A comparative analysis between the Brazilian Law and the 1980 United
Nations Convention on Contracts for the International Sales of Goods [*]
Gustavo Vieira da Costa Cerqueira [**]
The object of this essay is to study the legal regime of "defective performance", comparing the contexts of the Brazilian Law and the Convention on Contracts for the International Sale of Goods, in order to identify how each of these legal frameworks deals with the issue of performance's non-conformity -- in regard to both its general applicability and buyer's remedies -- considering the Convention's applicability in Brazilian Courts.
"Ninguna nación puede ser tãn vanidosa que pretenda
poseer toda la sabiduría y toda la excelsitud.
Ninguna nación es tan humilde como para que sus costumbres,
sus leyes e sus normas no ofrezcam muchas
cosas instructivas, y algo digno de imitación."
(Joseph Story) 
The present essay  aims at analyzing the concept of defective performance in contracts for the international sale of goods. The paradigm to carry out this analysis is the United Nations Convention on Contracts for the International Sale of Goods, signed in Vienna on April 11, 1980. This important Convention is deemed to be the uniform law on the matter.
The election of the Vienna Convention as a paradigm for the comparative analysis as to Brazilian law derives from the fact that this Convention provides for several categories of lack of performance of obligations under contracts for the sale of goods, including defective performance. Moreover, the Convention is "an effective legal instrument in the process of harmonization of economic transactions among different countries".
The defective performance categoryis deemed to be an intermediary category (tertius genus) in the breach of contract doctrine, and most part of civil law codifications are limited to providing for, or distinguishing between, only two breach of contract categories: non-performance and late performance. In Brazil both the 1916 Civil Code and the 1850 Commercial Code, though strongly influenced by the 18th century legal ideas that did not consider such breach of contract category, provided for defective performance. The new Civil Code  modifies the treatment given to the matter by reformulating the language of art. 1.056 of the 1916 Civil Code without excluding, however, the possibility of that breach category as far as performance contracts are concerned.
The Vienna Convention expressly provides for the availability of a defective performance claim. The claim derives from obligations imposed on the parties and particularly the duty to preserve the goods (an issue that will be dealt with later on). Such framework appears to be an important tool for our analysis, in part because the Convention aims at achieving wide applicability. The Convention has a mechanism that may render it applicable, even though the contracting parties are based on States that have not ratified it: Art. 1(1)(b) provides for its applicability when the rules of private international law lead to the application of the law of a Contracting State.
Brazil has not adhered to the 1980 Vienna Convention yet. Nonetheless, pursuant to rules on applicable law as to obligations and contracts provided for in the Introduction to the Civil Code Act (art. 9 and 9(2)), the Convention may be applicable in Brazil because either the contract was concluded in a Contracting State or the party proposing the contract has his place of business in a Contracting State.
Art. 2 of Brazil's Arbitration Act also allows such possibility. That article, moreover, when providing for the criteria to be used by arbitrators in dispute references -- which may be settled either at law or in equity -- determines that the parties may freely elect the rules applicable to the case, provided that the elected rules are no contrary to good morals and public policy.
In the light of such application possibility, the matter gains particular relevance, as one considers that Brazil is taking part in the integration process established by the Asunción Treaty, and that Argentina, Uruguay and Chile (the former two countries being members of, and the latter an associate to, MERCOSUR) are signatories to the Vienna Convention (which is currently in force in the respective legal systems).
The Buenos Aires, July 23, 1998 Agreement on International Commercial Arbitration (Council Decision 3/1998) is already effective as within the economic area created by the Asunción Treaty. That agreement deals exclusively with international arbitration between private parties. It allows the parties to elect the law applicable to dispute settlements based on private international law as well as international trade law. If the parties remain silent as to the issue, the arbitrator has to decide in accordance with those principles (art. 10). From this another possibility for the Vienna Convention's applicability in Brazil ensues.
The possibility of application  is reinforced by the fact that Brazil has signed the Inter-American Convention on the Law Applicable to International Contracts, developed in the Fifth Inter-American Conference on Private International Law, held in Mexico in 1994. That Convention provides for the parties' election of the law applicable to their contract, unless they have their places of business in one of the signatory States.
Moreover, according to recommendation issued by the Fourth Inter-American Conference on Private International Law (Resolution 2/1989), the adherence to the Vienna Convention by States parties to the Organization of American States could, as recited by one commentator, "be a factor of harmonization and prevention of antinomies not only within MERCOSUR's scope, but also in relation to other countries and economic integration areas with which Brazil currently negotiates."
Finally, it is important to point out that Brazil recently adhered to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958) through Decree 4.311 of July 23, 2002, enacting the Convention with no reservations. The adherence to that important Convention allows the enforcement of an arbitral award entered against a contracting party whose place of business is in Brazil. This fact also stresses the need for a better understanding of the Uniform Law on international sale of goods by the Brazilian business and legal community.
In the light of such considerations, the comparative analysis of the defective performance legal doctrine as treated in both the Convention and Brazilian law may lead to the appreciation of how each one of these schemes deals with the issue of a non-conforming performance, particularly in relation to the cases to which it applies and its legal effects.
The analysis may, therefore, enable us to verify comparatively the advantages that each scheme may offer, as well as the language employed in each one of them and the respective scope of application. It should be considered that one and the same concept may be presented in different standards, conceived in distinct times in history, and the principles underlying each scheme may operate each in a particular way.
Emerging as an intermediary category in the breach of contract doctrine, the defective performance affirms its autonomy and comprises a number of cases that have one treatment under the Convention and another under Brazilian law.
The Convention, pursuing an enhanced legal scheme (that, in a sense, evolves from the 1964 Hague Conventions) is in line with current trends in including defective performance cases within the wider notion that is conveyed by the word conformity (art. 35).
In Brazilian law, the new Civil Code regulates the matter only in specific rules relating to redhibitory defects as far as bilateral contracts are concerned (art. 441 et seq.) and relating to eviction as to contracts that involve transfer of ownership, possession or use of property (art. 447 et seq.).
But even if the delivery of goods that are not free from rights of third parties could be deemed as a case of defective performance, this issue will not be included within the scope of this essay; it is regulated specifically in art. 447 et seq.
Before the Civil Code of 1916 was enacted, the Commercial Code of 1850 included provisions on redhibitory defects in commercial sale contracts (arts. 210 & 211). The rules established by such provisions are not much different from those included in the 1916 and 2002 Civil Codes.
It is convenient, at this point, to define defective performance, and to point out its constitutive elements.
Karl LARENZ  defines it as the contractual obligation that was performed in a neglectful, inadequate manner that caused damage to the creditor. On the other hand, the scholar considers the scope of the defective performance doctrine to be limited to cases in which the main obligation is "mis-performed", excluding from its scope "mis-performances" relating to obligations that are incidental to the duty of care (or duty of protection, as named by Heinrich STOLL).
As an example of defective performance, LARENZ alludes to a case where a contractor executes the renovation of a roof in such a terrible way that, as the first rain comes, considerable damage to the creditor's furniture are caused by the water. As an example of a breach of ancillary duties resulting from the contractual relation, the scholar comes up with the well-known incident where the constructor restores a wooden roof as contracted, performing fully and exactly the obligation. However, stepping down from the roof, he lights up a matchstick and, due to carelessness, ends up burning up the just renovated roof.
Mário J. de ALMEIDA COSTA conceives defective performance as an inexact performance, whose "damages do not arise out of omission or delay in fulfilling the obligation, rather of defects and deficiencies in the performance itself -- performance which is carried out but not in the way it should have been".
Differently from LARENZ, ALMEIDA COSTA understands that the defective performance doctrine is not limited only to the main obligation, but encompasses also ancillary duties. He adds that the performance is defective where there occur a particular type of damage to the creditor -- damage which "he would not sustain had the debtor not performed the promise; in other words, non-performance or late performance would not cause such damages."
PONTES DE MIRANDA asserts that "the promise may not be rendered or may lack conformity when rendered, then the act of rendering constituting bad performance."
Orlando GOMES, discussing the positive violation of credit doctrine, states that: "the defective performance doctrine, as ZITELMANN conceives it to be, is applicable in a situation in which the debtor does not perform at the place and in the way contracted for. One performs badly the obligation as she does not abide by agreed-on terms and conditions concerning the manner of performance. Those who so act violate at once credit."
Pursuant to Véra FRADERA, "a bad, unsatisfactory, or defective, performance is that in which there was lack of attention as to the ancillary duties deriving from the principle of good faith, duties which are part of the object devised by the contract, which are a 'plus' to which such object relates to."
An important definition is suggested by Ruy Rosado de AGUIAR JÚNIOR, when defining defective performance as an "imperfect performance". The scholar states that "the imperfect performance doctrine encompasses all contractual breaches relating to unsatisfactory or incomplete performance that gives rise to a ranging degree of dissatisfaction on the creditor's part. It presupposes that the performance is carried out, but not as agreed."
He also, in opposition to LARENZ, thinks that the defective performance doctrine encompasses not only the main obligation but also ancillary duties, affecting indirectly the main obligation.
Araken de ASSIS, as PONTES DE MIRANDA, calls defective performance bad performance, affirming that "the designation itself makes it evident that the obligor did perform, but -- and this defines the problem -- did so incorrectly."
Following ALMEIDA COSTA, ASSIS asserts that the lack of conformity between the conduct effectuated and the proper conduct does not lie on the identity or quantity of performance, because, if so, it would be characterized as a partial breach of the contract. However, from the proposition that the "breach of the contract encompasses, in the case, collateral and ancillary duties", it seems that the doctrine is only applicable to duties ancillary to the main obligation, excluding from its scope the main obligation.
Pedro R. MARTINEZ offers a complete notion; to him, every time the debtor performs her obligation in disagreement with the principles that govern the obligation's performance, she performs it defectively. That is to say, the obligation shall be fully and timely performed, when the debtor acts as the principle of good faith requires of her.
The Portuguese scholar also says, in a wide interpretation, that "defective performance corresponds to a lack of conformity between the proper performance and the one actually carried out." Criticizing the doctrine that considers it to be relative only to the performance's lack of quality, he teaches that "defective performance comprises lack of quality as well as defects. The latter has to do with non-conformity to a standard; the former, with non-conformity to agreed aspects."
Hence, "every time the debtor fulfills what she was bound to do, but her performance does not correspond to the proper one, the contractual violation may be characterized as defective performance." In one expression, "defective performance is a disorder in the contract reciprocity balance." This commentator concludes that "defective performance is not an autonomous contract guarantee, rather a form of violation of contract duties, be they primary, ancillary or collateral", in disagreement with LARENZ as to its scope.
Obligations considered as a process should be analyzed in their entirety, according to the teaching of Clóvis V. do COUTO E SILVA. Consequently, it seems that MARTINEZ  proposes under such perspective the observance of four conditions for the characterization of defective performance, which are: (a) violation of the principle of punctuality; (b) acceptance of the rendered performance by the creditor in ignorance of the lack of conformity or, if knowing it, opposing a reserve; (c) materiality of the defect; and (d) defective performance's causation of damages to the creditor.
Briefly, it is stated how such conditions may be satisfied:
a) synthetically, it can be affirmed that the principle of punctuality is a fundamental principle of Obligations Law, signifying that the obligor must fulfill the contract in all its portions, observing all clauses and other general duties of conduct arisen out of the contractual relation, including the duty to act pursuant to the principle of good faith;
b) a second condition, as MARTINEZ  puts it, would be that the obligee does not object to the performance rendered in ignorance of its defective character or, knowing it, opposes a reserve to it. The commentator points out that ignorance of the defect is usual and that this may be due in part to the fact that the obligee many times verifies the performance after it has been rendered;
c) a third condition would be the defect's materiality. That is to say that "the defect must be material give rise to contractual liability", otherwise the obligeewould be allowed to disturb the contractual relation for frivolous claims. It would seem to us, in agreement with MARTINEZ, that the defect's materiality should be determined in the light of the principle of good faith, as a principle that governs the contractual intercourse and gives rise to particular general duties of conduct as on the obligor;
d) as a fourth condition, MARTINEZ, along with ALMEIDA COSTA, includes the causation of damages (usually of a sort peculiar to the type of breach). Those four conditions need be satisfied for a defective performance to be characterized. Finally, the commentator adds that:
"For defective performance to be characterized it is necessary that the obligee suffer losses that are distinguishable from those she would suffer in the cases of non-performance or late performance. It can be understood from this negative delimitation -- which is the only one possible -- that damages resulting from such type of breach may vary".
Having discussed the notion of defective performance and the importance of its study in the ambit of the Convention of Vienna of 1980 and of the Brazilian law, we pass now to the characterization of the doctrine and the legislative treatment provided by this legal framework and that conventional instrument.
But, before we move on, one last remark. As far as Brazilian law is concerned, the analysis on defective performance will not consider the legal treatment afforded by the Act 8.078 of 1990 (Consumers Protection Code), since it is a comparative study and the Convention excludes from its scope of application sales of goods bought for personal, family or household use. So the analysis shall be legislatively equivalent and done on the basis of both civil and commercial treatment given to the subject. Furthermore, it is a problem to which would apply very specific rules and principles that, if added to this approach, would change its nature.
2. CHARACTERIZING DEFECTIVE PERFORMANCE IN CONTRACTS FOR THE SALE OF GOODS: A BREACH OF CONTRACT CATEGORY
In the first part of this essay, it will be attempted to characterize the defective performance doctrine as a type of contract breach, considering some cases of defective performance (2.1) and the legal treatment given to the matter by Brazilian law (2.2).
2.1. Categories of defective performance
Before analyzing some defective performance categories (2.1.2.), we will study the problem of violation as a basic principle that determines the character of the defective performance category (2.1.1.).
