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GUIDE TO ARTICLES 63 & 64(1)(b)

Comparison with Principles of European Contract Law (PECL)


Match-up of CISG Articles 63 and 64(1)(b) with PECL Article 8:106
CISG Article 63

(1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations. (2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance.


CISG Article 64(1)(b)

The seller may declare the contract avoided . . . if the buyer does not, within the additional period of time fixed by the seller in accordance with paragraph (1) of article 63, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed.


[The notes to PECL 8:106 state: "The rule contained in Article 8:106 of the Principles is also adopted by . . . CISG (arts. 47, 49(1)(b), 63 and 64(1)(b))."]

PECL Article 8:106 [Notice Fixing Additional Period for Performance] (complete and revised version 1998)

(1) In any case of non-performance the aggrieved party may by notice to the other party allow an additional period of time for performance.

(2) During the additional period the aggrieved party may withhold performance of its own reciprocal obligations and may claim damages, but it may not resort to any other remedy. If it receives notice from the other party that the latter will not perform within that period, or if upon expiry of that period due performance has not been made, the aggrieved party may resort to any of the remedies that may be available under chapter 9.

(3) If in a case of delay in performance which is not fundamental the aggrieved party has given a notice fixing an additional period of time of reasonable length, [page 372] it may terminate the contract at the end of the period of notice. The aggrieved party may in its notice provide that if the other party does not perform within the period fixed by the notice the contract shall terminate automatically. If the period stated is too short, the aggrieved party may terminate, or, as the case may be, the contract shall terminate automatically, only after a reasonable period from the time of the notice.


Definitions

For the PECL definition of "non-performance", go to PECL art. 1:301(4) and the comment and notes that accompany this definition. For the PECL definition of "fundamental non-performance", see the match-up of CISG art. 25 with PECL art. 8:103. For the PECL definition of "reasonableness", go to PECL art. 1:302 and the comment and notes that accompany this provision.


Editorial remarks

EDITOR: Bruno Zeller, Victoria University of Technology, Melbourne, Australia

-- Scheme of CISG articles 63 and 64(1)(b)

CISG articles 63 and 64(1)(b) are part of the regime of remedies of breach of contract within the CISG, which in general can be divided into two categories. Firstly, remedies where the contract can be terminated or avoided such as fundamental breach and secondly, remedies where the contract is still in force such as damages.

Articles 63 and 64(1)(b) are provisions which span both remedies through the principle of "Nachfrist" which is the granting of additional time by the seller to the buyer to perform his obligation to pay the price or take delivery of the goods. The principle has been mainly borrowed from German domestic law as well as from the French procedure of mise en demeure. However there are significant differences between the German and French treatment of Nachfrist and the one accorded to in the CISG. This is a good point to remind ourselves of the mandate of article 7(1) where uniformity of application demands the autonomous interpretation of the CISG, that is, without relying on principles founded in domestic law. In other words, German and French treatment of Nachfrist and mise en demeure must be ignored and cannot be used to explain the principle within the CISG despite significant similarities in doctrine and jurisprudence.

Common law attorneys may find the concept of Nachfrist foreign as it has no direct common-law counterpart. In brief, the various Sale of Goods Acts do not rely on the principle of "fundamental breach". They rather approach avoidance of contract through the breach of contractual terms, that is, breach of a major term or a condition. For remedies of breach of contract by the seller, see the editorial remarks on article 47 and 49(1)(b). However, under the Sale of Goods Acts the remedies available for a breach of contract are not the same when the buyer is in breach. The seller cannot treat the breach as a cause to repudiate the contract. He can only recover the price of the goods as an ordinary debt. Where ownership has not passed and the buyer refuses to accept the goods, the buyer again can only sue for damages. The seller additionally has also a right against the goods namely lien and stoppage in transitu.

It is therefore of importance that common law attorneys have a good grasp of the concept of Nachfrist as in the CISG both buyer and seller can terminate the contract under the principle of fundamental breach. Nachfrist gives the buyer additional time to perform his part of the bargain. If he fails to do so the seller can avoid the contract in accordance with article 64(1)(b).

The purpose behind the flexible remedy of Nachfrist is that the CISG, as one of its principles, attempts to keep the contract afoot as long as there is a possibility to perform contractual obligations. This is in line with the attempt to overcome some of the problems of distance, expense and time in having an international contract terminated where, operating under another general principle of the CISG, namely good faith, remedial action could have been possible, resulting in a win-win situation.

