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Article 49

(1) The buyer may declare the contract avoided:

(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.

COMMENT

1. The difference between the a priori characterization of terms in the OSGA and the treatment of breaches in CISG has been explained, supra, in the analysis of art. 25. Art. 49(1) flows logically from CISG's remedial approach and, if severity of the breach is accepted as a sound test, then there should be no difficulty in accepting art. 49(1). Note too that, unlike OSGA 12(3), art. 49 draws no distinction between a sale of specific and a sale of future goods and, for the purposes of avoidance, attaches no importance to the locus of title.

2. Art. 49(2) adopts the reasonable principle that the remedy of avoidance must be exercised within a reasonable period of time and is a logical consequence of the wider rule in art. 50 (1). Similar rules apply at common law. See OSGA 34 (duty to reject defective goods within reasonable period of time) and OSGA12(1) (waiver of breach of condition).

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