2.1.1. Violation of the principle of punctuality
As shown, defective performance shall be characterized when the following conditions are present: non-punctuality of performance; its acceptance by the creditor due to ignorance of the defect or, knowing it, through opposing a reserve claim; the materiality of the defect; and the causation of typical damages. Indeed, it is through the breach of the principle of punctuality that it will be possible to devise the many existing cases of defective performance, as identified by scholars.
As ALMEIDA COSTA says, the principle of punctuality expresses "the basic rule that actual performance shall be in conformity with the one contracted for, and that the obligor shall perform point by point and in all respects, a timely performance being not enough". However, he emphasizes that the lack of exactitude in the performance of a obligation "does not involve a lack of identity or quantity", because in such cases we would be facing a "quantitative breach", governed in Portuguese law by the rule of completeness of performance (art. 763(1) of the Portuguese Civil Code). 
Notwithstanding, PONTES DE MIRANDAobserves that, when the identity of the realized performance comes to be different from the proper one, but is of the same type, then one will have a bad performance. The scholar also refers to the extension and quantity of the performance, once decisive to the configuration of the expected quantity.
MARTINEZ, in turn, teaches that the lack of identity and quality will also matter in a defective performance case.
In any event, one should remember that performance, be it of a primary or ancillary obligation, should be carried out as contracted. If the contract does not provide for a specific way of performance or is limited to establishing it generically, the obligor cannot not just perform as she thinks more convenient; the obligor may well be bound to statutory provisions as well as to the duties deriving from the principle of good faith and the purpose devised by the parties in the transaction.
2.1.2. Other categories of defective performance
As stated before, it is through the breach of the principle of punctuality that we will be able to devise the many existing cases or categories of defective performance. MARTINEZ  identifies, in a synthesis of the law, nine cases or categories of defective performance:
a) An obligation is performed in a manner different from the one contracted.
The cases are manifold. For instance, goods are packaged in a manner different from the one specified or carried by an inappropriate means of transportation. The scholar asserts that "such inexactitude, given its broadness, encompasses almost all forms of defective performance and does not allow going much further than making the obligor liable for such breach."
b) An obligation is performed in a time different from the one contracted.
In this case, the obligation may be performed either before or after the proper time. Late performance, to the extent that it is deemed an autonomous category of breach distinguishable from defective performance, is excluded from the scope of this essay. Now, if performance is carried out antecipatedly, the damages it may cause the obligee are recoverable. Let's suppose, for instance, an international contract with a redelivery clause (f.o.b), providing for a specific date for the goods to leave the harbor to which they shall be delivered first. If their arrival is anticipated, the buyer will have to pay to store them until the departure date. The damages that such tardiness may cause are evident, and the obligee's right to damages is enforceable. According to MARTINEZ, the anticipated delivery may have been accepted because of the principle of good faith, or because it was done for a third party, unaware of the true time for performance. In extreme cases, the obligee may have the right to return the goods. In any case, according to that scholar, anticipated performance does not change the time for performance of the other party's obligation.
c) Actual performance is different from the one agreed.
In this case, the lack of conformity of the promise is clear, since the obligor discharges a promise that is not the one contracted. The obligor, though performing something, breaches the contract in not obeying the identity of its promise.
d) Performance is not carried out at the place where it was supposed to be carried out.
In this case, MARTINEZ states that there are many possibilities of its verification, each with different effects, so that some become equivalent to a situation of pure breach of the contract. As an example of this last situation, MARTINEZ cites a piano recital that has been given in a place different from the one required and, as an example of defective performance, he cites goods delivered to the harbor of Lexon instead of Lisbon.
e) Obligation is performed in a quantity different from the one due.
MARTINEZ indicates this case as being subject to many different ways of inexactitude in the performance of the obligation. The effects are varied. In some cases, the scholar states that the lack or excess may affect the whole promise, citing as an example the diamond that has more or less carats than necessary for making a given jewel.
f) Performance is carried out of a different quality than contracted for.
In this case, the defective character of the performance is also strongly verifiable, since it directly affects what the obligee expects from the goods purchased. Obviously, this case of defective performance is not limited to contracts which involve solely the obligation to give something, but also that of doing something, where not rarely the problem of quality is the reason for its repetition or for contract avoidance.
g) Performance has a defect at law.
In these cases, the imperfection can be verified either when the goods handed over belong to a third party or when they bear an undeclared encumbrance.
h) In performing a primary obligation, the obligor violates an ancillary duty.
MARTINEZ  states that such cases are of the most frequent contract violation category under the defective performance doctrine, due to the existence of multiple ancillary duties in contractual relations, even implying situations of liability in tort.
i) Cases of defective performance provided for in statutory law.
In this case, Congress defines the situations of defective performance of contractual obligations, because of the special character of some contracts.
The above mentioned cases compose the framework of imperfections to which a promise may be subjected, being, each in its own way, a specific disturbance to the obligational relation that shocks the very basis on which it is sustained, which is: that of the equivalence of the promises. From these specific disturbances there will appear also specific effects, but all turning on reestablishing the balance of reciprocity as between the contract's promises.
Having considered the cases of defective performance pointed out by the doctrine, we shall now verify the treatment given to the matter by the new Civil Code.
2.2. Defective Performance under the Brazilian Civil Code
After studying the general provisions governing such breach of contract category under the Brazilian Civil Code (2.2.1.), we will address the specific treatment of defects of goods given by the Code (2.2.2.).
2.2.1. Characterizing defective performance under the Civil Code
The Brazilian legislator of the Code of 1916, inspired by the German obligations law framework, established, like the BGB, only two categories of breach of contract: absolute or definite breach and culpable delay, intending to regulate this way all possible types of violation of duties involved in contractual relations, of which the contract is only one of the sources.
LARENZ  says, in relation to the BGB authors, that this belief soon was held to be inexact, in asserting that the obligor is not only simply obliged to perform the promise due, but also to fulfill it diligently, as it can be reasonably expected of a careful store manager, craftsman or businessman.
Notwithstanding the apparent gap in the language of the 1916 Code, we observe that the national legislator has admitted, in different occasions, the tri-partition of types of breaches.
The legislator admitted it initially when he determined in art. 1.056 (present in the Chapter which deals with the effects of non-performance) that obligations are to be performed in the manner and time due. 
Therefore, the legislator has adopted the principle of punctuality and has distinguished the unsatisfactory manner of performance from absolute breach (non-performance) and culpable delay (late performance). Thus, the legislator provided for the possibility of performance to be carried out in a different manner than or antecipatedly to one contracted for.
It seems that AGUIAR JÚNIOR  is in agreement with us when he, after reading the mentioned art. 1056 of the former Civil Code, states that it will mean breach or defective performance all show disregard for what is due at law, by contract or under the principle of good faith.
In agreement with Congress' intention and the most reliable scholars, the Superior Court of Justice (the highest court in Brazil dealing with non-constitutional matters) case law has ratified the precision of the defective performance category of the then effective art. 1.056 of the Civil Code, holding that it is the obligation of the parties to fulfill the contract in its entirety. According to that Court, the non-observance of the provision in art. 1.056 gives rise to a damages claim in favor of the injured party, provided the obligor's fault for the unsatisfactory performance is proved.
Following our line of reasoning, the legislator of the Code of 1916 has regulated, secondly, the defective performance category specifically in relation to bilateral contracts, in the form of redhibitory defects (art. 1.101 et seq.), and in relation to defects at law, under the eviction's provisions (art. 1.107 et seq.). Such regulation, nevertheless, does not comprise a unitary disposition of the concept.
The legislator, instead of establishing a unitary rule about defective performancein the general obligations section of the Code -- as has been done with non-performance and late performance -- has chosen to make there just a brief reference and to regulate the case only as far as bilateral contracts are concerned, as opposed to doing so in such wide terms as the Vienna Convention does, but in a specific way, dealing only with hidden defects of goods and defects at law that go with them.
As for the new Civil Code of 2002, it is with sadness that we notice the retrogressive treatment it affords the matter. The language of the provision supposedly to be the counterpart of art. 1.056 of the former Code -- art. 389  -- does not make any reference to defective performance of an obligation, dealing only with non-performance. As the Draft  was approved without altering the former provision, the specific cases already provided for in the former Code remain in effect without substantial changes in its rules.
In fact, this situation is made worse to the extent that we find in the definition of late performance that is given by art. 394 of the new Code a projection of the concept of unsatisfactory performance. That provision reads that the obligor who does not perform and the obligee who does not take delivery at the time, place and manner agreed on are in default.
Nevertheless, we do not believe that the legislator, in so phrasing the provision, has intended to regulate, through the late performance doctrine, the possibility of the obligor performing unsatisfactorily an obligation, in the strict meaning of this expression. And this, we have already sustained under the former Code, when the wording of the provision relating to late performance was the same as the current one and was in harmony with the admitted non-performance tri-partition, to the extent that the Code of 1916 provided, in wide and specific terms, for defective performance.
About this point, it is relevant to point out that AGUIAR JÚNIOR  when, in his study about the extinction of contracts for the obligor's breach, he identifies late performance as being possible, in our system, only when there is an imputable fact to the obligor, while the defect in performance may be due to an unimputable act of the obligor.
Based on that, we can identify the principle of good faith, understood in its objective sense, as an important landmark in this subject, since this principle is, along with that of punctuality, a source of the duty to perform well an obligation.
Since there is no culpability requirement, one should not talk about late performance when a defect in performance is verified -- except in the hypothesis of culpable delay. Rather, one should talk about defective performance, since this category contains an idea different from the one underlying culpable delay, as well as a different contractual liability, seen progressively under the objective aspect.
Let us add to this the fact that, as it is stressed by AGUIAR JÚNIOR, "the current terminology uses the term 'culpable delay' to designate non-performance at the time due."
Like non-performance, culpable delay comes from, according to MARTINEZ, an obligor's omission, while, in a defective performance, there is a conduct, an irregular one, though. We want to say thereby that the breach of contract categories are independent, to the extent that defective performance presupposes the existence of some performance, but not conforming with the agreed performance, having, from the moment it is accepted, a complete autonomy in relation to the two other categories of breach.
It is due to what was provided in art. 955 of the former Code that scholars have sustained that the rules relating to late performance were applicable to defective performance. This does not seem exact to us, since, apart from the fact that the legislator has provided specifically for it in the form of redhibitory defects  -- what is to be taken into account in a systematic interpretation and, if possible, applied through analogy -- it is verifiable whether or not the defect is imputable to the obligor.
Along with the BGB (§ 286, after the reform), the Portuguese Civil Code (art. 804, n° 2) and the very Vienna Convention (art. 31 et seq.), most legislations deal with late performance only as a delay in performance, since it is imputable to the obligor.
In any event, it is through the legislative treatment given to redhibitory defects and defects at law that the subject was specifically regulated, both in the former and in the current Code. The treatment of those cases will be the subject of the next section.
2.2.2. Redhibitory defects -- a special defective performance category
Art. 441 of the new Civil Code provides that if in a bilateral contract the purchased goods have hidden defects or defects at-law (undeclared encumbrances), the goods may be restituted to the seller, since such defects render it improper for the use it was made for, or reduce its value. 
According to some commentators, such as Miguel M. de SERPA LOPES, the provisions relating to redhibitory defects, as well as those concerning eviction, are, in fact, a way of guarantee, constituting an obligation which results from a natural element of bilateral contracts, and may de-abrogated by the parties.
Hence, since the Brazilian legislature did not set forth a unitary regime for the defective performance of contracts, the autonomy of such regime is challenged in the sense that this regime is seen as a mere guarantee for the equilibrium of contractual obligations (this is the position of the author mentioned above).
The defective performance doctrine consists of a third kind of breach of an obligation. The autonomy of that obligation is verified at the moment the subject of the obligation is performed, that is, at the point at which it factually occurs: when it becomes an irrefutable evidence of contractual liability due to the lack of punctuality. Moreover, it seems that the idea of guarantee does not fit in the breach of contract doctrine. After all, the rules relating to defective performance of certain contracts, despite of being lex specialis, are part of the contractual liability context -- both strict and general liability.
Consequently, the Brazilian legislature appears to have intended to broaden the scope of defective performance  when it regulated the case of defects and lack of conformity or quality of goods. For MARTINEZ, these two characterize the broad concept of defective performance, where the first one concerns the standard of that trade, and the second, the terms specifically agreed by the parties for a given contract. This expansive notion of defective performance can be noticed in the final part of the provision: "... that render the goods improper for the use they were made for, or that reduce their value".
Before due consideration is given to matters concerning the defective performance provision of the Brazilian Civil Code (Art. 441), one should look at the scholars' positions on redhibitory defects.
BEVILÁQUA states that the "redhibitory defects are unknown defects, which render the goods inadequate for the use they were meant for, or which would render it, in this sense, a hurdle for the parties to enter the contract, in the case these defects were indeed known in advance. So, the defective goods can be rejected."
For Orlando GOMES, redhibitory defects are those that are hidden, which render the purchased goods not as worthy and useful as they would otherwise be.
Also, Caio Mário da S. PEREIRA asserts that "redhibitory defects consist of unknown defects in goods agreed on in a bilateral contract, rendering the goods improper for the use for which they were made, or reducing their value". Further, he adds that "not all defects can serve as a basis for this principle to be verified, but only those that exist to the detriment of the utility of the goods, of the aims, or economic value of the goods."
Washington MONTEIRO argues that redhibitory defects "can be defined as if they were hidden, rendering the goods inadequate to fulfill their function, or diminishing their value so that the contract would not be celebrated were these defects known by the parties."
