter Article 27 Commentary].
25. See, e.g., Landgericht Kassel [trial court], 8 O 2391/93, June 22, 1995 (F.R.G.), (recognizing that telephone notice is acceptable dispatch "by appropriate means" under Article 27, but that proof of the conversation may be required), available at <http://www.cisg.law.pace.edu/cases/950622g1.html> (last visited Feb. 14, 2003).
26. Landgericht Frankfurt [trial court], 3/3 O 37/92, Dec. 9, 1992 (F.R.G.), available at <http://www.cisg.law.pace.edu/cases/921209g1.html> (last visited Feb. 14, 2003).
29. Landgericht Frankfurt [trial court], 3/13 O 3/94, July 13, 1994 (F.R.G.), available at <http://www.cisg.law.pace.edu/cases/940713g1.html> (last visited Feb. 14, 2003).
31. CISG, supra note 1, art. 6 ("The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions."). In fact, it may be prudent during contract formation for a party to insist upon derogation from Article 27 and require that any notices of avoidance be written. In so doing, a party may escape the problem of the defaulting party construing conduct or communications as representing a notice of avoidance in situations where the aggrieved party does not actually wish to avoid the contract. Such situations relate to conduct that could be understood as an implicit notice of avoidance. See infra Part III.
32. Landgericht Stuttgart [trial court], 16 S 40/91, Aug. 13 1991 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
33. Id., but see Article 27 Commentary, supra note 24, at 193 (stating that standard terms derogating from Article 27 must be individually negotiated).
34. Amtsgericht Nordhorn, 3 C 75/94, June 14, 1994 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
37. Siegfried Eiselen, Electronic Commerce and the UN Convention on Contracts for the International Sale of Goods, 6 EDI L. Rev. 21, 32 (1999).
39. See id.
40. Leser, supra note 5, at 188.
41. Id. at 188-89.
42. Anna Kazimierska, The Remedy of Avoidance Under the Vienna Convention on the International Sale of Goods, in Pace Review of the Convention on Contracts for the International Sale of Goods (1999-2000) 114-15, available at <http://www.cisg.law.pace.edu/cisg/biblio/kazimierska.html> (last visited Feb. 14, 2003).
43. Essentially, where a party's conduct clearly demonstrates that it treats the contract as terminated, the requirement of a formal notice to avoid may be inefficient. See infra notes 44 and 45 and accompanying text.
44. Jacob S. Ziegel & Claude Samson, Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods (1981), available at <http://www.cisg.law.pace.edu/cisg/wais/db/articles/english2.html> (last visited Apr. 17, 2003).
46. Federal Court, South Australian District Adelaide, 57 FCR 216, Apr. 28, 1995, (Austl.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
50. Oberlandesgericht Hamburg [court of appeals], 1 U 167/95, Feb. 28, 1997 (F.R.G), available at <http://www.cisg.law.pace.edu/cases/970228g1.html> (last visited Feb. 14, 2003).
51. Id. The Nachfrist period refers to the additional period of time set by an aggrieved buyer in the case of non- delivery, pursuant to Article 47(1). For the purposes of avoidance, Article 49(1)(b) states that where non-delivery is concerned, an aggrieved buyer may declare the contract avoided "if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed."
53. Id. Notably, however, a substitute purchase itself does not operate as a declaration of avoidance. Oberlandesgericht Bamberg [court of appeals], 3 U 83/98, Jan. 13, 1999 (F.R.G.), available at <http://www.cisg.law.pace.edu/cases/990113g1.html> (last visited Feb. 14, 2003). Such would constitute ipso facto avoidance, a concept which was deliberately omitted from the CISG by the Drafters of the Convention. See infra notes 61-73 and accompanying text.
54. Oberlandesgericht Hamburg [court of appeals], 1 U 167/95, Feb. 28, 1997 (F.R.G.), available at <http://www.cisg.law.pace.edu/cases/970228g1.html> (last visited Feb. 14, 2003).
55. CISG, supra note 1, art. 7(1).
56. See Landgericht Frankfurt am Main [trial court], 3/11 O 3/91, Sept. 16, 1991 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003). See also infra notes 74-76 and accompanying text.
57. Such declaration should take the form of a written notice. See supra Part II.
58. CISG, supra note 1, art. 8; see also Flechtner, supra note 8 and accompanying text; supra text accompanying note 9.
59. See supra Part III.A.
60. CISG, supra note 1, art. 8(2), 8(3). The objective test set forth in Article 8(2) is preferable as opposed to a subjective approach. Essentially, it would be much easier for a court to gauge the aggrieved party's conduct "according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances," CISG, supra note 1, art. 8(2), rather than attempting to delve into the mind of the breaching party.
61. Leser, supra note 5, at 188.
62. Peter H. Pfund, The 1980 U.N. Convention on Contracts for the International Sale of Goods (CISG): Background and Status, 570 Practising Law Institute Corporate Law & Practice Course Handbook Series 39, 60 (1987).
65. Convention Relating to a Uniform Law on the International Sale of Goods, art. 25, The Hague, July 1, 1964, available at <http://www.unidroit.org/english/conventions/c-ulis.htm> (last visited Feb. 14, 2003).
68. Id. at art. 26(1).
69. Id. at art. 30(1).
70. Id. at art. 62(1).
71. Id. at art. 26(1), 30(1), 62(1).
73. Leser, supra note 5, at 187.
74. Landgericht Frankfurt am Main [trial court], 3/11 O 3/91, Sept. 16, 1991 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
76. The fact that the court wrestled with the question of whether implicit notice was valid or whether express notice was required illustrates the unpredictability of judicial analysis regarding the issue.
