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

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c) Avoidance of the Contract (Article 49) [304]

As a rule, the contract may be avoided only when the failure to perform amounts to a "fundamental breach of contract" under Article 25. The option provided by ULIS to the buyer to extend the date for performance and thereby to clarify whether a breach is fundamental [305] has been retained only for the case where there is no delivery at all.[305a] (Article 49(l)).[306] By analogy, the provision also applies to the failure to transfer documents of title.[307] The basis for this provision was both the general tendency to curtail the remedy of avoidance of contracts, and, above all, the fear that the procedure of extending the deadline for performance could be used to "upgrade" an unimportant violation of the contract into a fundamental breach.[308]

Further, the buyer's right to avoid the contract is also lost, according to Article 49(2), where the rule is set forth in detail, if the buyer waits too long after delivery to declare his intent to avoid.[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.

304. For avoidance of an instalment contract under Article 73, see infra at VI.E.3.

305. See generally Beinert at 50, 66. Beinert's position deviates in part from mine in regard to the function of extending the deadline for performance.

305a. Ziegel sees this as doubtful. See Ziegel, Remedial Provisions at 9-17.

306. Delivery of a different kind of goods (aliud), on the other hand, is a "lack of conformity" and justifies avoidance of the contract, but only if - as would normally be the case - it constitutes a fundamental breach.

307. But see Huber at 509.

308. See A/Conf. 97/C.1/SR.22 at 7 et seq. (= O.R. 253 et seq.) (discussion at the 22^nd session of the First Committee). This argument, which refers primarily to defects in quality, was difficult to refute because of the lack of a provision like ULIS Article 33(2) or German Civil Code § 459(1) sentence 2.

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