This commentator states that there are many other theories that try to show the legal rationale behind the treatment accorded redhibitory defects. In this sense, he says that the breach of contract doctrine is the one that best fits the contractual liability doctrine whereby the obligor has the duty to carry out a fair performance when she performs the contract obligations. So, the obligor "is obliged to guarantee the state of the goods, their safety, their qualities, their adequacy as to their proposed goals. She cannot escape, therefore, liability where the goods have defects or imperfections that render them improper for their destination, or that reduce their value."
Now it is important to turn to the requirements regarding the characterization of a defect as regulated by the Brazilian Civil Code. Scholars  make clear that the Civil Code provisions set forth the necessary conditions for the occurrence of redhibitory defects which are: the goods must (a) be under a bilateral contract or of a gift accompanied by an encumbrance; (b) present hidden, (c) relevant, and (d) existent defects at the time the parties entered the contract.
As for these requirements, further explanation is given:
a) The provisions require that the defective goods be the subject of a bilateral contract, or of a gift with an encumbrance. The grounds for this condition seem to relate to the protection of the contractual equilibrium, or better, to the notion of equivalence of promises between the parties so that the functional synalagma previously mentioned can be preserved. In this regard, MONTEIRO points out that "even though the redhibitory defects doctrine is naturally inspired in the sale of goods contract, the truth is that it could be applied to other bilateral contracts, such as swaps, construction contracts (arts. 1.242 and 1.243), and to gifts with encumbrances."
b) The second condition requires that the defect be unknown. In this case, the defect is supposed not to be verified at a first glance, or easily noticed, "without much efforts by a prudent person of lay diligence and care." According to SERPA LOPES: "a defect is considered hidden when no circumstance is capable of revealing its existence, especially when it is not possible to be verified, unless through a chemical analysis, investigation, use of the goods, or unusual labor", what makes it "essential to disregard the idea of a similarity between the unknown defect and the internal defect, and the one between the apparent defect and the external defect, since a disease or defect, even being internal, can be recognized; and, even being external, can remain hidden". MARTINEZ  points out that a hidden defect is one that is unknown and that could be legitimately ignored by the obliged (accipiens), as such defect was not detectable by a diligent examination of the goods. Also, a concealed defect already exists at the time of the factual transfer of property so that its effects are only noticed afterwards.
c) Merely being hidden does not fulfill this condition: the defect must be also material, that is, it must affect the usefulness of the goods, or their value. Thereby, the defects that are not pertinent enough cannot be taken as redhibitory defects.
d) Finally, the defects are those existent at the time the parties entered the contract; or better, defects verified at the time of the actual transfer of property, which is the time of actual passing of the risk to the obliged (accipiens), unless agreed otherwise by the parties. This can be verified in art. 441 of the Brazilian Civil Code, which states that liability falls on the seller only where she is responsible for the defects of the goods, even after its factual delivery.
From the assessment of the legal requirements discussed above one could conclude that they are adequate to the conditions of defective performance pointed out by MARTINEZ and discussed on section 1 of the present essay.
In this regard, the bundle of conditions for the characterization of the defects set forth by art. 441 of the Brazilian Civil Code makes clear a want regarding the punctuality principle. As far as the breach of contract doctrine is concerned, the existence of these defects turns on an inadequate performance of that which was agreed, where the obligor's obligation is that of delivering the transacted goods without any defects that could reduce their utility or value.
Furthermore, the remaining conditions set forth by Art. 441 are identical to those alluded in the beginning of this section of the essay. As for unknown defects, these conditions are verifiable when the buyer has no knowledge of the defect, or when the buyer knowingly them adds a reservation to the contract, according to art. 445 of the Brazilian Civil Code. As for the materiality of the defect, the conditions are satisfied when the defect affects the goods' expected utility or value; and, finally, as for typical damages -- as to the utility and value of the goods -- when they relate to the defects verified at the time of performance - actual handover of the good; recording, in case of real estate property; sampling; or passing of risk.
At the end of the day, the existence of hidden defects in a bilateral contract -- defects that are material up to a point where they could affect the utility or value of the negotiated goods -- are the ones that characterize a defective performance by the obligor.
Given due regard to these requirements, the cases of defective performance covered by the redhibitory defects are also to be considered.
By saying that the Brazilian Civil Code gave a special treatment to defective performance through the provisions concerning redhibitory defects (and others on eviction for defects at law) this scholar intends to identify the circumstances in which a defective performance by the obligor could be verified.
In so doing, the cases set forth in the Brazilian Civil Code provisions relate to the quality, quantity (extension, size and weight), and to the identity of the goods sold. These provisions are analyzed from the guidelines regarding the defectiveness of an obligation stated in this Code, which are: the destination for which the goods were obtained, and the value for which they were negotiated.
The quality defect lies on the fact that the goods do not fulfill the purpose of the contract because, as states PONTES DE MIRANDA, "the one who receives the goods - the subject of a bilateral contract -- receives the goods with all their qualities and size. It is not possible to say that the contract intention relates only to the goods as they are, regardless of their qualities; nor that a specific contract clause would be necessary in order to make the quality enforceable. No one wants the goods per se, irrespective of their qualities."
As for the defect of quantity (extension, size and weight), it turns on the civil provisions that define the quality of the goods, as far as defective performance is concerned, which is treated differently from partial performance.
As to a lack of identity of the goods, it occurs when the inadequacy refers to the genre, class, or species of the goods, and to their quality.
As far as this last possibility is concerned, PONTES DE MIRANDA makes an allusion to the following examples: "when one buys a tie, it is known that it is commonly used around the neck; however, this person did not choose just any kind of tie. In case the seller sends or delivers the wrong tie, or a tie made of a different silk from the one the buyer saw at the shop window, or from the one she tried on, the mistake or the defect of the goods is clear. The same occurs when a person buys a ring made of gold, and she receives a golden ring only. Indeed, it is crucial that the goods delivered to the buyer be the same and of the same value as agreed."
On one hand, it is true that, besides the case of defective performance above-mentioned, the Brazilian Civil Code of 1916 regulated other cases of defective performance - even all of them -- as its art. 1.056 expressly provided for the punctuality principle, that is, that the contract must be performed in its entirety, clause by clause. This reveals a broad notion of defective performance. On the other hand, there is still the question of whether the New Civil Code admits the other cases addressed before, taking into account art. 389. These cases relate to inadequate performance as well as to the agreement; anticipatory performance; and a performance made in a different quantity, in a placedifferent from the one agreed on; and generally regulated in arts. 441 and 447 of the Civil Code.
The answer for this is not so clear. Nevertheless, one can use three arguments in order to assert that, in spite of the omission by the Code, the punctuality principle remains as a corollary principle of the law of obligations and continues in force in Brazilian law and therefore is still applicable by analogy, as understood from art. 4 of the Introduction to the Civil Code Act.
Finally, the force of the case law as source of law will be evident and determinant in maintaining the application of the punctuality principle, as has been repeatedly applied by the Superior Court of Justice in decisions previously mentioned. As a matter of fact, the case law had a determinant role not only in affirming that principle, as well as so many others, but also in developing them on the basis of guidelines established by the new Code, as well as the present needs of commerce.
2.2.3. Liability arising out of defective performance
In the face of the defects provided for in the rule of art. 441 of the new Civil Code, the obligee is given means to avoid suffering damages, as far as the goods' utility and value are concerned, unless she expressly undertakes the risks of the defects that might exist. The Code provides the obligee withtwo alternative remedies against the obligor: the redhibitory and estimatory actions. In the latter case, the obligor seeks price reduction, while in the former, the goods' restitution -- art. 442.
Therefore, through the redhibitory action, the obligee rejects the goods due to the existence of hidden defects, whose main effect is the avoidance of the contract which, once declared, gives her the right to restitution of the amount paid and reimbursement of the expenses, as well as to compensation for losses and damages suffered, provided that the obligor was aware of the defect (art. 443).
Regarding the price reduction action, PONTES DE MIRANDA, in a commentary to the Code of 1916, stresses that the Code did not specify how one should proceed: should the aggrieved party be granted a reduction in relation to the value of the goods as determined by the price, or a discount in relation to the value of the goods according to an appraisal of the goods' value, regardless of the price agreed by the parties?
Since the new Code also does not establish the criteria for determining a price reduction in the aforementioned case, the problem remains unaddressed. Consider the treatment given to the matter by a learned scholar, who views as a possibility the following solutions:
"a) to consider as the amount the consideration paid, or to be paid (the goods might have been delivered before the payment of the price), and to deem either due what was received as consideration, or excluded, to what the claimant would have to pay, that which is deemed depreciation;
b) to appraise the value of the goods at the time the contract was entered and again after the defect had come up on a percentile basis, with the amount determined subtracted from the consideration;
c) to leave everything to experts to determine".
PONTES DE MIRANDA states that the third solution must not prevail, since no provision tells experts how to proceed. The scholar adds, moreover, that the first solution is unfair, because, "if, e.g., the goods were worth more than ten percent of what the consideration received was worth, nothing would be subtracted. If the goods were worth less than ten percent of what the consideration received was worth and the result of the goods' defect was twenty percent, the claimant receives more than twenty percent of the value: receives twenty percent of the consideration".
The scholar thinks the second solution is fair, where the reduction is effected in relation to the consideration, subtracting the loss in value due to the defect. He provides us with the following example: "if the goods were worth 10 and the claimant purchased them for 15, the reduction of 2 in the sum 10 corresponds to the fifth part of 15, thus 3. If the goods were worth 15 and the claimant acquired them for 10, the reduction of 5 in the amount 15 corresponds to the third part of 10, thus, to 3,33...".  
With respect to limitation periods for filing the redhibitory or the estimatory actions, art. 445 of the new Code establishes that they are preclusive, no longer prescriptive, as they were treated by the former Code. These limitation periods start running as of delivery, i.e., "of the effective delivery" and vary whether the item containing the defect is a chattel or real estate  and whether or not the item was in the possession of the buyer. Thus the limitation period is of thirty days for chattel and of one year for real estate, unless the parties agree otherwise. Such periods, however, will be cut in half, counting the time of the shipment, if the buyer was already in possession of the item sold.
Further, the new Code fills in a gap that existed under the former Code, adding that when a defect, by its very nature, can only be known later on, time runs as of when the buyer becomes aware of it until a maximum term of one hundred and eighty days, if it is chattel; or of one year, if it is real estate (art. 445(1)). The Code innovates in dealing with the sale of animals, establishing that the limitation period for the guarantee for hidden defects will be the ones established in a specific statute, or, in the lack thereof, by local usages, applying art. 445(1) in the lack of any other applicable provision (art. 455(2)). The Code innovates as well when it provides for the possibility of suspension of the limitation periods provided in article 455; the period of effectiveness of the guarantee clause, the buyer being obliged, however, to give notice of the defect to the seller in thirty days following its discovery, and being precluded from taking advantage of the limitation periods to which the law alternatively entitles her (art. 446).
However, it will not be possible for the buyer to choose which action to file in the case of destruction of the goods due to hidden defects. Only the redhibitory action would be available, along with the right to recover the amount paid as well as damages, considering that the estimatory action presupposes that the obligee wishes to keep the goods in her possession.
As for goods sold together, a redhibitory defect found in one does not authorize the rejection of the other (art. 503), as the goods do not constitute an indivisible whole.
Concerning the possibility of the obligor resorting to the redhibitory action or to the estimatory one when the defective goods are acquired in public auctions, we have the following: while earlier the obligor was expressly precluded from taking advantage of such actions (art. 1.106 of the former Code), now such prohibition no longer exists. And no longer expressly replicating such prohibition, we ask whether it still remains, taking into account the nature and the conditions in which sales in public auctions take place. Maybe we can find a hint in the language of art. 447 of the new Civil Code, that rewrites the former provision on the seller's liability for eviction (art. 1.107 of the former Code), that provides nothing about goods being acquired in public auctions.
Thus, in establishing that in bilateral contracts the seller is liable for eviction, even if the acquisition has taken place in a public auction, the new Code provides for the possibility, earlier inexistent, that in this form of acquisition the seller remains liable for defects at law that encumber the goods. If we make a systematic and analogical interpretation, fully justifiable and pertinent in the case, we can conclude that the new Code, through article 447, provides also a possibility, earlier prohibited, for holding the obligor liable for redhibitory defects in acquisitions made in public auctions.
As for the remaining cases of defective performance, in particular those covered by art. 1.056 of the former Civil Code, whose limitation period is of ten years, we can say that the effects, when triggered, are the following:
a) If the obligee has no interest in receiving the goods, due to their uselessness, and the obligor is in default for bad performance, the contract can be declared avoided through the exercise of such formation right, accompanied by a right to damages;
b) If, on the other hand, the obligor is interested in preserving the contract, she can seek either the defective goods with a reduction of price, or the equivalent in money, cumulated with the right to damages; and
c) If a fundamental breach of contract is characterized, the contract may be declared avoided; but if substantially fulfilled, even if defectively so, the obligor is entitled to damages but not to avoidance.
Concerning the obligor's right to declare the contract avoided for defective performance, being no longer interested in the contract's fulfillment, the right is only available where a substantial breach has been found. AGUIAR JÚNIOR states that, "a defective performance that amounts to a substantial fulfillment of the contract, gives the obligee a right to damages but not to avoidance."
Having established the notion and characterization of defective performance and the legal treatment that Brazilian Law gives to it, it is proper to verify next the treatment given to matter by the Convention, taking into account the legal model adopted there, and finally, to consider the possibility of Brazilian domestic law adopting such model.
3. CHARACTERIZING DEFECTIVE PERFORMANCE UNDER THE 1980 UNITED NATIONS NATIONS CONVENTION ON CONTRACTS FOR INTERNATIONAL SALE OF GOODS
In this chapter we will attempt to characterize a defective performance under the 1980 Vienna Convention, to identify the legal model adopted by the Convention (3.1) and to compare both models and consider the possibility of adopting the Convention's model in Brazil (3.2).
