ANNOTATED TEXT OF CISG
Article 49

(a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or

(b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed.

(2) However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so:

(a) in respect of late delivery, within a reasonable time after he has become aware that delivery has been made;

(b) in respect of any breach other than late delivery, within a reasonable time:

(i) after he knew or ought to have known of the breach;

(ii) after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 47, or after the seller has declared that he will not perform his obligations within such an additional period; or

(iii) after the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 48, or after the buyer has declared that he will not accept performance.

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
  
• Editorial analysis of this article with cross-references to related subjects [not yet available]
  
• 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 Articles 47 and 49
  • Editorial remarks: Robert Koch [Germany]
• Use of the Principles of European Contract Law to help interpret CISG article 49
  • Editorial remarks: Jonathan Yovel
  • Match-ups with Continental and Common Law domestic rules, doctrine and jurisprudence
• For a case annotated analysis of issues associated with The Buyer's Right to Avoid the Contract in Case of Non-Conforming Goods or Documents, go to CISG-AC Opinion No. 5, dated 7 May 2005. Rapporteur: Professor Dr. Ingeborg Schwenzer, University of Basel. Analysis endorsed by Jan Ramberg, Chair; Eric E. Bergsten, Michael Joachim Bonell, Alejandro M. Garro, Roy M. Goode, Sergei N. Lebedev, Pilar Perales Viscasillas, Peter Schlechtriem, Ingeborg Schwenzer, Hiroo Sono, Claude Witz, Members; Loukas A. Mistelis, Secretary.

• 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 49 at the 1980 Vienna Diplomatic Conference
• Summary of UNCITRAL legislative history
• Hague Convention antecedents
  • Article 49 match-up with ULIS
  • ULIS (full-text) and André Tunc Commentary on ULIS
  • See also the Report of the Special U.S. Committee, dated 1 December 1964,
    explaining why the United States elected not to adopt either ULIS or ULF

• CASES INVOLVING CISG ARTICLE 49
  • Computer list of annotated cases

• See also:
  • UNCITRAL digest

  • UNCITRAL digest + added cases
  • Leonardo Graffi, Case Law on the Concept of "Fundamental Breach" in the Vienna Sales Convention, Revue de droit des affaires internationales / International Business Law Journal, No. 3 (2003) 338-349

  • Martin Karollus [Austria], excerpt from Judicial Interpretation and Application of the CISG in Germany 1988-1994, Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

  • Hypothetical case involving avoidance: comments on Article 49(b)(1) and on avoidance in general by Peter Schlechtriem, Harry M. Flechtner, John O. Honnold, Kazuaki Sono and others

  • Peter Schlechtriem [Germany], in: Uniform Sales Law in the Decisions of the Bundesgerichtshof (2001), at Section III.1

• For a companion report on CISG case law and other material, go to Unilex: click for description of and link to this excellent service

• Selected monographs and anthologies
• Comments on Article 49 by Jacob S. Ziegel [Canada] at 1984 Parker School seminar of the American Association for the Comparative Study of Law: Ch. 9, pp. 12-16

• Comments on Article 49 from seminal 1986 text by Peter Schlechtriem [Germany]

• Comments on Article 49 from monograph by Jacob S. Ziegel [Canada]

• Comments on Article 49 by Michael R. Will [Germany] in 1987 Bianca-Bonell Commentary on the International Sales Law
• Comments on Article 49 by John O. Honnold [U.S.] in the 3rd ed. (1999) of the most frequently cited text on the CISG: Uniform Law for International Sales
• Comments on Article 49 in December 2000 text by Joseph Lookofsky [Denmark / U.S.]
• Commentarios al Articulo 49 sobre textos de 2001 por Pilar Perales [España]

