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Cite as Will, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 329-332. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 45

Michael Will

1. History of the provision
2. Meaning and purpose of the provision

ARTICLE 45

(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.

(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.

(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract.

1. History of the provision

     1.1. - Article 45 opens the section on remedies for breach of contract by the seller. At first sight it seems not to contain any rule of its own but simply to list the remedies available to the buyer. Closer observation, however, reveals that the list is far from being exhaustive (further remedies are expressed in Articles 71 et seq.) and that it includes a substantive rule on damages.

     1.2. - The Convention has adopted most of the remedies but not the system of ULIS. ULIS did not separate obligations and remedies. Each obligation was followed by the proper remedy or remedies for its breach, so as to make the merchant immediately aware of the potential legal consequences for breach. However, too many cross-references and repetitive remedial provisions were the price of such fragmentation. The system turned out to be too unwieldy a tool to apply in practice. [page 329]

     1.3. - The difficulty had been foreseen and the fragmentation was criticized by one commentator who as early as 1952 suggested a simpler system: to unite all the obligations in one section and in another all the remedies (see RABEL, Gesammelte Aufsätze, Tübingen (Mohr), 1965-1911, III, 681 et seq. - in French).

Accordingly, Chapter II, Section III of the Convention first lists the obligations of the seller and afterwards the remedies of the buyer, Chapter III, Section III the obligations of the buyer and afterwards the remedies of the seller. «This makes it easier to understand», said the Secretariat's Commentary, «what the seller must do, that which is of prime interest to merchants» (see Official Records, I, 37).

     1.4. - The Draft proposal was adopted without any change (see Official Records, II, 209, 328).

2. Meaning and purpose of the provision

     2.1. - The first two paragraphs can be dealt with jointly when explaining their function and contents.

          2.1.1. - Their function is twofold. On the one hand they merely announce the remedies contained in the following articles; on the other hand they establish the legal basis of such an important remedy as the claim for damages.

The announcement in sub-paragraph (1)(a) serves no purpose of its own. It could be dropped altogether, as the legal basis for the rights indicated is not to be found here but in each of the following articles. Besides, the reference to Articles 46 to 52 is incomplete, as it omits the buyer's rights stated in Articles 71 et seq.

Sub-paragraph (1)(b) and paragraph (2) go together. The first establishes the legal basis of the claim for damages, and the second clarifies its relationship to the remaining remedies.

A claim for damages lies whenever the seller fails to perform one of his obligations under the contract or this Convention. It is this article, and not Article 74 as the language of Article 78 seems to suggest, which furnishes the substantive conditions under which the claim of damages can be exercised. Article 74 [page 330] contains rules only for calculating the amount of damages (see Secretariat's Commentary, Official Records, I, 37). Nor does the question of interest belong here, which was so amply discussed during the Vienna Conference in the context of sub-paragraph (1)(b) (see Official Records, II, 209-210).

          2.1.2. - Article 45(1) and (2) raise three issues: the notion of breach of contract in general, the relation between damages and other remedies, and the absence of any notion of fault in the remedy of damages.

The notion of breach of contract, the substantive condition for claiming damages, is identical with the non-fulfillment of any of the seller's obligations. It refers to all obligations stated in Articles 30 et seq. or stipulated in the contract, no matter whether they be of major or minor importance. Unlike many civil law codifications that distinguish between various types of violation of contract, this Convention acknowledges only one notion of breach.

Paragraph (2) emphasizes that by resorting to any other remedy the buyer is not precluded from claiming damages. This clarification seems useful since some national laws, such as the English, German and Hungarian ones, do not allow combining the remedy of avoidance of a contract with an action for damages. The Convention rule corresponds to various national provisions such as Article 1184 of the Napoleonic Code and its followers and to § 2-702 of the United States Uniform Commercial Code. Consequently, the buyer who avoids the contract may both recover the purchase price and claim any additional damages.

Damages are available independent of any fault. Here the Convention follows not the civil law tradition but the common law approach whereby any objective failure on the part of the seller to fulfil any of his obligations provides the buyer with a claim for damages. Despite the difficulties which import and export companies in civil law countries may experience in adjusting to the new guarantee principle, they will come to realize how it serves to accelerate the winding up of transactions which have not worked well (see BARTELS-MOTOMURA, Haftungsprinzip, 704). The principle is softened by the exemptions contained in Articles 79 and 80, a technique used in earlier codifications of [page 331] international sales law (see e.g., Article 74 of ULIS; Article 252 of the Czechoslovakian International Trade Code; and Article 293 of the German Democratic Republic Law on International Commercial Contracts). Thus the claim for damages serves to complete the system of remedies: it provides the buyer with compensation in cases where other remedies do not lie or do not lead to adequate compensation.

     2.2. - Paragraph (3) merely clarifies for the seller, as does Article 61(3) for the buyer, that no period of grace can be granted by a State court or arbitral tribunal. This rule was already contained in ULIS, and in a more appropriate place, namely next to the sole remedy to which it belongs, that of avoidance, and not among all the other remedies to which it does not refer. Article 45(3) is principally directed against the principle laid down in the French Civil Code. The délai de grâce of French origin presupposes a procedure of applying to a court for avoiding the contract. Since the Convention does not provide such a procedure, there is no room for such an additional period. It may be noted that the cleavage between the Convention and commercial practice in Romanistic countries is not so deep as one might think. A number of Mediterranean and Latin American Codes exclude the supplementary period with regard to merchants, and even in France it is usually stipulated away by the parties.

The reasons against such a period of grace are even stronger in international commerce. Who can sit and wait until the judge or arbiter decides whether to allow immediate avoidance of the contract, or to grant a period of grace, or not to allow avoidance at all? Procedures may be long and expensive. Moreover, it has been felt «particularly inappropriate ... [to] expose the parties to the broad discretion of a judge who would usually be of the same nationality as one of the parties» (see Secretariat's Commentary, Official Records, I, 39). [page 332]


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