3.1. The Convention's defective performance legal model
The model of breach of contract adopted by the Convention regulates three forms of non-performance, dealing only with defective performance, with regard to its characterization and options of remedies.
On the other hand, in Part III, Chapter II, Section II -- namely "Conformity of the goods and third party claims", the Convention works on the amplitude of meanings of the word conformity in order to characterize the non-performance of an obligation by the seller and considering her liable whenever a lack of conformity is found.
This wide notion is the result of the search for a unique and specific regulation on the idea of defective performance adopted by the Convention, in an attempt to reach all situations where conformity or non-conformity could be used. The use of this unique concept by the Convention is, according to MARTINEZ, a direct influence of the Common law system, in which the idea of defective performance is closer to the idea of breach of contract.
Furthermore, according to Harriet C. ZITSCHER, Common law systems do not distinguish between non-performance, bad performance and undue delay, bearing in mind that in that system a contract is characterized as a promise and guarantee of performance, and any failure in such performance is considered a breach of contract.
However, the Convention adopts a distinction (3.1.1.) and dismisses a divided regulation for each one of the three forms of non-performance (3.1.2.) and offers a series of remedies to the non-breaching party (3.1.3.).
3.1.1. Defective performance as breach of contract
As far as contract breach is concerned, the Convention regulates specifically breaches relating to the conformity of goods and those relating to any other rights or claims. The latter are regulated by article 41 and following articles, and the former are regulated by articles 35 to 40. Sometimes some dispositions of the Convention apply to both kinds of breaches, but the liability that arises out of rights or claims of a third party are not the within the scope of this essay.
Regarding the conformity of goods, the Convention establishes in article 35 the seller's duty to deliver the goods in conformity to the contract, as well as the criteria or parameters to analyze the conformity of those goods.
According to Vincent HEUZE, goods can be expressly characterized as conforming goods when they correspond, for one side, to the descriptions in the contract, and for the other, when they meet the expectations of a reasonable person with the same qualities of the buyer and in the same situation.
In paragraph (1), the Convention expresses the criteria for quantity, quality and description, as well as the packaging to verify the conformity with the contract. According to Maria Ângela Bento SOARES e Rui Manoel Moura RAMOS  those criteria shall be met according to the terms of the contract.
Concerning the conformity of the goods, the Convention on article 35, paragraph (2), establishes that, except where the parties have agreed otherwise, the goods will be in conformity when they:
"(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; and
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods."
Luiz Olavo BAPTISTA and Aníbal Sierralta RÍOS call attention to "the necessity of an introductory clause in international contracts which indicates the motive, cause, and reason which led the parties to the contract", in order to rely on the international commercial practice in the event of a delivery of non-conforming goods.
The third paragraph of article 35 expresses that the seller is not liable for any of the above mentioned failures if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.
By the reading of the mentioned articles, we can conclude that the elements that characterize the lack of performance of a contract are: the undue delay, the acceptance of the goods by the buyer with no knowledge of a breach, or with the knowledge of the breach giving notice specifying the lack of conformity, the cause of lack of conformity and the damages occurred by the lack of conformity.
The undue delay as a form of lack of performance is stated in article 35, paragraph (1) of the Convention. This norm is an expression of the principle of punctuality in establishing the seller's obligation to deliver the goods, with correct quantity, quality, description and packaging at the time agreed in the contract.
The acceptance of the goods by the buyer with no knowledge of a breach as a characteristic of a lack of performance is brought by article 35, paragraph (3), that following the good faith principle stated in article 7, paragraph (1), states that "the seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity".
On the other hand, if the buyer has knowledge of the non-conformity of the goods, the buyer must send a notice to the seller in order to keep the right to claim his rights, according to article 39 of the Convention.
Damages are present in any of the situations of article 35, paragraph (2), as the value of the non-conforming goods will not reflect the economic value agreed by the parties to the contract, since the goods will not serve the specific utilization the buyer would need or would not satisfy the quantity or quality required and this means that there is a breach in the terms agreed on the contract and deprived the buyer of what he was entitled to expect.
In order to verify damages and lack of conformity, it is expected to be read together and in accordance with article 25 of the Convention that establishes the idea of a fundamental breach. The breach of a contract will be fundamental according to article 25 "if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract."
FADERA explains that a breach will be fundamental where it affects the fundamental obligation of the contract and causes as substantial loss to the non-breaching party. AGUIAR JUNIOR, confronting the same issue in the same way, affirms that non-performance of the main obligation is not a cause, per se, to extinguish the obligation; the breach must deprive the non-breaching party of what she could reasonably expect under the contract.
The understanding of the content and the reach of article 25 is quite important since the facts will grant the non-breaching party the right to avoid the contract without any judicial interference as stated by article 26. However if not under the rule of article 25, the non-breaching party in order to seek damages or to avoid the contract must seek a judicial solution.
Keeping in mind that the basic idea to show a fundamental breach is the existence of a loss that would deprive the non-breaching party of something that she was expecting under the contract, it is very important to determine its scope.
According to the Commentaries to the Convention's Project prepared by the UNCITRAL Secretariat, this determination should be made on the facts of each case, using as a base the monetary value of the contract, or the loss suffered by the party or the loss of other activities by the non-breaching party.
FRADERA, quoting the German Professor Michael Will, highlights that the orientation of the commentaries is not exhaustive, but "represents a direction", leaving the interpretation in the hands of the courts, that should keep in mind the expectation of the parties and the terms of the contract.
With those considerations on the idea of a fundamental breach, we must now consider the autonomy and specificity of the rules of the Convention concerning lack of performance, determining its amplitude, and then identify the options of the non-breaching party in order to have obligations fulfilled.
3.1.2. Autonomy and specificity in the treatment of defective performance -- scope
Under the former international rules on contracts for sale of goods, the Hague Convention of 1964 (articles 33 and 36), the buyer could not deem the seller's obligations fulfilled if the goods are not in accordance with specifications of quality, quantity and description set forth under the contract.
In this aspect, according to the UNCITRAL Secretariat, article 35 of the Vienna Convention is different from the former Convention, because the obligation can be deemed fulfilled when the seller delivers the goods, or when it leaves the goods at the buyer's disposal, in accordance with the general conditions of the contract, even if they do not correspond entirely in quality or quantity to the contract specifications.
It seems to us that it cannot be disputed, however, the autonomy given to defective performance under the Vienna Convention, especially if considered that the application of rules relating to the non-conformity of goods will only be possible from the moment there is an inadequate performance, that is, from the time at which the goods are delivered or are made available to the buyer.
But even on the face of such autonomy and unitary concept of the aforementioned art. 35, the international legislator still did not encompass all cases of defective performance, such as, e.g., the delivery of goods in a place different from that agreed upon or the breach of accessory duties.
Moreover, we believe that the rule of art. 30 of the Convention, where it is established that the seller is supposed to, in the conditions determined in the contract and in the Convention, deliver the goods, transfer property in them and, if such is the case, to send the documents that concern them, supports, as in art. 35, the well-known rule according to which the contract must be accomplished in every point, that is, attending to the principle of punctuality, the breach of which, according to MARTINEZ, may give reason to several situations of unsatisfactory performance, due to the amplitude of its concept.
Indeed, one can find throughout Chapter II -- "Obligations of the Seller", where the aforementioned art. 30 is inserted, a series of provisions referring to defective performance that offer the exact dimension of its comprehension under the Convention.
Its manifestation is also present in the rule of article 34, that refers to the handing over of documents relating to the goods, in providing for the possibility that the seller cures any lack of conformity in them, when the handing over has occurred early.
Following, it is specifically regulated as to the lack of conformity of the goods, in the wide notion of the word conformity borrowed from art. 35 of the Convention. It is indeed true that paragraphs (1) and (2) of this article bring, after all, the criteria or parameters through which the goods delivered by the seller will be considered in or out of conformity, at the point of RAMOS and SOARES affirming that, out of such criteria, non-conformity lacks relevancy under the Convention. We believe however that by the supplementary character of the rule contained in art. 35 paragraph (2) the possibilities of verification of a lack of conformity of goods are widened, due even to what the parties agree upon.
Undoubtedly, also article 36 of the Convention is quite expressive as to the determination of the scope of defectiveperformance, as it makes the seller liable, according to what is agreed under the contract and the Convention, for any lack of conformity which exists at the time the risk passes to the buyer, even if such lack only appears afterwards, or it arises from a breach of any of its obligations, including the unsatisfactory guarantee.
Last, we find under the scope of defective performance the defects at law that encumber the goods, as regulated specifically in articles 41 et seq. of the Convention.
Before such a picture, we can say that, within the Convention's scope, the treatment given to defective performance comprehends all obligations derived from the contract, the Convention and the general rule of good faith, reaching the main obligation (art. 30) as it reaches the accessory ones (arts. 32 and 34), as they must be performed in conformity with the contract, or, in its silence, with what the Convention provides on that respect.
Therefore, the seller will be liable, under article 36, for each and every imperfection verified in the performance of any of the obligations undertaken, except, on this concern, the case of art. 35 paragraph (3) and those of art. 39, provided that, as far as the latter are concerned, the circumstances provided for in art. 40 are not found. 
It is relevant to ask from what point there must be a judgment of conformity or lack of it of the goods as to the seller's liability. To this purpose, art. 36 provides that such point coincides with that of passing the risk to the buyer, and it is possible to verify at such point the lack of conformity. From this point on, every failure or non-conformity that arises is under the buyer's responsibility, except for the one that, although coming up later on, was already in the product at the time of transfer.
The liability of the seller will remain, even after the risk passes, in respect of any non-conformity that is found and is due to the breach of any of its obligations, including the guarantee that for some time the goods will remain fit for their normal use or certain special use, or that they will retain certain specified qualities or characteristics (art. 36(2)).
The examination of the goods, in turn, will be done by the buyer, as stated in art. 38 of the Convention, in the shortest possible period in the circumstances.
BAPTISTA and RÍOS point out that such rule may lead to discussions as to what is "within as short as a period as is practicable in the circumstances". According to these scholars, such period "must be counted from the time at which the buyer has the goods at her disposal, and the circumstances that will determine the wideness of the term are the contract references (probably the introductory clauses), the commercial uses and practices, the nature of the goods, the period or time at which the goods have been acquired, and the quality or nature of the parties."
Certainly the period must be counted from the point at which the buyer has the goods within its power. Article 38, paragraphs (2) and (3) precise the content of this rule towards two particular situations: one in which the contract implies the transportation of the goods and another one in which the buyer changes the destination of the goods in transit or re-sends them before having a reasonable chance to examine them. In the latter, the examination may be postponed until the arrival of the goods to their new destination, since at the time the contract is concluded the seller has or should have known of the possibility of route change or re-sending. In the former the examination may be postponed until the arrival of the goods to their destination.
SOARES and RAMOS highlight that "in any of these cases what is sought is to determine the moment of examination by reference to the buyer's actual possession of the goods."
Once the goods are examined and a non-conformity is found, the buyer shall notify the seller thereof, specifying its nature, in a reasonable period from the time at which she has or should have noticed, so as to be entitled to assert a defective performance claim under article 39, para. (1), losing in any case such right if it is not exercised within two years, counted from the date at which the goods were effectively put at the buyer's disposal, unless such time-limit is incompatible with the contractual period of guarantee (art. 39(2)).
BAPTISTA and RÍOS in analyzing the notice of lack of conformity in international contracts assert that it is essential that an actual and effective delivery of goods take place, because the only way through which the buyer may notice a non-conformity of the goods is through physical contact, adding to its comment that the time-limit set is imperative to the safety and stability of international economic transactions, once it would be harmful to both parties if the buyer indefinitely withheld the right to claim a lack of conformity against the seller.
It is to be observed that the seller will not be able to invoke the provisions of articles 38 and 39 if the non-conformity refers to facts that were known to him or that could not have been ignored and were not revealed to the buyer, since permitting it would imply admitting in the framework of the Convention an incurable contradiction as to the provision of art. 7, paragraph (1) -- with respect to the good faith principle. The recognition, therefore, of the seller's silence in respect of a lack of conformity of the goods may not be admitted in any case.
Section III of Chapter II of the Third Part of the Convention provides for cumulative (art. 45(2)) means available to the obligee in case of breach of contract by the obligor, establishing in art. 45(1) the rights assisting her.
3.1.3.Creditor's options in the case of breach of contract resulting from defective performance
The regulation of such rights is found in Section III -- articles 46-52, as well as in articles 74-77, concerning the right to claim damages.
The buyer has the following options, once the contract is breached for defective performance and a non-conformity discovered. In such circumstances the buyer may:
a) Seek delivery of other goods in replacement -- specific performance, once the non-conformity amounts to a fundamental breach of contract, and the request for replacement of goods is made at the time of notice of non-conformity referred to in article 39, or within a reasonable period counting from that date (art. 46(2));
b) Seek to have the goods repaired as a remedy for the non-conformity, except where this is not reasonable, taking into account all circumstances. A claim for reparation of goods must be made at the time of notice referred to in article 39, or within a reasonable period (art. 46(3));
c) Declare the contract avoided, if the breach of any obligation under the contract or the Convention amount to a fundamental breach (art. 49(1)(a));
d) Having paid or not paid the price, reduce the price in proportion to the difference existing between the value of the goods actually delivered, at the time of delivery, and the value goods conforming to the contract would have at the time. This may not be done, however, if the seller cures any breach of her obligations, in accordance with article 37 or article 48, or she refuses to accept performance by the seller, in accordance with the aforementioned provisions (art. 50);
e) In any way, make use of the provisions of articles 46 and 50 when only part of the goods has been delivered in do not conform with the contract, in which case the application of such provisions is limited necessarily to the part not in conformity (art. 51(1));
f) Notwithstanding art. 39(1), reduce the price under article 50, or seek damages, excluding loss of profit, if she has a reasonable excuse for not providing the necessary notice (art. 44);
g) Accept the non-conforming goods in amount or quality and seek damages;
h) Seek damages, in the event the seller deliver the goods before the documents are handed over, even if she has cured any lack of conformity before actual delivery (art. 34); and
i) Seek damages in cases such as delivery unduly ahead of time, even if the buyer, at her discretion, refuses to take delivery of them, or if the seller, until the date agreed on for delivery, delivers other new goods in replacement of those in non-conformity to the contract or cure any non-conformity (arts. 37 and 52(1)).
