Published by Manz, Vienna: 1986. Reproduced with their permission.

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b) The Seller's Right to Cure (Article 48) ("Second Tendering")

Until the buyer has effectively avoided the contract - even after the deadline for delivery has passed - the seller can generally still "cure," that is, deliver the goods, make repairs, or replace parts or goods. However, he may not take an "unreasonable" (disproportionately long) time to do so or cause the buyer unreasonable inconvenience or uncertainty about the reimbursement of expenses advanced by the buyer (Article 48(1)).[301a] The buyer retains his right to claim damages caused by the delay, even if, as a result of his cure, the seller fully performs his obligations (Article 48(1) sentence 2). In addition to the right to cure under Article 48(1) sentence 1, which theoretically could be cancelled by the buyer's avoidance of the contract, Article 48(2) permits the seller, by sending a request (which is effective upon receipt) together with an indication of the date by which he intends to fulfill [page 77] his obligations, to ask for clarification as to whether he the buyer will accept the cure. If the buyer does not respond to this request, he may not resort to any remedies inconsistent with performance by the seller before this deadline (Article 48(2) and (3)).

Article 48 was the subject of controversy in Vienna. The Federal Republic of Germany criticized the provision above all because the buyer's right to avoid the contract endangers the seller's right to cure. The West German delegation believed that the seller's right to a "second tender" should be ensured under the Convention.[302] As a rule, however, the present version will not affect the seller's right to a "second tender". Where the failure to meet a deadline in itself does not constitute a fundamental breach - in other words, when time is not of the essence - the seller's cure within a reasonable time after the due date will normally prevent the delay from constituting a "fundamental breach of contract" such as to permit the buyer to avoid the contract.[303] [page 78]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

301a. Cure is acceptable only if the seller's obligation is met according to the terms of the contract. But see Ziegel, Remedial Provisions at 9-23 (regrets that the Convention is silent on this question).

302. See A/Conf. 97/C.1/L.140 (= O.R. 114) (the motion); A/Conf. 97/C.1/L.160 (= O.R. 114) (Bulgarian motion to the same effect); A/Conf. 97/C.1/SR.20 at 6 et seq. (= O.R. 340 et seq.) (discussion thereon). The German motion is based on Huber's staunch criticism. See Huber at 486 et seq., 490-91.

303. See also A/Conf. 97/C.1/SR.10 at 6 § 39 (= O.R. 341) (position of the Dutch delegate who thought that the German concern could be met by an appropriate interpretation of Article 48); id. at 8 § 48 (= O.R. 342) (similar position taken by Hjerner (Sweden)); Honnold, Commentary § 184.

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