-- Meaning and purpose of Nachfrist

The idea behind Nachfrist is that the seller should not be able to avoid the contract merely because the goods are not accepted or payment is not made on time. A contract can be avoided under the principle of fundamental breach as defined in CISG article 25. Under certain circumstances, such as when time is of the essence, late payment or refusal to accept goods may become a fundamental breach. Article 63 in itself is not a remedy, it clarifies a situation which otherwise would be unclear. If the seller is in a situation where there is uncertainty as to the existence of a reason to avoid the contract, he can overcome this by fixing a Nachfrist. As far as the buyer is concerned the additional period is a final period, however, the seller is not barred from fixing additional periods if he so wishes or if he wants to respond to the buyer's request for additional time.

The importance the CISG places in reading provisions within the context of the Convention is clearly demonstrated in this instance. Article 63 is closely linked to article 64(1). In article 64(1)(a) the seller is entitled to avoid the contract if the failure of the buyer amounts to a fundamental breach. Late payment or refusal to accept delivery unless time is of the essence does not amount to a fundamental breach. A seller may not be certain whether late payment may be construed as a fundamental breach but by fixing a Nachfrist this problem is overcome as the seller now can rely on article 64(1)(b) which takes away the uncertainty. The only uncertainty is the question of "reasonable length" of the additional period of time fixed by the seller. The seller will have assistance in such a definition through article 9 (customary practices) or article 6 (definition of additional time is a clause in the contract) as well as article 8 (previous conduct or statements made by parties). Most importantly, the seller will rely on the general principle of reasonableness as well as the principle of good faith, which is contained in article 7. An Austrian case can be used to illustrate the above. The seller declared the contract avoided after the buyer failed to pay the price without fixing a Nachfrist. The court found that there was no need to fix such a period as the buyer implicitly agreed to the avoidance of the contract.

While the additional period is in existence the seller can only rely on damages for late payment or refusal to accept delivery but most importantly, the buyer is protected while he is making efforts to remedy the situation.

-- Comparison of PECL article 8:106 with CISG articles 63 and 64(1)(b)

At first glance the two systems have a remarkable similarity but are also subtly different. The first point to note is that PECL also introduced Nachfrist as an important concept in contractual relations. The mere inclusion indicates that the CISG was correct in its assessment that the concept of Nachfrist is important in an international contractual relationship. The second point is a confirmation of the foresight of the CISG because PECL did not introduce major changes but as indicated above only subtle differences. From this we can deduce that the concept of Nachfrist as introduced by the CISG was correct and is of importance in international sales.

The CISG as well as PECL recognize the difference between non-performance which amounts to a fundamental breach and a non-performance which is not serious enough to constitute a fundamental breach. PECL like the CISG allows the seller who is not sure whether non-performance amounts to a fundamental breach the ability to avoid the contract by allowing him to set an additional period of time to perform the contract. In SARL Ego Fruits v. Ste La Verja Begastri the court held that the buyer would not have understood that a delay of a few days in taking delivery would amount to a fundamental breach. As the seller did not allow for a Nachfrist, his unilateral avoidance was a wrongful termination of the contract.

Both the CISG and PECL recognize that two conditions must be met. Firstly, the period must be fixed. Secondly, the period so fixed must be reasonable. What amounts to a reasonable time is a question of fact and is left to the courts to decide. An ICC Arbitration Case provides an interesting example of how a period can be fixed. A. Kritzer in his commentary pointed out that commentators have a conflicting view as to the fixing of additional period. The debate is whether it must be done "in such a way as to make it clear to the buyer that the additional period sets a fixed and final limit on the date for performance or whether no such unequivocal warning is necessary." The ICC tribunal declared that the period between the buyer's default and the declaration of avoidance after several months by the seller was "an additional period" pursuant to article 63. In effect, an implied Nachfrist can be construed in some circumstances as being sufficient to satisfy the requirements of article 63.

In any event, good faith which is a principle in both the CISG and PECL, will also influence the court in its decision. However, PECL in its commentary makes it clear that if less than reasonable time was fixed, the aggrieved party "need not serve a second notice; it may terminate after a reasonable time has elapsed from the date of the notice." As far as the CISG is concerned, no jurisprudence has solved this issue, however, it can be argued that a court would invoke good faith and could set a date which fulfills the requirements of the principle of reasonableness.