Having identified the autonomy and scope of the rules relating to defective performance under the Convention's framework, as well as the obligor's liability for contract breach for defective performance and yet the means available for the obligee to prevail in such cases, we have left the analysis of the possibility of reception of the legal model adopted by the international legislator in Brazilian law, given its characteristics and compatibilities.
3.2. Aspects that liken the Convention's model to Brazilian law
In the search for a justification of the possibility of reception of the Convention's legal model by the Brazilian legal system (3.2.2.), it is appropriate to examine beforehand the two contract regulatory schemes (3.2.1).
3.2.1. Comparing legal models
As a starting point, we may assert that the defective performance doctrine is admitted both under the Convention and Brazilian law as an autonomous breach of contract category, distinguishable from non-performance and late performance.
This distinct and specific treatment afforded by both regulatory schemes comes from the precise understanding of its setting and dimension within the breach of contract doctrine and the verification of the characteristic elements.
In effect, although it may seem, at first glance, that such regulatory schemes give them a limited scope of application, due to the specific treatment given to certain cases (art. 441 of the Brazilian Civil Code and art. 35 of the Vienna Convention), we sustain that its applicability extends beyond and reaches each and every lack of conformity between the obligation as agreed and as performed.
This wide scope is enabled by the principle of punctuality, that in Brazilian law is admitted as a general principle of obligations law (see 2.2.2 supra) and, by the Convention, in some of the principles derived  from it, and by the wide notion attributed to it by the word conformity, associated with the rule of article 35(2) and the duties listed in articles 30 and 32.
Accordingly, the two regulatory schemes are compatible as far as the concept, autonomy and scope of defective performance is concerned.
However, given the existence of such similarity, one cannot deny that in the scope of the Convention, the extent and legal model of defective performance is more suitable to the solution of problems arising out of breach of contract than in Brazilian Law, considering the principles adopted by the former and particularly the enlargement of the obligations and options that the obligee has in the case of non-performance.
The main obligation of the seller in contracts of sale consists obviously in the delivery of the goods sold. That obligation is of the essence of such contracts and as far as it is concerned there is no distinction as between both sources. While in the Convention one can find an enlargement of the obligations concerning the delivery of goods, in Brazilian Law one can find certain legal restrictions in this respect.
Thus, in the Convention, the seller has the duty, in addition to the delivery of the goods on the terms and conditions agreed on the contract and provided for by the Convention, to pass the legal property in them and, as the case may be, forward the required documents (art. 30), and hand them over at the time, place and manner provided on the contract (art. 34).
To such set of obligations, additional ones are imposed by article 32, which are: to specify the goods where they are not clearly identified; to notify the buyer of the shipment of the goods; to procure the contracts necessary for shipment of the goods to the agreed destination by means of transportation appropriate and usual in the circumstances, if so agreed; to provide the buyer with all the information necessary for the execution of an insurance policy, if it is not up to the seller to contract insurance.
On the other hand, the Convention, stressing the contract's bilateral character, imposes three important conditions on the buyer's right to rely on a lack of conformity of the goods - which are, the duty to inspect the goods upon delivery -- art. 38(1); to notify the seller of any lack of conformity that the buyer discovers upon inspection -- art. 39(1); and, if the buyer knew of the lack of conformity at the time the contract was executed, the seller can advance a mental reservation defense, in accordance with the purpose of the provision in article 39.
Such obligations, apart from any other the parties may have agreed, are a manifestation of the Convention's innovative and expanding character in comparison to many national legal systems, particularly the Brazilian system, which does not treat the parties' obligations in the same way.
In Brazilian Law, the seller's obligations are exhaustively specified in the Civil Code, the main one consisting in the delivery of the goods accompanied by the passage of title, pursuant to article 481. The new Civil Code is silent as to the time, manner and to whom the purchased goods are to be handed over. In turn, it provides that the goods must be handed over at the place where they are found when sold, unless the parties agree otherwise (art. 493). The costs of delivery are borne by the seller, while those of executing the deed and recording (as in the case of conveyance of land) are borne by buyer, unless otherwise agreed (art. 490).
Analyzing the seller's obligations in contracts of sale, Orlando GOMES states that the seller, unless otherwise agreed, has to hand the goods over to the buyer or his agent, immediately after the contract is concluded and at the place the goods are found at the time of the sale.
As for the obligation to tender the documents, BAPTISTA and RÍOS, commenting on article 32 of the Convention, stress how far such provision is from Latin-American law, since tender of documents is not usual in the latter, though it may be deemed a secondary obligation. Nevertheless, Orlando GOMES asserts that the tender of documents is necessary for the buyer to acquire possession or disposition of the goods.
The secondary obligations, attendant to the main obligation, as seen, were not codified in as broad a way in Brazilian law; such obligations, nevertheless, may be derived from the contract itself or from the principles applicable thereto, namely the principles of good faith, probity, contract economy, and practices and usages of trade, as a basis for the assertion of liability for defectiveperformance.
As for the means that the buyer has at her disposal where an obligation is unsatisfactorily performed, the Convention offers her many options and advantages which, under Brazilian law, are limited to the cases already specified in section 2.2.3 above. One of the options, for example, is that the creditor in the case of fundamental breach of contract may declare the contract avoided without judicial intervention, through a simple notice sent to the debtor (art. 26). Such procedure is possible under Brazilian law only if there be an express resolutive (escape) clause, otherwise the contract can be declared avoided only by a judicial decree (art. 474 of the new Civil Code).
While under Brazilian law we verify that if the obligee has no interest in taking delivery of the goods because they are damaged, she may declare the contract avoided (art. 475, CC), or reject the goods (art. 441, CC), and, if she is interested in preserving the contract, she may seek either defective performance with reduction in price, or the monetary equivalent, in addition to damages, in the Convention, we have an enlargement of such options, the buyer being entitled to elect, cumulatively (art. 45 of the Convention), compensation for damages and the rights provided for in articles 46 to 52, such as the replacement of goods  and the grant of additional time for performance of the obligation.
According to BAPTISTA and RÍOS, "such advantages in favor of the buyer present some technical difficulties. And they are related to presence of the concept of 'fundamental breach', previously explained when commenting on Art. 25 of the Convention; thus attempting to harmonize the action that seeks specific performance and the action for reduction in price (quanti minoris), of Latin origin, the grant of a grace period of German origin, and the action that seeks specific performance with the action for compensation for damages that prevails in the Anglo-Saxon system."
What we see, therefore, is that, although there exist the difficulties pointed out by BAPTISTA and RÍOS and an enlargement of obligations and remedies or options given to the buyer by the Convention, we must make the observation that the reception of its model by the Brazilian legal system will not go along with what commentators and case law have been sustaining as far as such obligations and duties of the seller for her perfect performance are concerned.
Furthermore, one should point out that Brazil is a country that imports legal models, being quite flexible in this respect, notwithstanding the need and responsibility we have to build our own legal system; one could say that such receptions lead always to the modification and, not rarely, evolution of domestic law.
3.2.2. Justifying the possibility of reception of the Convention's Model
The Vienna Convention of 1980, being a means of uniformity as to contracts of sale of goods in the international level, aims not only at securing a uniform legal regime applicable to such contracts but also at providing rules that fit the peculiarities of international trade.
Actually, the Convention, to the extent that it is a regulation of international sales -- in contrast to the preceding Hague Conventions on international sales -- is designed to regulate the contract of sale as a whole, despite the existence of gaps, adopting, therefore, a scheme that is compatible with the more diverse legal systems, even though some may be Civil Law while others, Common Law.
In view of such objectives, the Convention's provisions and innovative solutions strike a balance between the two systems by which it was influenced: Civil Law and Common Law.
For the purpose of this essay, one could point out as innovative examples in the Common Law system that the Convention does not distinguish between conditions and warranties, as expressed in the provision of art. 35, and the possibility provided for art. 50 that the buyer may seek reduction in price in the case of lack of conformity of the good purchased, possibility which is not available in Common Law. As an innovative example in the Civil Law system, one could draw attention to art. 25's fundamental breach, whose expression, according to BAPTISTA and RÍOS, "is foreign to Latin-American doctrine (scholars) and statutory law, which is more acquainted with the principle of 'damages' or 'injury'."
As far as the balance struck by its provisions is concerned, the Convention has a great deal of value to the dynamic character that commerce among nations has acquired after World War Two, to the extent that, governing in a single instrument  the rights and duties of the seller and the buyer as well as the formation and interpretation of contracts for the international sale of goods, it offers the contracting parties solutions to issues that, in many municipal legal systems, are regulated in a plurality of legal instruments: on the one hand, in special legislation on sales and, on the other hand, under the general treatment -- whether codified or not -- of obligations and contracts in general.
Likewise, as the Vienna Convention was built on the idea of facilitating and enabling a development in globalized trade, by means of its uniforming technique, it has "the value of ensuring a better balance in the regulation of international sales, avoiding the situation in which one of the parties is subjected to a municipal legal system that in most cases is unfamiliar, unknown or even unfavorable to him."
Accordingly, one should not see as negative the reception of its model by the Brazilian legal system, as the Convention translates well and expresses well, through its principles, the international community's desire to have uniform rules that warrant a maximum of certainty in the field of international trade. Irineu STRENGER points out that, among other factors, the economic players, for having no legal education, "would rather contract, as far as possible, on the basis of standardized definitions and formulas, whose precise meaning derive from typified rules and practices and, therefore, entirely cognizable without having to go over them each time."
Moreover, applying Brazilian law to international contracts one could find it difficult for its provisions to secure the fulfillment of contract ends, in view of some of the limitations presented above.
As an example thereof, we avail ourselves of VIEIRA's reference to the French commentators MALAURIE and AYNÈS who, stressing the originality of the contract of sale, point out a difficulty found in the applicability, to contracts of an international nature, of all rules on sales belonging to a national legal system, particularly as far as the unity of the seller's obligations (linked to the obligation of conformity) is concerned.
According to VIEIRA, those commentators believe that "the Vienna Convention on international sale of goods will probably alter indirectly the domestic law: 'there could be for the one contract a considerable difference between domestic and international rules, whatever may the respective particularism be (law of maximal difference between domestic and international law)."
Patrícia GALINDO DA FONSECA sustains that same position that "the influence exerted by the United Nations Convention on national legal systems should not be ignored. It is a recent legal phenomenon that tends to open up national legal systems in order to strengthen the participation of the respective country in the globalized market, attracting economic partners by means of a smaller number of uncertainties in international trade. The Scandinavian countries greatly resorted to the Vienna Convention as they codified their sales law in 1980. The Obligations and Property Act of the new German 'Bürgerliches Gesetzbuch' (Civil Code) was likewise strongly influenced by the Convention. The Argentine Civil Code Bill, in the provisions governing contract formation, reflects the convenience of compatibilizing domestic rules with international ones."
Given such considerations, the possibility of the reception by Brazilian law of the legal model on unsatisfactory performance adopted by the Vienna Convention, particularly as far as the contracting parties' obligations and non-performance are concerned, appear to be justified.
As a conclusion, we could point out the relevance and need for studies on the Vienna Convention in light of the fact that, although Brazil did not adhere to it, it may become applicable given its self-applicability -- art. 1(1)(a), as provided for by the Introduction to the Civil Code Act, the Arbitration Act, the MERCOSUR International Commercial Arbitration Agreement, and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, celebrated in New York, in June 10, 1958.
The study of the Convention is equally important in the light of its treatment of an obligation's defective performance, since, affording it maximal scope, without distinguishing whether the obligation is primary or secondary, it offers the injured party a number of options in those cases that, in contrast to Brazilian law, promotes an enhanced balance between the contracting parties; it also aims at contract preservation and limits the right to avoid the contract to cases of fundamental breach that cause such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract.
That concept -- that of fundamental breach -- by the way, foreign to Brazilian statutory law, would introduce considerable modifications in the structure of Obligations Law, whose acceptance among scholars and judges are already perceptible, in spite of the fact that Brazil has not adhered to the Convention so far.
One could say, in addition, that the Convention, adopting concepts coming from distinct legal systems, enables the reception of its concepts and legal structures by national legal systems in a relatively easy and flexible way. The full understanding of the Convention's mechanisms is the task of practitioners in the field of international trade and arbitration law. The great number of countries that adhered to the Convention demonstrates its elevated acceptance level and the possibility of its acceptance by countries whose legal systems are not always identical. As Jean-Paul BERAUDO points out, the Vienna Convention's wide acceptance "means that the legal rules it adopted are compatible with diversified, Civil and Common Law, legal traditions, and, in any case, that they are economically neutral."