• Perspectives on the Concept of Fundamental Breach and Perspectives on the Right to Avoidance: Chengwei Liu [China], 2nd ed. case annotated updates (May 2005)
• See also the helpful Enderlein & Maskow text (cited below under the words and phrases section of this Annotated Text material)
• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries
• J. Khaled Abd El Hamid, Fask' a'aqd al be' al dawli lel badae' wefkan le itefakeyet Vienna l'am 1980 [The Avoidance of the Contract for International Sale of Goods according to the Vienna Convention 1980 - in Arabic], Doctoral thesis Cairo University (2001) 2d ed. 628 p.
• Andrew Babiak [U.S.], Defining "Fundamental Breach" Under the United Nations Convention on Contracts for the International Sale of Goods, 6 Temple International and Comparative Law Journal (1992) 113-143
• Maartje Bijl [Netherlands], Fundamental breach in Documentary Sales Contracts: The Doctrine of Strict Compliance with the Underlying Sales Contract, 1 European Journal of Commercial Contract Law (1/2009) 19-28
• John W. Carter [Australia], Party Autonomy and Statutory Regulation: Sale of Goods [Commentary on rights of termination and rejection: Impact of the CISG on Australian, English and Canadian law], 6 Journal of Contract Law, North Ryde NSW, Australia (1993) 93-122
• Fritz Enderlein [Germany (DDR)], Rights and Obligations of the Seller under the UN Convention on Contracts for the International Sale of Goods [General obligations: Art. 30], in Sarcevic / Volken ed., International Sale of Goods: Dubrovnik Lectures, Oceana (1996) at 195-196

• 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

• Peter Huber [Germany], CISG: The Structure of Remedies, 71 Rabels Zeitschrift für ausländisches und internationals Privatrecht (January 2007) 13-34

• Mirghasem Jafarzadeh [Iran], Buyer's Right to Withhold Performance and Termination of Contract: A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law (December 2001) 147 p.

• Anna Kazimierska [Poland (Thesis: Netherlands)]. The Remedy of Avoidance under the Vienna Convention on the International Sale of Goods (Pace essay submission) [text being processed for publication]

• Robert Koch [Germany], The Concept of Fundamental Breach under the United Nations Convention on Contracts for the International Sale of Goods, in: Pace ed., Review of the Convention on Contracts for the International Sale of Goods (CISG) 1998, Kluwer Law International (1999) 177-354

• Ari Korpinen [Finland], On legal uncertainty regarding timely notification of avoidance of the sales contract (June 2004)

• Francis A. Miniter [Canada], Buyer's Right of Rejection: A Quarter Century Under the Uniform Commercial Code and Recent International Developments, 13 Georgia Law Review (1979) 805-848

• Alastair Mullis [England], Termination for breach of contract in C.I.F. contracts under the Vienna Convention and English Law: Is there a substantial difference, in: Lomnicka / Morse ed., Contemporary Issues in Commercial Law (Essays in honor of Prof. A.G. Guest), Sweet & Maxwell: London (1997) 137-160

• Tobias Plate [New Zealand], The Buyer’s Remedy of Avoidance under the CISG: Acceptable from a Common Law Perspective?, 6 Vindobona Journal of International Commercial Law and Arbitration (2002) 57-82

• Peter Schlechtriem [Germany], Subsequent Performance and Delivery Deadlines -- Avoidance of CISG Sales Contracts Due to Non-conformity of the Goods, 18 Pace International Law Review, Issue No. 1, Spring 2006 (forthcoming)
• Ingeborg Schwenzer [Germany / Switzerland], Avoidance of the Contract in Cases of Non-Conforming Goods [article based on paper given by the author at the Conference held in Vienna on 15-18 March 2005 on the topic 25 Years United Nations Convention on Contracts for the International Sale of Goods (CISG) and 20 Years UNCITRAL Model Law on International Commercial Arbitration], available online at <http://25.cisg.info/content/publikation.php?id=13>
• Ingeborg Schwenzer [Germany / Switzerland], The Danger of Domestic Preconceived Views with Respect to the Uniform Interpretation of the CISG: The question of avoidance in the case of non-conforming goods and documents, Victoria University of Wellington Law Review (2005/4) 795-807
• Ingborg Schwenzer [Germany / Switzerland], Damages: Avoidance of the Contract in Case of Non-Conforming Goods (Article 49(1)(a) CISG), 25 Journal of Law and Commerce (2005-2006) 437-442