One area of uncertainty within the CISG has been removed in PECL by clearly stating that the buyer may withhold his own performance while an additional period of time is fixed. Another point well worth noting is the different terms used. In the CISG it is the seller who may fix a time whereas in PECL it is the aggrieved party, which can be buyer or seller depending on the circumstances. Such a variance makes sense as unlike the CISG, PECL also covers contracts of service. Furthermore PECL has managed to cover in one article substance which in the CISG is contained in articles 47, 49(1)(b), 63 and 64(1)(b). In the CISG the former articles cover the remedies open to the buyer and are reviewed in this database in the discussions on that subject.

-- Conclusion

The principle of Nachfrist must be viewed in two ways, firstly as a mandate within the CISG but secondly also as another example of the "sea change in the landscape of international trade." Not only is "additional period of time" contained in basically the same form in PECL but also in the UNIDROIT principles. It is the domestic systems of law and specifically the common law, which is out of step with international developments. The reality is that there is a drastic change in the market place for legal services. PECL in a subtle way will be shaping English common law practices and it will not be too far in the future when English courts need to deal with concepts such as Nachfrist. The fact that the concept of Nachfrist has been included in various international laws indicates that certainty now has a brother, namely flexibility.

Globalization requires that legal rules must be flexible in order to be applicable to changing circumstances and avoid costly disputes in circumstances, which could have been solved by an instrument like Nachfrist. Common law attorneys must become aware of the existence and basic content of different concepts contained in uniform international law, the CISG, an in international "Restatements" of the law, the PECL and UNIDROIT Principles, because they will be shaping the rules for contractual dealings in the future.

[See also commentary by the author on this subject in: John Felemegas ed., An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law, Cambridge University Press (2006) 436-439.]


Comment and notes on PECL 8:106

Like the commentaries to the UNIDROIT Principles and the U.S. Restatements, the comments to the PECL help explain the text. The PECL notes identify civil law and common law antecedents and related domestic provisions. With the permission of the Commission on European Contract Law, these comments and notes are presented below. The source of this material is Ole Lando & Hugh Beale eds., Principles of European Contract Law: Parts I and II, Kluwer Law International (2000) 372-377.


COMMENT AND NOTES: PECL Article 8:106: Notice Fixing Additional Period for Performance

(1) In any case of non-performance the aggrieved party may by notice to the other party allow an additional period of time for performance.

(2) During the additional period the aggrieved party may withhold performance of its own reciprocal obligations and may claim damages, but it may not resort to any other remedy. If it receives notice from the other party that the latter will not perform within that period, or if upon expiry of that period due performance has not been made, the aggrieved party may resort to any of the remedies that may be available under chapter 9.

(3) If in a case of delay in performance which is not fundamental the aggrieved party has given a notice fixing an additional period of time of reasonable length, [page 372] it may terminate the contract at the end of the period of notice. The aggrieved party may in its notice provide that if the other party does not perform within the period fixed by the notice the contract shall terminate automatically. If the period stated is too short, the aggrieved party may terminate, or, as the case may be, the contract shall terminate automatically, only after a reasonable period from the time of the notice.

Comment

A. General

Article 8:106 in effect contains two rules:

(1) Even where the aggrieved party has an immediate right to terminate because of the other's non-performance, if the aggrieved party has indicated that it is still prepared to accept performance, it may not change its mind without warning.

(2) Where there has been a delay in performance but the delay is not fundamental (because time was not of the essence and the delay has not yet had serious consequences for the aggrieved party) the aggrieved party may terminate the contract after having given the non-performing party reasonable notice.

Two preliminary points need to be borne in mind:

(1) Under the Principles there is no need for the aggrieved party to serve a notice on the non-performing party in order to put the latter into breach (cf Mahnung, Mise en demeure: see notes to Article 8:101 above).

(2) Under the Principles termination is an act of the aggrieved party, not an act of a court or arbitrator. Provided there has been a fundamental non-performance or the other conditions for termination are met (see Articles 8:103 and 8:105) the aggrieved party may terminate by giving notice of termination to the non-performing party (see Article 9:303 below).

When there has been a non-performance by one party (the debtor), the other (the aggrieved party) may always fix an additional period of time for performance. During the period fixed the aggrieved party may not take further action against the debtor; it may withhold its own performance and it may claim damages for the delay in performance or other losses caused by the non-performance, but it may not seek specific performance or terminate the contract during the period of notice.