Given the aspects that characterize and bring the Convention's legal model closer to Brazilian law, its reception would result in the following effects, among others:
|-||Translate into statutory provisions principles already accepted by scholars and case law;
|-||Expansion of the contracting parties' obligations, today basically limited under Brazilian law to the delivery of goods and payment of price;
|-||Expansion of the remedies placed at the creditor's disposal in the event of non-performance, today limited to specific performance and avoidance, that in most cases requires
judicial intervention and is costly and time-consuming, in way that is incompatible with the
speed and efficiency required in international trade;
|-||The contract preservation principle's provision in statutory law, necessary to the contract economy and economic relations continuity;
|-||Damages mitigation duty's provision in statutory law;
|-||Extension to civil and commercial contracts of the replacement and unsatisfactory performance reparation obligations, whose existence today is limited to commercial contracts only, to which apply only the first one, and consumer contracts, to which both apply; and
|-||The statutory maintenance in civil law of the unsatisfactory obligation performance concept, as provided for by art. 1.056 of the Civil Code of 1916 and the Convention, in light of the fact that it was omitted from counterpart art. 389 of the new Civil Code.|
Finally, one could state that the Vienna Convention is a valuable harmonization instrument in light of the accelerated and unavoidable process of globalization of markets, whose effects are perceptible in member countries of Mercosur that have internalized it, as recommended by the V Inter-American Conference Specialized in Private International Law - also referred to as CIDIP V.
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* This essay is based on a paper presented to the specialization course named The New International Law – Specialization in International Law of the School of Law of the Federal University of Rio Grande do Sul, in August 7, 2001, as partial requirement for the diploma of 'Specialist in International Law', under the coordination of the Professor Véra Maria Jacob de Fradera. This article was recently published in its Portuguese version as Chapter in the Book O Novo Direito Internacional – Estudos em homenagem a Erik Jaime, under the direction of the Professors Cláudia L. Marques and Nádia de Araujo, Rio de Janeiro, Renovar, 2005, pp. 497-548.
** Doctoral studies jointly coordinated by Robert Schuman University -- Strasbourg III, France, and University of São Paulo – USP; D.E.A. (LL.M) in International Law; (Robert Schuman University -- Strasbourg III); Master in International Law and Law of Integration (Federal University of Rio Grande do Sul -- UFRGS). Diploma of 1st and 2nd Grade at the Faculté International de Droit Comparé (Association International de Droit Comparé); Brazilian attorney at the Porto Alegre and Vitória Bars Associations.
1. Quoted by Professor Kurt H. NADELMANN in the Prologue to the Mexican edition of André TUNC e Suzanne TUNC book: El Derecho de los Estados Unidos de América: Instituciones judiciales, fuentes y técnicas, 2 ed., México, D. F.: Imprenta Universitaria, 1957.
2. This essay was translated by Ana Gerdau de Borja, Diego Fraga Lerner, Eduardo Guimarães Wanderley, Fernando Lusa Bordin, Filipe Scherer Oliveira, Lucas Lixinski, Mariana Furlanetto Somensi, Miguel Augustin Kreling, Rafael Pellegrini Ribeiro. The translation work was organized, and the translated version was revised, by Miguel Augustin Kreling and Felipe Francisco Ballvé Alice (LL.M. University of Texas at Austin). All these people are students at the School of Law of the Federal University of Rio Grande do Sul.
3. Hereinafter Convention or Vienna Convention, as it is commonly known.
4. This expression, widely accepted by European scholars, is used to demonstrate the high level of acceptance of the Vienna Convention, today ratified and adhered to by 62 States, among them: Germany, Argentina, Australia, Bulgaria, Canada, Chile, China, Cuba, Ecuador, United States of America, Finland, France, Greece, Italy, England, Iraq, Luxembourg, Mexico, Norway, New Zealand, Peru, Russia, Uruguay and Venezuela. According to Professor Claude WITZ, Le champ d'application de la Convention de Vienne, in: La vente éclatée, p. 79: "Un droit mondial de la vente internationale de marchandises se met progressivement en place". In 1989, an arbitrator designated the Vienna Convention as a universal rule, bearing in mind the number of possible ratifications and adherences in the near future (Decision given in Arbitral Award CCI n° 6281, JDI, 1989, p. 1114). These assertions have been confirmed mainly because of the actual number of ratifications and adherences. However, the Convention's vocation to become a universal rule on the subject results from its own making-process; the treaty-making, by opening the opportunity of its application through the rules of private international law, created a way to gather a larger number of States.
5. Patrícia Bezerra de M. GALINDO DA FONSECA, O Brasil perante uma Nova Perspectiva de Direito Mercantil Internacional. (Brazil before a new perspective of international commercial law), inRevista Forense, vol. 341, abril 1998, p. 193. As the author emphasizes, (op. cit., p. 193), the Convention "was written under the goal of facilitating the international trade. The analysis of the text reveals itsdegree of commitment through the promotion of a normative body that aims at regulating, whenever possible, the inevitable conflicts arisen from the commercial and legal relations progressively intensified."
6. In the same way as the BGB (Bürgerliches Gesetzbuch -- German Civil Code).
7. Act 10.406 of January 10, 2002, effective since January, 11 2003.
8. "Art. 1° -- This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (...);
9. However, one should note that the Convention's application due to this rule is possible only if the Contracting State did not present the reservation established in article 95, which provides that any State may "declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1) (b) of article 1 of this Convention."
10. Opened to signature during the closing session of the Conference, only 5 countries, from a group of 62 States (including Brazil) signed the Convention: Austria, Chile, Gana, Hungary and Yugoslavia (XII Plenary Session held in Vienna on April 11, 1980) (A/CONF.97/SR12). In A/CONF.97/19 - Conferencia de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderias -- Documentos Oficiales. Nueva York: Naciones Unidas, 1981. According to article 91, the Convention was opened was opened to signatures at the Headquarters of the United Nations until September 30, 1981 and opened to accession by any State which is not a signatory party from April 11, 1980 onwards.
11. Act 4.657 of September 4, 1942.
12. "Art. 9°. The obligations are governed by the law of the country where they are incurred (...);
§ 2°. The obligation arising from the contract is constituted in the place where the proponent resides"
13. "Art. 2°At the parties' discretion, arbitration may be conducted under the rule of law or in equity.
§ 1° The parties may freely choose the rules of law applicable in the arbitration provided that their choice does not violate good morals and public policy.
§2° The parties may also agree that the arbitration shall be conducted under the general principles of law, customs, usages and international rules of trade". (Act 9.307/96)
14. See: Economic Agreement Mercosur -- Chile enacted in June 25, 1996.
15. The Convention entered in force in Argentina through the Act 22.765 of May 24, 1983. In Chile, through Act 544 of December 3, 1990 and in Uruguay through Act 16.879 of January 2, 2000.
16. Promulgated by Decree 4.719 of May 4, 2003. The content of this Agreement is identical to the Agreement on International Commercial Arbitration signed by Mercosur, Bolivia and Chile. (Council Decision 4/98). For a better understanding of these and other agreements on international arbitration, see María Blanca NOODT TAQUELA, Arbitraje internacional en el Mercosur, Buenos Aires, Ciudad Argentina, 1999.
17. About the Vienna Convention's applicability in Brazil, see the recent PhD. paper : Iacyr de Aguilar VIEIRA, La Convetion des Nations Unies sur les contrats de vente internationale de marchandises et son applicabilté au Brésil, Thèse, Strasbourg, 2003.
18. Luis Renato FERREIRA DA SILVA, Das regras contratuais no MERCOSUL: as normas conflituais e as normas de Direito Material. In: MERCOSUL -- Seus efeitos jurídicos, econômicos e políticos nos Estados-Membros. Maristela Basso (org.) Livraria do Advogado Editora: Porto Alegre, 1997, pp. 189-208, specially p. 205. Alejandro M. GARRO, Armonización y unificación del derecho privado en América latina: esfuerzos, tendencias y realidades. In Direito e Comércio Internacional -- Tendências e Perspectivas. Estudos em homengam a Irineu Strenger, São Paulo: LTr, 1994.
19. Iacyr de Aguilar VIEIRA, O interesse na utilização de um Direito Uniforme sobre a venda internacional, como é o caso da "Convenção das Nações Unidas sobre Contratos de Compra e Venda Internacional de Mercadorias": o equilíbrio das suas regras, a sua compreensão e seu caráter incompleto. In Direito internacional privado. Luis Fernando FRANCESCHINI e Marcos WACHOWICZ (organizers), Curitiba, Juruá, 2001, p. 187.
20. It is important to note, however, that it will be inevitable to constantly refer to statutes repealed by the new Code because of the treatment and conflicting solutions sometimes admitted in these acts and that the reform wrongly, in our view, did not consider improvements, specially those embodied in the case law of the Superior Court of Justice, as will be shown.
21. The subject matter was regulated by the Civil Code of 1916 in different parts. The defective performance category was admitted in art. 1.056, that provided that any obligation had to be fulfilled at the time and manner agreed; in the redhibitory defects specific provisions (arts. 1.101 et seq.); in the eviction provisions (art. 1.107 et seq.); in other provisions on defects in general, including defects at law (claims of third parties).
22. Although repealed by the new Civil Code, that entirely repealed the First Part of the Commercial Code, the comparative analysis taking into consideration these norms does not bring any disadvantage to the consideration of the subject, and does make it obsolete, for the defects regulatory schemes of the Civil Code of 1916 and Commercial Code were similar.
23. Karl LARENZ, Derecho de Obligaciones, Volume I. Madrid: Editora Revista de Derecho Privado, 1958, p. 362 e 363.
24. Karl LARENZ. Op. cit., p. 363 et seq.
25. Mário Júlio de ALMEIDA COSTA, Direito das Obrigações. Coimbra: Coimbra Editora, 1984, p. 742 et seq.
26. Mário Julio de ALMEIDA COSTA. Op. cit., p. 743 et seq. Concerning this point, the author complements: "in fact, with regard to damages stemming from the lack of a perfect performance and not from specific damages caused by the defective performance itself the situation is sent back to the hypothesis of material breach or delay."
27. PONTES DE MIRANDA. Tratado de Direito Privado, T. XXXVIII, Rio de Janeiro: Borsoi, 1962, p. 142.
28. Orlando GOMES, Obrigações, 8ª edição. Rio de Janeiro: Forense, 1992, p. 208.
29. Véra Maria Jacob de FRADERA. O conceito de inadimplemento fundamental do contrato no art. 25 da lei internacional sobre vendas, da Convenção de Viena de 1980, in Revista da Faculdade de Direito da UFRGS, vol. 11, p. 59.
30. Ruy Rosado AGUIAR JÚNIOR. Extinção dos contratos por incumprimento do devedor. Rio de Janeiro: Aide Editora, 1991, p. 124.
31. AGUIAR JÚNIOR. Op. cit,p. 124.
32. Araken de ASSIS. Resolução do contrato por inadimplemento, 2ª ed. São Paulo: RT, 1994, p. 115.
33. ASSIS. Op. cit., p. 115.
34. According to AGUIAR JÚNIOR (Op. cit., p. 92 et seq): "the main obligation is the one which tends to fulfill the scope of the agreement, as an objective result of its scope in the contractual framework (payment of the price and delivery of the goods, in sales; ...) The ancillary obligation is the one which aims to complement or to guarantee the performance of the main obligation. (...) The secondary duties, which arise from the principle of good faith and may or may not be independent regarding the main obligation are classified as protection, cooperation, help, appointment and explanation duties".
35. Pedro Romano MARTINEZ. Cumprimento defeituoso: em especial na compra e venda e na empreitada. Coimbra: Almedina, 1994, p. 129.
36. MARTINEZ. Op. cit., p. 143.
37. MARTINEZ. Op. cit., p. 154.
38. MARTINEZ. Op. cit., p. 30.
39. MARTINEZ. Op. cit., p. 38.
40. MARTINEZ. Op. cit., p. 28.
41. Clóvis Veríssimo do COUTO E SILVA, A obrigação como processo, São Paulo, Bushatsky, 1976.
42. MARTINEZ. Op. cit., p. 143 et seq.
43. MARTINEZ. Op. cit., p. 148.
44. MARTINEZ. Op. cit., p. 148.
45. MARTINEZ. Op. cit., p. 150.
46. MARTINEZ. Op. cit., p. 151.
47. However, as mentioned by Prof. Cláudia Lima Marques when defending the monography that originated this work before the Board of examiners of the Course "Novo Direito Internacional", the Convention, in excluding of this field of application the sale of merchandises for personal utilization, familiar or domestic, excepted the hypothesis of exclusion when the seller, before or at the moment of celebration of he contract, does not know nor should know that the merchandises are acquired with such objective, pursuant the rule of its art. 2(a)..
48. Notwithstanding, eventual references to provisions of the consumers' protective legislation will be shown in order to illustrate some solutions presented by the Convention framework do not collide with the Brazilian juridical traditions and do not mean, were them applied, a simple importation of the Common Law,once many concepts found at the Convention of Vienna are already known by the Brazilian Juridical System throughout the Consumers' Protection Code.
49. ALMEIDA COSTA. Op. cit., p. 698.
50. ALMEIDA COSTA. Op. cit., p. 743.
51. "Art. 763.° (Performance of the duty in the whole): 1. The duty must be performed in the whole and not in parts, unless otherwise agreed or imposed by statutes or use."
52. PONTES DE MIRANDA. Tratado, § 4.213.
53. MARTINEZ. Op. cit.,p. 145 et seq.
54. As an example of Unsatisfactory Contract Performance before the lack of contractual stipulation on the way of realization of the service, COUTO E SILVA (op. cit, p. 42) offers us the hypothesis of the trader who contracts the installation of a billboard in order to publicize his products and the advertisement is installed in an area of little movement; the propaganda would provide no impact on the sale of the added products, hence. In this case, according to the author, the trader could not consider the service satisfactorily performed, once, although not stipulated in the contract where the billboard should be installed, the contracted company should have taken in consideration the objective-reason of the realization of the transaction, since there would be no interest of the trader in promoting the add of his products in a inappropriate place considering his objectives.