• Jianming Shen [China], Declaring the Contract Avoided: The U.N. Sales Convention in the Chinese Context, 10 New York International Law Review (1997) 7-57

• Lachmi Singh, United Nations Convention on Contracts for the International Sale of Goods (1980) [CISG]: An examination of the buyer’s right to avoid the contract and its effect on different sectors of the (product) market (February 2006)

• Aneta Spaic [Montenegro], Approaching Uniformity in International Sales Law: Comparative Analysis of the Concept of Fundamental Breach under the UN Convention on Contracts for the International Sale of Goods (December 2006)

• Alison E. Williams [United Kingdom], Forecasting the Potential Impact of the Vienna Sales Convention on International Sales in the United Kingdom, in: Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer Law International (2001) [See Section III.1]

• Katrina Winsor [New Zealand], The Applicability of the CISG to Govern Sales of Commodity Type Goods, 14 Vindobona Journal of International Commercial Law and Arbitration (1/2010) 83-116

• Bruno Zeller [Australia], The Remedy of Fundamental Breach and the United Nations Convention on the International Sale of Goods (CISG) - A Principle Lacking Certainty?, 11 Vindobona Journal of International Commercial Law and Arbitration (2/2007) 219-236

• Bruno Zeller [Australia], Commodity Sales and the CISG, in: Camilla B. Andersen & Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (2008) 627-639
• Jacob S. Ziegel [Canada], Commentary on Party Autonomy and Statutory Regulation: Sale of Goods, 6 Journal of Contract Law, North Ryde NSW, Australia (1993) 123-150
• Supplementary list of citations to Article 49 commentaries: Unilex citations*

  * Most members of the Autonomous Network of CISG Websites also offer bibliographies. Many are tailored, concentrating on commentaries by authors from or writing on CISG issues of special interest to specific countries or regions; some, e.g. CISG online are general and extensive; some, e.g., CISG-Belgium and CISG-Finland also list commentaries by individual articles of the CISG.

• To identify other relevant commentaries, go to the cisgw3 Bibliography and Bibliography Search Form [avoidance, cancellation, rescission, termination, fundamental breach and remedies are search form entries you may wish to consider]

  Bibliography citations on fundamental breach

  Citations on cancellation

  Citations on avoidance

  Citations on remedies

  Citations on termination

  Citations on rescission

  We also encourage you to tailor your own cisgw3 bibliography search to the specific aspect of this article that you are researching.*

  * The cisgw3 bibliography contains over 500 pages of citations. Analyzing these listings can pay dividends.

Links to related articles

Attention to related articles and to the CISG in its entirety is important. This is an autonomous law, i.e., it is meant to be construed within its four corners. When considering aspects of the CISG, because this law relies heavily on general principles, one ought to look at related provisions and the CISG in its entirety.

• For provisions cited in Article 49, go to Annotated Text of Article 47 [Buyer's notice fixing additional final period for performance]; and go to Annotated Text of Article 48 [Cure after date for delivery: request for clarification].

• For counterpart provision on seller's right to avoidance, go to Annotated Text of Article 64. For a collection of links to articles that pertain to avoidance, go to Annotated Text of Article 25 [Definition of "fundamental breach"].

Words, phrases and concepts

• The Enderlein & Maskow text is a good place to commence words and phrases research. Click for their analysis of words, phrases and concepts in this article.

  See also:

• State of knowledge ("ought to have known" [49(2)(b)(i)]: link to same language and to variations on this theme recited elsewhere in the CISG

• reasonableness [49(2)]: 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

For a Doctoral thesis on "Reasonableness" in International Commercial Law, go to Guillaume Weiszberg, Le "Raisonnable" en Droit du Commerce International [pour le doctorat en droit de l’Université Panthéon-Assas (Paris II), 7 novembre 2003]