Illustration 1: A company leases a new car to B for 2 years, and B collects it from the company's premises. The car breaks down and B has to have it towed back to the company's premises. The defect in the car amounts to a fundamental non-performance but B tells the company that he will accept the car if it is fixed within 3 days. B may refuse to pay the rental and may claim damages for any inconvenience in not having the car while it is repaired and for the cost of the tow, but he may not demand delivery of another car or terminate unless the car is not repaired and redelivered within the 3 days. [page 373]

B. Setting a time-limit for performance in cases of non-fundamental delay

Not every delay in performance will constitute a fundamental non-performance within Article 8:103 and thus the aggrieved party will not necessarily have the right to terminate immediately merely because the date for performance has passed. It will only have this right if time was 'of the essence'. In cases of non-fundamental delay, however, Article 8:106(3) allows the creditor to fix an additional period of time of reasonable length for performance by the debtor. If upon expiry of that period of time performance has not been made, the aggrieved party may terminate the contract, see Article 9:301(2). This case is probably the one in which the notice procedure will be used most frequently.

Illustration 2: C employs D to build a wall in C's garden. The work is to be completed by April 1st but prompt completion is not fundamental. By that date D has not completed the work and appears to be working very slowly. Less than a week's work is necessary to complete the wall. C may give D a further week in which to complete the wall and, if D does not do so, C may terminate the contract.

The notice procedure can also be used when it is the aggrieved party who is to perform a service but the other party has refused to accept or to allow performance.

Illustration 3: E employs F to decorate the interior of an empty apartment owned by E but E fails to give F a key to the apartment by the date on which it was agreed that F should start work. F may give E a reasonable time in which to arrange access for F and, if E fails to do so, F may terminate the contract.

It should be noted that Article 8:106(3) applies even if the non-performance is excused because of a temporary impediment under Article 8:108(2).

C. Fixing an additional period for performance in other cases.

In other cases the notice procedure does not give the aggrieved party any additional rights but is nonetheless useful. Even where the delay or other non-performance is fundamental, and thus the aggrieved party has the right to terminate immediately, it may not wish to do so: it may be prepared to accept a proper performance by the debtor provided it is rendered within a certain period. The procedure set out in Article 8:106 permits it to give the debtor a final chance to perform (or to correct a defective performance), without the aggrieved party losing the right to seek specific performance or to terminate if by the end of the period of notice the debtor has still not performed in accordance with the contract. At the same time, however, the rule that the aggrieved party may not seek specific performance or terminate during the period of notice protects the debtor from a sudden change of mind by the aggrieved party. The debtor may have relied on having the period set in the notice in which to perform.

The notice procedure may also be used when a performance is prompt but defective in a way which is not fundamental. In such a case the aggrieved party will not [page 374] have the right to terminate and serving a notice fixing an additional time for performance will not give it that right, because Article 8:106(3) applies only to delayed performance, not to defective performance.

Illustration 4: A finance company has leased to B a photocopy machine which it warranted could make 100 copies of a page a minute. B's tests reveal that it makes 98 copies a minute. If the defect is not a fundamental one under Article 8:103, B cannot apply the notice procedure to terminate the contract.

Nonetheless, serving a notice may still perform the useful functions of informing the debtor that the aggrieved party still wants proper performance and of giving the debtor a last chance before the aggrieved party seeks specific performance. In these respects the notice serves the same function as a mise en demeure in French law or Mahnung in German law, though under these Principles the aggrieved party is not required to serve a notice before exercising a remedy except in the case of termination for non-fundamental delay (see comment B. above).

D. When the notice must be for a definite reasonable period

When a notice fixing an additional period for performance is served after a non-fundamental delay, it will only give the aggrieved party the right to terminate if, first, it is for a fixed period of time, and secondly, if the period is a reasonable one.

If the notice is not for a fixed period of time it may give the defaulting party the impression that it is free to postpone performance indefinitely. It will not suffice to ask for performance "as soon as possible". It must be a request for performance "within a week" or "not later than July 1". The request must not be couched in ambiguous terms; it is not sufficient to say that "we hope very much that performance can be made by July 1".

Because in cases of non-fundamental delay the notice procedure is conferring an additional right on the aggrieved party, the period of notice must be reasonable. If the aggrieved party serves a notice of less than a reasonable period it need not serve a second notice; it may terminate after a reasonable time has elapsed from the date of the notice. (On what is a reasonable time see comment E. below).