55. MARTINEZ. Op. cit., p. 144.
56. MARTINEZ. Op. cit., p. 144.
57. MARTINEZ. Op. cit., p. 144 et seq.
58. MARTINEZ. Op. cit., p. 146.
59. MARTINEZ. Op. cit., p. 145.
60. MARTINEZ. Op. cit., p. 147.
61. See the valuable work, about the influence of the BGB in the Brazilian Civil Law, of Dr. Cláudia Lima Marques, entitled "Cem anos de Código Civil Alemão: o BGB de 1886 e o Código Brasileiro de 1916", in RT 741/11.
62. LARENZ. Op. cit., p. 362.
63. "Art. 1.056. The promisor who does not perform his promise, or does not render performance in a way and time in accordance to the agreement is liable for damages."
64. The Art. 214 of the Commercial Code sets forth:"The seller has an implied duty of merchantability even when she disclaims all liabilities in the contract unless the buyer, aware of the risks at the time of the sale, expressly assumes the risk in the contract. This provision does not encompasses the risk towards sold goods that might be of property of a third party."
65. AGUIAR JÚNIOR Ruy Rosado de. A Convenção de Viena (1980) e a resolução dos contratos por incumprimento. In Revista da Faculdade da UFRGS, vol. 10, p. 10.
66. AGUIAR JÚNIOR. A Convenção de Viena....; PONTES DE MIRANDA, Tratado..., Tomo VI, p. 289.
67. BRAZIL. Superior Tribunal de Justiça. Ação de Reparação de Danos Decorrentes do Cumprimento Imperfeito de Contrato de Compra e Venda. Resp. n° 52075/ES. Industrial Malvina S.A. versos Coopersanto Industrial S.A. Relator: Ministro Ruy Rosado de Aguiar Júnior. Diário de Justiça, 21.11.1994, Brasília, p. 34352.
68. Ibidem. Cf. BRAZIL. Superior Tribunal de Justiça. Ação de Reparação por Danos ao Prédio. Resp. n° 72482/SP. Condomínio Orion versos Estrutura Incorporadora e Construtora Ltda. Relator: Ministro Ruy Rosado de Aguiar Júnior. Diário de Justiça. 08.04.96, Brasília, p. 10474.
69. About the eviction's rules in the Commercial Code, see what is provided for by the withdrawn articles 214 to 216.
70. "Art.389. If performance is not rendered, the breaching party will be liable for damages, plus interest and losses of money value due to inflation according to regularly established official indexes, and attorney's fees."
71. The guidelines adopted by the Commission entitled to draft the new Code were: to preserve at the most the Civil Code of 1916, due to its intrinsic praiseworthy and to the case law and doctrinal heritance constructed over its dominium; to use at the most the works elaborated within the former commissions, making use of the doctrinal arsenal; to observe the impossibility of effecting a short revision due to the modifications suffered by the society and to the modification of the techno-scientific paradigm during this century; to use only the concepts and the subjects already known and admitted by the critical experience, leaving for the especial legislation the regulation of the new or complex issues; to observe in elaborating the Code certain essential values like the ones of ethics, sociability and operativeness. Cf. Miguel REALE, Visão geral do Novo Código Civil, in Estudo comparativo com o Código Civil de 1916, Constituição Federal, Legislação Codificada e Extravagante, cit., pp. XI-XII.
72. Formula, by the way, reproduced from the former Code, inscripted in art. 955.
73. AGUIAR JR. A Extinção dos Contratos..., p. 117.
75. MARTINEZ. Op. cit., p. 158.
76. In this sense, compare to ALMEIDA COSTA. Op. cit., p. 742 et seq.
77. A better example is the one from Clóvis Beviláqua who, while commenting on art. 955 of the Civil Code, affirms "that the breaching party who does not render a timely payment or does not render it in the agreed place; or that does not perform in the fashion it was agreed will be deemed to incur in delay". Clóvis BEVILÁQUA, Código Civil dos Estados Unidos Comentado, vol. IV, Rio de Janeiro: Paulo de Azeredo, 1958, p. 88.
78. In Brazil, the Commercial Code regarded it solely as a delay in the performance of the obligation -- Art. 202.
79. And also in the hypotheses of defects in law that come together with the thing.
80. In Brazil, the Commercial Code regarded it solely as a delay in the performance of the obligation -- Art. 202.
81. "Art. 441. The goods received as a result of a bilateral contract may be rejected as a result of hidden defects that make it improper for its use or reduces its value.
Sole Paragraph. This disposition is applicable to conditional unilateral contracts."
82. The revoked article 210 of the Commercial Code provided as follows: "Art. 210. The seller even after delivery will be liable for hidden defects of the goods sold, which the buyer would not be able to discover before having an opportunity of reasonably inspect the goods and which renders the goods improper for its destined use or that would diminish its value to a point that had the buyer knowledge of it, she would not buy the goods or she would pay a lower price".
83. Miguel Maria de SERPA LOPES, Curso de Direito Civil, vol. III, 4ª ed. Rio de Janeiro, Freitas Bastos, 1991, p. 156. Cfr. Silvio RODRIGUES, Direito Civil, vol. III, 22ª ed. São Paulo, Saraiva, 1994, p. 101; Caio Mário da Silva PEREIRA, Instituições de Direito Civil, vol. III, 10ª ed. Rio de Janeiro, Forense, p. 75; Washington de Barros MONTEIRO, Curso de Direito Civil, 2° vol., 3ª ed. São Paulo, Saraiva, 1962, p. 55; and Orlando GOMES, Contratos, 16ª ed. Rio de Janeiro, Forense, 1995, p. 94.
84. It is interesting the New Civil Code provision -- Art. 446 -- which sets forth the term for the exercise of the right regarding the redhibitory defects of a contract: "the term of the previous article does not count in the existence of a guarantee clause; but the buyer must denounce the defect to the buyer in thirty days following the time the defect was noticed, the non-exercise of such a right in time results in its termination." The present author understands that this provision that regulates the possibility of a suspension of the terms referred to in Art. 445 clearly distinguishes the legal regime of the situation where there is a guarantee clause from the one there is no guarantee.
85. This can be inferred from the subjective concept of defect. See supra note n. 95.
86. MARTINEZ. Op. cit. , p. 154.
87. BEVILÁQUA. Op. cit., p. 214.
88. GOMES. Contratos, p. 93.
89. PEREIRA. Op. cit., p. 63. Hereby it is stated the concept of the unsatisfactory performance, and that the importance of verifying the relevance of the defect and the typical harm; elements that constitute the unsatisfactory performance.
90. MONTEIRO. Op. cit., p. 55.
91. Idem, p. 57.
92. SERPA LOPES. Op. cit., p. 151 et seq.; MONTEIRO. Op. cit., p. 55 et seq.
93. MONTEIRO. Op. cit., p. 58.
94. Ibidem, p. 59.
95. SERPA LOPES. Op. cit., p. 152.
96. MARTINEZ. Op. cit., p. 201.
97. PONTES DE MIRANDA, when writing on the "time where one could contemplate the defect of a good", says that "the moment of conclusion of a contract has always been taken as decisive. More recently, however, F. Pringnsheim (The Decisive Moment for Aedilician Liability, Archiv d'Histoire du droit oriental, Revue internationale des Droits del l'Antiquité, I, 545-556) has shown that the Roman documents did not lead to such a conclusion, which was taken as granted all over. The decisive moment is that of the traditio". Tratado ..., § 4.233-3, p. 278.
98. It seems as though that is also the formula indicated by art. 18 of the Consumers Protection Code: "the suppliers of lasting and non lasting consumption goods are severally liable for the quality or quantity defects that make such good improper or inadequate for their destined consumption or that reduce their value, or that relate to the disparity with the containers, packaging, labeling, or advertisements, being considered the natural variations due to the nature of the goods, so that the consumer can ask for the replacement of the defective parts." (Emphasis given)
99. PONTES DE MIRANDA. Op. cit., p. 280. That is why PONTES affirms that the subjective concept of defect prevails over the objective one (op. cit., p. 149), since not only its usual characteristics are taken into account, but also the ones that individualize the good; it is rare to negotiate a good per se, simply for its genre or class, without further details.
100. The difference lies on the fact that, according to MARTINEZ (op. cit., p. 156 et seq.), it is not possible to "consider that the defective performance has as consequence the partial satisfaction by the creditor. That is possible, but is not always the rule. And, even when the creditor's interests get satisfied, the violation of the duty of performance does not result in a partial lack of performance because the legal means offered to the creditor, in case there is an unsatisfactory performance (e.g., to require the debtor to correct the defects), go far beyond the legal provisions for the lack of performance or for the partial lack of performance. The lack of performance and the partial lack of performance presuppose that the creditor have accepted only part of the obligation. (...) In short, the partial lack of performance corresponds to a merely quantitative look at this sort of lack of performance, which does not mean an inaccurate performance".
101. PONTES DE MIRANDA. Op. cit., p. 140.
102. The understanding of this principle can be thoroughly verified in the Brazilian judicial decisions, such as those of the STJ mentioned in notes n. 67 and 68.
103. In the circumstances of redhibitory defects and defects of right where the specific rules are not referred to due to legal or contractual terms, the creditor could benefit from the rule of Art. 1.056, whose limitation period was of twenty years and where the fault of the debtor had to be proved. See the interesting and recent decision of the 4ª Turma of the STJ in RESP 406590/PR, where for the unsatisfactory performance of a supply contract between two companies it was decided that "the buyer that receives part of the defective good and neither pays nor acts on the grounds of the law provisions against the seller loses his or her right of complaint against it, but does not lose the right of terminating the contract in fifteen days for the future". BRASIL. Superior Tribunal de Justiça. Ação de Resolução de Contrato de Compra e Venda cumulada com Pedido de Perdas e Danos. Resp. n.° 406590/PR. Cerâmica Porto Ferreira Ltda versos Casagrande Pisos Cerâmicos Ltda. Relator: Ministro Ruy Rosado de Aguiar Júnior. Diário de Justiça, 16.09.2002, Brasília, p. 00194.
104. "Art. 4°. When the law is negligent, the judge shall decide based on analogy, customs, and general principles of law.".
105. See the interesting vote of the Judge Ruy Rosado in the recent judgment of the RESP 406590/PR (cited in the commentary 101) where, before the conduct of the parts in the execution of a sales and supply contract, manifested:
106. See commentary 68.
107. As notices the Professor Iacyr de Aguilar VIEIRA to the « Center of Company Law of the University of Lausanne -- CEDIDAC, Switzerland: "ainsi, le nouveau texte a été élaboré sur la base du Code antérieur mais a pris en compte la modification de la société brésilienne et reflète le changement d'une économie basée sur la structure rurale et agricole à une économie basée sur la structure urbaine et industrielle. Cette préoccupation avec les changements sociaux et économiques a dirigé la construction de la structure de la nouvelle loi. (...) En ce qui concerne la construction intellectuelle, le Code civil de 2002 a opéré une modification très importante : la structure ouverte de plusieurs de ses dispositions. En utilisant de clauses générales, de concepts indéterminés et de standards juridiques, le Code civil de 2002 a rompu avec le formalisme très contraignant du Code de 1916, laissant aux juges une grande place lors de l'application de la norme au cas concret. L'utilisation de principes (comme le principe de la bonne foi dans la formation et dans l'exécution du contrat) et l'utilisation de standards juridiques (comme les fins sociales, le bonnes mœurs, la fonction sociale de la propriété et la fonction sociale du contrat) vont permettre aux juges d'appliquer au plus haut degré l'équité et la justice aux cas concrets". Iacyr de Aguilar VIEIRA., L'entrée en vigueur du nouveau Code civil brésilien. Strasbourg: December, 2002. (Article unpublished awaiting publication).
108. The new Civil Code did not reproduce the rule then existent in the Code of 1916 that stipulated that unless express clause in the contract, the ignorance of such vices by the seller did not exempt him of his responsibility (Art. 102). However, it will be annullable by the rule of Art. 145 of the new Civil Code the clause that establishes that the seller is not liable if he acted with bad faith in the dissimulation of the vice that, if the creditor had knowledge, would not allow a stipulation of such clause or would make impracticable the deal itself.
109. The new Civil Code, as well as in the former, especially in the ruling of the redhibitory vices, does not foresee the possibility of substitution of the defective good, differently of the Vienna Convention. In the revoked part of the Commercial Code, as well there was not such provision. However, we believed it possible to apply, by analogy, the rule of its Art. 209, where it was foreseen the substitution in the hypothesis that, completed the sale, the seller had alienated, consumed or deteriorated the sold good. In reference to the substitution, Fran MARTINS, in the book Obligations and Commercial Contracts, 14th edition, Rio de Janeiro, Forense, 1999, n.° 136, mainly, p. 170, says the following: "when the delivery of the good operates in installments, the buyer must make complaints about the hidden vices in the proportion that receives each installment. If, in the sold good, the part in which exists the hidden vice is substitutable, the seller is obliged to substitute only this part and not the whole, unless that the whole is so connected with the substitutable part that the substitution of this brings damages to that". Since in the consumer relations, this possibility exists and is foreseen in Articles 18 and 19 of the Consumer Code, being possible in our understanding, to be applied by analogy to the sales contracts such as its Regulated by the new Code and in the occurrence of silence between the parts.
110. PONTES DE MIRANDA. Op. cit., p. 302.
111. PONTES DE MIRANDA. Op. cit., p. 302.
112. PONTES DE MIRANDA. Op. cit., p. 302.
113. PONTES DE MIRANDA. Op. cit., p. 303.
114. GOMES (Contratos, p. 95 et seq) says as well, based on Saleilles, that the reduction of the price proportionally to the reduction of the value is the base of calculation the most fair for the reduction.
