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Cite as Will, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 377-378. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 51

Michael Will

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

ARTICLE 51

(1) If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46 to 50 apply in respect of the part which is missing or which does not conform.

(2) The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract.

1. History of the provision

     1.1. - Article 51 and the following Article 52 close the section on the buyer's remedies by dealing with special situations of non-fulfillment of the contractual terms. Article 51 envisages two cases of partial default: partial default in quantity and partial default in quality.

     1.2. - National solutions differ. For instance, while under English and American law the buyer must accept or refuse delivery as a whole, under German law the buyer's remedies are normally limited to the defective part.

     1.3. - Article 45 of ULIS adopted the latter solution. The UNCITRAL Draft Convention proposal, almost identical, was adopted after little discussion and without change (see Official Records, II, 211, 427).

2. Meaning and purpose of the provision

Article 51 contains two paragraphs, both of which deal with partial default in quantity and quality. Paragraph (1) expressly [page 377] refers to the remedies in Articles 46 to 50, making all of them applicable but only to that part of the contract which has given rise to difficulties. Paragraph (2), without an express reference, underlines the restrictive policy of Article 49(1)(a), allowing for avoidance of the entire contract only in a fundamental breach situation.

     2.1. - Paragraph (1) follows the general policy of the Convention to save as much of the contract as possible. The buyer shall not be able to avail himself of remedies addressed to the entire contract when only a part of the performance is faulty. Therefore, the remedies provided for in Articles 46 to 50 apply only with respect to the non-conforming or missing part.

          2.1.1. - This presupposes that the performance of the seller can be divided into conforming and non-conforming parts; otherwise Articles 46 to 50 apply directly.

Where the missing or non-conforming part can be severed, the reference means that both the conditions and the effects of Articles 46 to 50 are applicable to that part.

          2.1.2. - As to the remedy of partial avoidance, the language in Article 49 may seem confusing. «The buyer may declare the contract avoided» has to be interpreted so as to refer not to the entire contract but only to that part which is defective.

     2.2. - Paragraph (2) simply restates the remedy contained in Article 49(1)(a) in the particular context of partial default: where partial default amounts to a fundamental breach, and only in this case, the buyer is given the possibility to avoid the entire contract.

One may well ask, whether paragraph (2) adds anything to Article 49. Its function must probably be seen in relation to the general rule in paragraph (1), to which it forms an exception.

The use of the word «only» indicates that there was no intention to let the buyer avoid the entire contract in Article 49(1)(b) cases (see Official Records, I, 44). [page 378]


Pace Law School Institute of International Commercial Law - Last updated February 1, 2005
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