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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 48
Sellerís Right to Cure After the Delivery Date

  1. Introduction
  2. Relation Between Cure and Avoidance Under Article 49
  3. Proposals and Notice by Seller Regarding Cure

1. Introduction

220. By providing a seller who delivers before the contract date with a certain right to 'cure' non-conformities (defects) in the goods so delivered, Article 37 gives the seller a chance to limit the damage caused by the breach and also to limit the scope of remedial relief otherwise available to the injured buyer.[1] Article 48(1) supplements this early-delivery rule with a more limited right for the seller to cure defects after the delivery date:

'Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention.'

1. See supra No. 182.

221. Mistakes will happen, inter alia, in international trade: (some) of the goods delivered may not conform to the contract, a third party's interest may appear to conflict, the documents may be defective in some respect, etc. In most such situations, an effective remedy by the seller of her failure to perform in full - even where such 'cure' takes place after the contractual delivery date - may be preferable to an avoidance of the contract: this will surely be the case for the seller, and it [page 121] may also even be true for the buyer. To exercise her right under Article 48(1), however, the seller must produce a cure which is quick, convenient and certain as seen from buyer's point of view.

2. Relation Between Cure and Avoidance Under Article 49

222. Article 48(1) starts with a 'subject to Article 49' reference which is not completely clear on its face, and neither the legislative history nor (as yet) the CISG case law has clarified the relationship between these important provisions.

On the other hand, there does seem to be an emerging consensus that, in most cases, the seller should be allowed to remedy even serious defects in accordance with Article 48(1), i.e., even in cases where a given non-conforming delivery might otherwise seem to fall within the scope of the fundamental breach rule in Article 49. The reason for this is the existence of a 'dynamic' relationship among Articles 25, 48(1) and 49, the idea being that when a given non-conformity can be cured without great inconvenience to the buyer, then that non-conformity should not be regarded as a fundamental breach.

So, except in cases where a given breach remains 'incurable' (by reasonable means), most commentators agree that a seller's good-faith offer to cure ought not be defeated by the buyer's right to avoid for a fundamental breach.[1]

1. See Huber in Schlechtriem, Commentary (1998) pp. 406-410 and Honnold, Uniform Law (1999) pp. 319-322 [available at <http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem.html>]. See also the decision of Pretura di Locarno-Campagna (Switzerland), 27 April 1992, No. 6252, reported [at <http://cisgw3.law.pace.edu/cases/920427s1.html> and] in UNILEX where a Swiss buyer re-sold living-room furniture to a local customer who then complained that the goods were defective (sitting on sofas caused cushions to slide forward); the Swiss buyer was held not entitled to avoid, inter alia, because he had refused to accept an offer by his Italian seller to cure the non-conformity by replacing the upholstery.

3. Proposals and Notice by Seller Regarding Cure

223. The remainder of Article 48, paragraphs (2)-(4), contains a series of logical rules regarding proposals and notice by the seller regarding cure.[1]

1. The text of Article 48(2-4) is as follows: '(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.
(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision.
(4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer.' For a more detailed analysis of these provisions see, e.g., Huber in Schlechtriem, Commentary pp. 411-413 and Honnold, Uniform Law at 322-324 [available at <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>].
[page 122]

Pace Law School Institute of International Commercial Law - Last updated April 5, 2005
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