In cases other than non-fundamental delay the aggrieved party is granting a concession to the debtor. Here the aggrieved party can give the debtor as long or as short a period as it chooses, though having done so it will not be able to resort to termination or specific performance within that period. It may serve a notice which fixes an ambiguous deadline for example, "Please perform as soon as possible". In this case it may not terminate or seek specific performance unless the non-performance has continued for long enough that it would be consistent with good faith for the aggrieved party to terminate despite its earlier notice.

E. What period of time is reasonable?

The determination of which period of time is reasonable must ultimately be left to the court. Regard should be had to several factors such as:

- the period of time originally set for performance. If the period is short, the additional period of time may also be short; [page 375]

- the need of the aggrieved party for quick performance, provided that this is apparent to the defaulting party;

- the nature of the goods, services or rights to be performed or conveyed. A complicated performance may require a longer period of time than a simple one;

- the event which caused the delay. A party which has been prevented from performance by bad weather should be granted a longer respite than a party which merely forgot its duties.

F. The aggrieved party may provide for automatic termination

When upon expiry of the period of time fixed for performance the defaulting party has not performed, or when it has declared before that time that it will not perform, the aggrieved party may declare the contract terminated. However, the aggrieved party may provide for automatic termination. It may say in its notice that the contract shall terminate without further notice if the defaulting party fails to perform within the period of the notice.

If the defaulting party in fact tenders performance after the date set in the notice, the aggrieved party may simply refuse to accept it. However, if the aggrieved party actually knows that the defaulter is still attempting to perform after the date, good faith requires it to warn the defaulter that the performance will not be accepted. If the defaulting party asks the aggrieved party whether it will accept performance after the date set, good faith requires the aggrieved party to give an answer within a reasonable time (see Article 1:201).

Notes [Match-ups with Continental and Common Law domestic rules, doctrine and jurisprudence]

1. The aggrieved party who gives extra time but changes his mind

The first situation covered by Article 8:106, the case of the aggrieved party who indicates that he will still accept tender of performance or the cure of a defective performance but then changes his mind, gives rise to little problem in systems such as the FRENCH or SPANISH where a court order is needed for termination (French CC art. 1184(3); Spanish CC art. 1124(3)): instead of terminating the contract at once the court can simply grant a further delay for performance (see Treitel, Remedies § 247).

Systems such as the COMMON LAW which allow termination by simple notice without prior warning have often developed rules to prevent a sudden change of mind by the aggrieved party; e.g. the Common law rule that if the aggrieved party has "waived" his right to terminate for the time being he can only withdraw the waiver by giving reasonable notice: Charles Rickards Ltd v. Oppenhaim [1950] 1 K.B. 616 (C.A.).

CIVIL LAW systems also recognise that the aggrieved party should not be allowed to terminate during the period in which he indicated that he would still accept performance: e.g. AUSTRIAN law, e.g. OGH 21 December 1987, SZ 60/287; 12.3.1991 JBI 1992, 318; FINNISH and SWEDISH Sale of Goods Acts, §§ 25(3), 54(3) and 55(3); GREEK law (Michaelides Nouaros Erm.AK vol.II/1 art. 383 nos. 17-18 (1949). The aggrieved party may also be barred from seeking performance in natura, as, for example, in ITALIAN law (cc art. 1454(3)). It is often recognised that the aggrieved party may resort to termination immediately, however, if the other party indicates that he will not perform within the time allowed (GREEK law, ibid., no. 18; GERMAN law Zweigert & Kötz 493-494).

A rule preventing the aggrieved party suddenly changing his mind may be inferred from ULIS art. 44(2); it is explicit in CISG arts. 47(2) and 63(2).