115. Under the aegis of the revoked texts, innumerable were the decisions in the sense that the initial term for the redhibitory and estimatory actions not always was of the tradition, but of the recording, in the sale of real estate; of the experimentation, in the sale of machines; of the 2nd delivery, in the substitution of the defective good; of the examination or of the fixing of the good; or still of the relevancy of the vice, when evident the impossibility of knowing it in a short legal term. See RT 464 and JB 5/108.
116. Inexistent provision in the last rules.
117. In relation to the revoked texts, the new Code extended the terms before foreseen in the Commercial Code, that was of 10 days for complaint, as well as in the Civil Code, that was of 15 days for the movable asset and of 6 months for the real estate, counted of the tradition/ recording.
118. "Art. 447. In the onerous contracts the seller answers for the eviction. This guarantee subsists even if the acquisition has taken place in public auction".
119. "In the onerous contracts, by which the dominion is transferred, possession or use, it will be obliged the seller to protect the buyer of the risks of eviction, every time when this responsibility has not been expressly excluded.
Only paragraph. The parts can strengthen or diminish this guarantee".
120. See commentary 102.
121. In the Consumer Code, these are the following options of the creditor towards the occurrence of a breach of contract, i.e., the existence of vice in the product:
Art. 18. The suppliers of consumer goods non-perishable and perishable answer with solidarity for the vices of quality of quantity that make them improper or inadequate for the use to which they are destined (to) or that reduce their value, as well as for those deriving from the disparity, with the indications present in the container, in the packaging, labeling, or advertisement, respected the variations arising out of its own nature, being possible to the consumer demand the substitution of the defective parts.
Para. 1° Not being the vice cured in the maximum period of thirty days, the consumer may demand alternatively and to its own choice: I -- the substitution of the product for another of the same kind, in perfect usage condition; II- the immediate restitution of the paid amount, monetarily updated, without compensation of eventual damages and losses; III -- the reduction proportional to the price.
Para. 2° The parties may stipulate the reduction or extension of the term providedin the previous paragraph, not being possible to be inferior to seven nor superior to one hundred and eighty days. In the adhesion contracts, the term clause must be stipulated separately, by an express declaration of the consumer.
Para. 3° The consumer may make immediate usage of the options of Para. 1° of this article whenever, due to the extension of the vice, the substitution of the defective parts may compromise the quality or characteristics of the product, diminish its value or if it is an essential product.
Para. 4° Having the consumer chosen the option of the sub-paragraph I of the § 1° of this article, and not being possible the substitution of the good, there can be substitution for another of kind, brand or diverse models by means of complementation or restitution of eventual difference of price, without interference in the disposed in the sub-paragraphs II and III of the Para. 1 of this article.
Art. 19. The suppliers answer with solidarity for the vices of quantity of the product whenever, respected the variations decurrent of its own nature, its liquid content is inferior than the indications stated in the container,, packaging, advertisement, being possible for the consumer to demand, alternatively and to his own choice:
I -- the proportional reduction of the price;
II -- complementation of the weight or measurement;
III -- the substitution of the product for another one of the same kind, brand or model, without the mentioned vices;
IV -- the immediate restitution of the paid sum, monetarily updated, without harm to an eventual compensation.
Para. 1° Applies this article the disposed in Para. 4 of the previous article.
Para. 2° The immediate supplier will be responsible when he weighs or measures and theutilized instrument is not calibrated according to the official standards".
122. AGUIAR JÚNIOR. A Extinção dos Contratos..., p. 124.
123. AGUIAR JÚNIOR. A Extinção dos Contratos..., p. 124.
124. MARTINEZ. Op. cit., p. 132.
125. Harriet Christiane ZITSCHER, Introdução ao direito civil alemão e inglês, Belo Horizonte, Del Rey, 1999, at 152.
126. "Article 35:
(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.
(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless
(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.
(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity."
127. "(...) il est permis de considérer qu'une marchandise n'est conforme que si elle répond , d'une part, à la description qui en est fait dans le contrat, et, d'autre part, aux attentes qu'une personne raisonnable de même qualité que l'acheteur, placée dans la même situations, aurait pu entretenir". Vincent HEUZE, La vente internationale de marchandises. Collection de Traité des contrats sous la direction de J. Ghestin, Paris, L.G.D.J., 2000, p. 252.
128. Maria Ângela Bento SOARES and Rui Manoel Moura RAMOS, Contratos internacionais,Coimbra, Almedina, 1986, p. 90.
129. Luiz Olavo BAPTISTA and Aníbal Sierralta RÍOS. Aspectos jurídicos del comercio internacional, 2ª ed. Lima, Fondo Editorial de La Academia Diplomática del Perú, 1993, p. 104.
130. "Article 39:
(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.
(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee."
131. "Article 25:
A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result."
132. FRADERA. Op. cit., p 62. Here, the author presents us an example of applicability of article 25 in the dynamic and unpredictable environment that is the International Commerce: "A seller that is unaware of its duties of packaging does not take the necessary steps in order to protect the goods, but there is no harm to the goods and the arrive safely to the buyer's hands. In fact, there were a failure on a fundamental duty, but this failure did not resulted in a loss to the buyer. If, however, the buyer had lost the chance to resale the goods or had lost a client, the situation would cause a substantial loss, and in this case article 25 would apply."
133. AGUIAR JÚNIOR. A Convenção de Viena (1980)..., p. 10.
134. "Article 26:
A declaration of avoidance of the contract is effective only if made by notice to the other party."
135. AGUIAR JÚNIOR. A Convenção de Viena (1980)..., p. 10.
136. U.N. Document A/CONF. 97/5, 14 March 1979. inA/CONF.97/19 - Conferencia de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderias -- Documentos Oficiales. Nueva York: Naciones Unidas, 1981.
137. FRADERA. Op. cit., p. 62.
138. U.N. Document A/CONF. 97/5, 14 March 1979. inA/CONF.97/19 - Conferencia de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderias -- Documentos Oficiales. Nueva York: Naciones Unidas, 1981.
139. MARTINEZ. Op. cit., p. 153.
140. MARTINEZ. Op. cit., p. 144.
141. SOARES and RAMOS. Op. cit., p. 90.
142. "Article 40. The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer."
143. Of same solution is the responsibility of the seller by the deficiencies in law, presented in art. 41 and ff.
144. The matter relating to the passing of the risk is regulated in articles 66 to 69 of the Convention.
145. "Article 38:
(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.
(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.
(3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination."
146. BAPTISTA and RÍOS. Op. cit, p. 107.
147. SOARES and RAMOS. Op. cit., p. 96.
148. BAPTISTA and RÍOS. Op. cit., p. 108.
149. "Article 45(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77;
(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies;
(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract."
150. One may cite the principle of reasonableness (art. 8(2) (3); 25; 35; 60; 79(l)), the principle of preservation of the contract, that makes it possible to prefer a remedy favoring the valid existence of the contractual bond against its premature extinction by party initiative (art. 19(2); 25-26; 34; 48; 49; 51(1); 64; 71-72) and the good faith principle, that occupies, in the Convention, a particular position the exact implication of which is still to be discovered (art. 7(1)). On the principles that inform the Convention, see Judith MARTINS-COSTA, Os princípios informadores do contrato de compra e venda internacional na Convenção de Viena de 1980, inRevista da Faculdade de Direito da Universidade Federal do Rio Grande do Sul, vol. 11, p. 40-54.
151. "Art. 481. By a contract of sale, one of the contracting parties is obligated to pass title to a certain thing, and the other, to pay him the price".
152. That provision was inherited from art. 199 of the Commerce Code. Considering the language then effective, one could say that the Civil Code was silent as to the time, place, manner, and to whom the purchased good was to be handed over. In turn, the Commerce Code provided, though sparingly, that the goods were to be handed over as soon as the contract was concluded, at the time and in the manner specified therein -- art. 197, and at the place where they were found at the time of sale, unless agreed otherwise -- art. 199.
153. "Art. 493. The purchased thing, unless agreed otherwise, shall be handed over (to the buyer) at the place where it was found at the time of the sale".
154. "Art. 490. Unless otherwise agreed, the buyer shall bare the costs of executing the deed and recording, and the seller, those of delivery."
155. GOMES. Op. cit., p. 232.
156. BAPTISTA and RIOS. Op. cit. p. 104.
157. GOMES. Op. cit., p. 232.
158. Pursuant to the Commerce Code -- the pertinent portion thereof was repealed -- the interpretation criteria were the following:
"Art. 130. The language of commercial contracts and conventions shall be wholly understood in accordance with the usages and practices of trade, and in the same manner and sense in which merchants usually express themselves, since if otherwise understood may mean something else.
Art. 131. If necessary to interpret the contract clauses, the interpretation, in addition to the rules aforementioned, shall be governed by the following guidelines:
1 -- the simple and appropriate construction, that is the most in conformity with good faith, and the true spirit and nature of the contract, shall have precedence over the strict and narrow meaning of words;
2 -- the doubtful clauses shall be understood by those that are not, and that the parties have admitted; and the preceding and succeeding ones, that are in harmony, shall explain the ambiguous ones;
3 -- the conduct of the parties after the contract, that bears any relation to the main subject matter, shall be the best explanation of the intention the parties had at the time of conclusion of that contract;
4 -- the usage and practice generally observed in commerce in the cases of identical nature, and specially the custom of the place where the contract shall be performed, shall prevail over any contrary construction that one intends to give the words;
5 -- in doubtful cases, which cannot be solved pursuant to the established guidelines, one shall decide in favor of the debtor".
159. "Art. 474. The express resolutive clause operates without any judicial formality; the implied one requires judicial intervention".
160. "Art. 475. The party injured by a breach may seek avoidance of the contract, if he does not elect to seek performance, in either case being available compensation for damages".
161. See footnote 102.
162. BAPTISTA and RÍOS. Op. cit., p. 113.
163. Regarding the issue of circulation of legal models in international trade law, the remarks of Maristela Basso are interesting. Maristela BASSO, Contratos Internacionais do Comércio, Porto Alegre, Livraria do Advogado Editora 1994, p. 175-179, citing to Miguel REALE and his important book, "O Direito Como Experiência" (Law as Experience) (1968), whose "Ensaio VII" (Essay 7) deals with "Estruturas e Modelos da Experiência Jurídica -- O Problema das Fontes do Direito" (Structures and Models of the Legal Experience -- The Problem of the Sources of Law), show how legal models may circulate in the favorable field of commercial law. The commentator's citation to the learned scholar REALE is complete and suitable, and its reading illustrates the importance of legal models' circulation for the development and improvement of law as a general theory and of national legal systems as practice of existential life.
164. Nevertheless, the Convention itself provides a rule for filling gaps: "Art. 7 (...) (2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law".
165. BAPTISTA and RIOS. Op. cit., p. 95.
166. In contrast to the preceding Hague Conventions of 1964, which dealt with contract formation and sales in different instruments.
167. Iacyr de Aguilar VIEIRA, O interesse na utilização de um Direito Uniforme sobre a venda internacional, como é o caso da "Convenção das Nações Unidas sobre Contratos de Compra e Venda Internacional de Mercadorias": o equilíbrio das suas regras, a sua compreensão e seu caráter incompleto. (The interest in the use of a Uniform Law on international sales, as is the case of the "United Nations Convention on Contracts for the International Sale of Goods": the balance of its provisions, its scope and incomplete character), in Direito internacional privado. (Private International Law) FRANCESCHINI, Luis Fernando e WACHOWICZ, Marcos (org.), Curitiba: Juruá, 2001, p. 173-174.
168. VIEIRA. O interesse na utilização de um Direito Uniforme..., p. 174.
169. Irineu STRENGER, Contratos internacionais do comércio (International commercial contracts), 3ª edição. São Paulo: LTr Editora, 1998, p. 86. Pursuant to Nádia de Araújo, "the law relating to international sales has been identified as one of the areas the most amenable, in the field of private law, to a uniformization of a universal character. In this field, the harmonization through conflict of laws rules was deemed insufficient as to secure foreseeability of solutions pertinent to the subject matter, for each contract, notwithstanding the application of the same conflict of laws rules, could yet be governed by a different domestic law." In Nádia de ARAUJO, Autonomia da vontade, Mercosul e conexões internacionais (Freedom of contract, Mercosur and international connections), Rio de Janeiro, Renovar, 1997, p. 121.
170. VIEIRA. O interesse na utilização de um Direito Uniforme..., p. 175.
171. VIEIRA. O interesse na utilização de um Direito Uniforme..., p. 175.
172. GALINDO DA FONSECA. Op. cit., p. 194.
173. Jean-Paul BERAUDO, La Convention des Nations Unies sur les contrats de vente internationale de marchandises et l'arbitrage (The United Nations Convention on Contracts for the International Sale of Goods and Arbitration), inBulletin de la Cour International d'Arbitrage de la CCI. (Bulletin of the International Arbitration Court of the ICC) Vol. 5/N 1, Mai 1994, p. 61-65, in particular p. 66: "Ce large accueil signifie au moins que les règles juridiques édictées par la Convention sont compatibles avec des traditions juridiques diversifiées, civilistes et anglo-saxonnes en tout cas, et qu'elles sont neutres économiquement".
174. After the new Civil Code was promulgated, and even before it came into effect, three bills sponsored by the Federal Representative Ricardo Fiuza were introduced in Congress in order to alter a number of provisions, in which art. 389 is not included. (Bills n. 6.960/2002, n. 7.160/2002 and n. 7.312/2002).