ANNOTATED TEXT OF CISG
Article 46

(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

(3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

Legislative history || Case law || Scholarly writings || Links to related articles || Words and phrases || CISG (full-text)

Guide to this article

• UNCITRAL outline of issues present
  
• Editoral analysis of this article with cross-references to related subjects, Vivian G. Curran [U.S.]
  
• Secretariat Commentary (closest counterpart to an Official Commentary on this article)
  • Match-up of this article with the 1978 draft
  (to validate Secretariat Commentary)
• Use of the UNIDROIT Principles to help interpret CISG Article 46 [partial presentation]
• Use of the Principles of European Contract Law to help interpret CISG article 46
  • Match-ups with Continental and Common Law domestic rules, doctrine and jurisprudence

• Roadmap to the legislative history of this article
• Legislative history of this article: long form
• Legislative history of this article: short form
  • Chronology of development of Article 46 at the 1980 Vienna Diplomatic Conference
• Summary of UNCITRAL legislative history
• Hague Convention antecedents
  • Article 46 match-up with ULIS
  • ULIS (full-text) and André Tunc Commentary on ULIS

• For further information on CISG case law (material not in this database), go to Unilex: click for a description of the contents of this service. Also of considerable utility are the compendium of case citations and the CISG bibliography contained in Michael R. Will, Twenty Years of International Sales Law Under the CISG: International Bibliography and Case Law Digest, Kluwer Law International (2000). Prof. Will's materials are presented on the CD-Rom edition of the database.

• Selected monographs and anthologies (English language)

• Comments on Article 46 from 1999 text by John O. Honnold [U.S.] [available in CD-ROM edition only]

• Comments on Article 46 from seminal 1986 text by Peter Schlechtriem [Germany]

• Comments on Article 46 from monograph by Jacob S. Ziegel [Canada]

• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries

• Nayiri Boghossian [Syria], A Comparative Study of Specific Performance Provisions in the United Nations Convention on Contracts for the International Sale of Goods, McGill University (1999)

• John Fitzgerald, "CISG, Specific Performance and the Civil Law of Louisiana and Quebec", 16 Journal of Law & Commerce (1998) 291-313

• Harry M. Flechtner [United States], excerpt from Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C., 8 Journal of Law and Commerce (1988) 53-108

• Amy H. Kastely [United States], "The Right to Require Performance in International Sales: Towards an International Interpretation of the Vienna Convention", 63 Washington Law Review (1988) 607-651

• Peter A. Piliounis, excerpt from The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist) under the CISG: Are these worthwhile changes or additions to English Sales Law? (Cambridge 1999)

• Steven Walt [United States], "For Specific Performance Under the United Nations Sales Convention", 26 Texas International Law Journal (1991) 211-251

• Alison E. Williams, excerpt from Forecasting the potential impact of the Vienna Sales Convention on international law in the United Kingdom (Pace essay: October 2000)

• To identify other relevant commentaries, go to Bibliography and Bibliography Search Form [cure, remed* (stem for remedy/remedies), performance and specific performance ("pre/1" = instruction used to confine search to commentary titles with "specific" and "performance" presented together) are search form entries you may wish to consider]

  Our bibliography contains thousands of citations in 24 languages; we encourage you to tailor your own bibliography search to the specific aspect of this article that you are researching.

Links to related articles

• For the provision cited in Article 46(2) and 46(3), Go to Annotated Text of Article 39 [Notice of lack of conformity]

• For a provision that can bear upon Article 46, go to Annotated Text of Article 28 [Specific performance and the rules of the forum]. For counterpart provision on seller's right to require performance, go to Annotated Text of Article 62.

Words, phrases and concepts

• Diplomatic Conference colloquy on nature of cure, seller's option? Article 46 makes it "quite clear that the buyer could, in the case of a fundamental breach, require the seller to perform, either through the delivery of substitute goods or by remedying the defect in the goods. It could happen, however, that the buyer might require performance in a certain manner whereas the seller would prefer to acquit himself of his obligations in another manner." Farnsworth (U.S.) proposed that the seller should "be permitted to determine the manner in which he intended to remedy his failure to perform." This proposal was rejected. OR 352, paras. 31-35 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March 1980, A/CONF. 97/19]

• "repair". The reference to "repair" in paragraph (3) of Article 46 was added at the Diplomatic Conference. A Conference colloquy explains. OR 335-337, paras. 11-45 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March - 11 April 1980, A/CONF. 97/19]

• reasonableness [46(3)]: In addition to being specifically mentioned in this article, reasonableness is a general principle of the CISG
  • For the definition of reasonableness recited in the Principles of European Contract Law and references to reasonableness in Continental and Common Law domestic rules, doctrine and jurisprudence, go to PECL article 1:302 and the comment and notes prepared for this provision

  • To drive home the correlation between the PECL's definition of reasonableness and the evident same meaning of this term to CISG legislators when they used the concept either specifically or as a general principle of the uniform law they drafted, see overview comments and comments that illustrate the similar manner in which this concept fits the CISG