2. Termination for delay in performance

Several systems provide that even if the aggrieved party has no immediate right of termination for delay (because for instance in Germany there was no Fixgeschäft or in England time "was not of the essence"), the right to terminate may be acquired by giving the other party a reasonable time in which to perform, provided that the obligation which remains unperformed at the end of the period of notice is sufficiently serious to warrant termination. [page 376]

The best known device, and the one which has inspired Article 8:106, is the GERMAN Nachfrist. This applies to all kinds of delay in performance except impossibility, Fixgeschäft or where the non-performing party has repudiated; nor does it apply to positive Vertragsverletzung. The Nachfrist is primarily aimed at protection of the debtor (see Treitel, Remedies § 245) but the practical effect is the same as that of Article 8:106 of the Principles. Like Article 8:106, the German rule will in general apply if the defaulting party is in delay in performing a major obligation (Hauptflicht); the aggrieved party may then withdraw from the contract or claim damages for non-performance. If the defaulting party does not comply with a minor obligation, the aggrieved party can only avail himself of the Nachfrist procedure if the breach of that obligation imperils the purpose of the whole transaction (Staudinger-Otto § 326 no. 185). In requiring that the Nachfrist make clear to the non-performing party that the aggrieved party will refuse to accept performance at the end of the period, German law may appear to be stricter than the Principles, but under the Principles an aggrieved party would not be allowed to rely on a notice which was not clear (Article 1:201 Good Faith and Fair Dealing).

Some other systems, e.g. AUSTRIAN and PORTUGUESE law, follow the German model closely, but very different systems also produce close parallels. The FINNISH and SWEDISH Sale of Goods Acts. §§ 25(2), 54(2) and 55(2) give a right to terminate after expiry of a Nachfrist. In COMMON LAW the aggrieved party may sometimes be able to "make time of the essence" once the date for performance has passed by serving on the non-performing party a notice to perform within a reasonable time; if the non-performance continues the aggrieved party may terminate at the end of the period. There is some doubt as to the scope of the rule: the traditional view is that it applies only to certain categories such as sale of land and sale of goods (see Treitel, Remedies § 249) but the House of Lords has on two recent occasions approved a passage from Halsbury 9 § 481 which states as a general rule that a party may make time of the essence by serving a reasonable notice on the defaulting party, just as Article 8:106(3) envisages (United Scientific Holdings Ltd v. Burnley Borough Council [1978] A.C. 904; Bunge Corp. v. Tradax SA [1981] 1 W.L.R. 771; for Scotland see Rodger (Builders) v. Fawdry 1950 S.C. 483 (I.H.)). Under the DANISH Sale of Goods Act the aggrieved party can always terminate the contract in case of a fundamental non-performance, and may do so without having given the non-performing party a Nachfrist. In other contracts a notice of a reasonable length may sometimes make time of the essence, see Gomard, Obligationsret II 103 ff.

The idea that the aggrieved party may terminate for non-fundamental delay after giving reasonable notice is not accepted by all systems: for instance it is unknown to FRENCH law, though remedies for non-performance, as a rule, can only be administered if the defaulting party has received a notice demanding performance (mise en demeure, art. 1146 and 1139 C. civ.). In SPANISH law delay justifies termination only if it is fundamental or frustrates the purpose of the contract, according to case-law (Supreme Court 5 January 1935; see Diez Picazo II, 714.) In such cases prior warning to the debtor is not required (Lacruz-Delgado, II, 1 § 36, 201). However many Civil law systems have accepted rules permitting termination after notice (e.g. GREEK CC art. 383 sent. 1; ITALIAN CC art. 1454(1), (3)).

In BELGIUM doctrine and case law now accepts that sometimes termination may be effected by the aggrieved party; whether notice has been given to the other party is a relevant factor, though it is not necessary if the non-performing party has indicated that it will not perform. See De Page II, no. 891; Cass. 24 March 1972, Arr. Cass., 707; Cass 17 Jan. 1992, TBH/RDC 1993, 239.

The rule contained in Article 8:106 of the Principles is also adopted by ULIS (arts. 27(2), 44(2), 62(2) and 66(2)) and by CISG (arts. 47, 49(1)(b), 63 and 64(1)(b)).

There are differences in detail between the various national rules. For instance in GERMAN law at the end of the notice period the aggrieved party loses his right to seek performance in natura unless previously he has extended the Nachfrist, whereas in COMMON LAW the aggrieved party can probably simply set a fresh period of time. In German law a notice which was too short will automatically be extended, so that the aggrieved party may still terminate after a reasonable time, unless the period set was so short that it indicated a lack of good faith (see Treitel, Remedies § 245); in Common law a fresh notice may have to be served, as a notice which is too short seems to be treated as having no effect (e.g. Behzadi v. Shaftesbury Hotels Ltd. [1992] Ch. 1, C.A.

See generally Zweigert & Kötz 492-494; Treitel, Remedies § 252. [page 377]

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