77. Landgericht Frankfurt am Main [trial court], 3/11 O 3/91, Sept. 16, 1991 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
78. Martin Karollus, Judicial Interpretation and Application of the CISG in Germany 1988-1994, in Cornell Review of the Convention on Contracts for the International Sale of Goods (1995), available at <http://www.cisg.law.pace.edu/cisg/biblio/karollus.html> (last visited Feb. 14, 2003).
81. Bundesgerichtshof , VIII ZR 300/96, June 25, 1997 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
82. Oberlandesgericht Frankfurt am Main [court of appeals], 13 U 51/93, Apr. 20, 1994 (F.R.G.), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
84. It is reasonable to extend this principle to the case of an aggrieved seller and conclude that conduct indicating that goods will not be delivered will also be treated as implicit avoidance.
85. Corte di Appello di Milano [Court of Appeals], 790, Mar. 20, 1998 (Italy), available at <http://www.unilex.info> (last visited Feb. 14, 2003).
87. Delayed Shipment of Crude Metal (S. Korea v. Czechoslovakia), ICC Arbitration Case No. 7645 (1995), available at <http://www.cisg.law.pace.edu/cases/957645i1.html> (last visited Feb. 14, 2003).
89. Harry M. Flechtner, Transcript of a Workshop on the Sales Convention, 18 J.L. & Com. 191, 218 (1999).
90. This distinction is derived from CISG Articles 15(2) and 16(1).
91. Leser, supra note 5, at 189. Leser suggests that a declaration becomes irrevocable when the declarer becomes "bound" by it. Id. Leser further notes, however, that the Convention does not stipulate when a declarer is bound by a notice to avoid. Id.
92. See supra note 19.
93. Kazimierska, supra note 42, at 115 n.165.
94. Leser, supra note 5, at 189 (citations omitted); see also Fritz Enderlein & Dietrich Maskow, International Sales Law, United Nations Convention on Contracts for the International Sale of Goods-Convention on the Limitation Period in the International Sale of Goods 118-19 (1992). Notably, where Article 27 does, in fact, become involved in relation to a notice (i.e., a defective communication is never received by the addressee), it may be necessary to "determine a hypothetical time of receipt" in order to calculate the time when the declaration takes effect. Leser, supra note 5, at 189.
95. Karl Neumayer & Catherine Ming, Convention de Vienne sur Les Contrats de Vente Internationale de Marchandises (Commentaire) 227 (1993).
97. This may be justifiable by way of analogy to Article 15(2), which allows for withdrawal of an offer prior to receipt by the offeree. Leser, supra note 5, at 189 n.30.
98. Neumayer & Ming, supra note 95, at 227.
99. Peter Schlechtriem, Effectiveness and Binding Nature of Declarations (Notices, Requests, and Other Communications) under Part II and Part III of CISG, in Cornell Review of Convention on Contracts for the International Sales of Goods (CISG) (1995) [hereinafter Effectiveness and Binding Nature of Declarations] (citing Ulrich Huber, Art. 45: Rechtsbehelfe des K ufers; Keine Zus tzliche Frist in Kommentar zum Einheitlichen UN-Kaufrecht 401, 412-13), available at <http://www.cisg.law.pace.edu/cisg/biblio/schlecht.html> (last visited Feb. 14, 2003).
100. Notably, if the proposition is true that the irrevocability of a notice depends on when the notice becomes effective, this approach serves as a corollary to the receipt theory of effectiveness. Seemingly, this approach would require agreement in addition to receipt in order for a notice to become effective and irrevocable.
101. Ericson P. Kimbel, Nachfrist Notice and Avoidance Under the CISG, 18 J.L. & Com. 301, 312-13 (1999) (citing John O. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention § 354, at 443 (2d ed. 1991)); see also Article 27 Commentary, supra note 24, at 196.
102. Effectiveness and Binding Nature of Declarations, supra note 99.
103. Id. at 197.
104. Id. at 196.
105. See id.
106. Effectiveness and Binding Nature of Declarations, supra note 99.
107. Article 27 Commentary, supra note 24, at 197.
108. Effectiveness and Binding Nature of Declarations, supra note 99.
109. Relying on these provisions is consistent with the spirit of Article 7(2), which provides that unsettled matters within the Convention "are to be settled in conformity with the general principles on which it is based. …" CISG, supra note 1, art. 7(2).
110. Article 27 Commentary, supra note 24, at 197. In particular, Article 16, which deals with the revocability of offers, provides that an offer cannot be revoked "if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer." CISG, supra note 1, art. 16(2)(b). Moreover, Article 29 explains that "[a] contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement." Id. at art. 29(2). Importantly, "a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct." Id.
111. Article 27 Commentary, supra note 24, at 197.
112. See Neumayer & Ming, supra note 95, at 227 and accompanying text.
113. It is necessary to note, however, that an aggrieved party should not manipulate the reliance-based standard by taking advantage of the permissible revocation that results from this approach. In other words, a party should only exercise its right to revocation in good faith, and not revoke a notice only on the basis that the other party has not relied on it. For example, a party could choose to avoid the contract and issue a notice to that effect. After the issuance of the notice, however, the market price of the goods in question could rise significantly. As an alternative to buying replacement goods at the higher price, the aggrieved party could revoke the notice to avoid before the other party changes its position in reliance on it, thereby preserving the lower price. Such would constitute speculating at the other party's expense and would violate the duty of good faith embodied in Article 7(1) CISG.