memorandum for claimant - CISG Database

- 19 - SUPERB
regard to the interest of the other party. 103 Art. 48 (2) CISG is intended to give the seller a means to clarify
whether the buyer will reject repair or delivery of substitute goods on the ground of unreasonable delay and
declare the contract avoided on account of a fundamental breach of contract. 104 In the case at hand, SUPERB fixed
an additional period of time in accordance with Arts. 49 (1) (b) and 47 (1) CISG to perform the installation
obligation until 9 October 1996 within the letter dated 18 September 1996. 105 It is obvious, that an additional
period of time fixed by Respondent which is longer than the additional period fixed by SUPERB contradicts the
interest of SUPERB. Therefore, there was no need for giving Respondent a means to clarify whether SUPERB
would reject performance of the obligation to install, i.e. the intention of Art. 48 (2) is not given.
C. The Right to Avoid the Contract Was not Limited Pursuant to Art. 51 (1) CISG
Should Respondent argue that SUPERB’s right to avoid the contract was limited in regard to the obligation to
install pursuant to Art. 51 (1) CISG, this argumentation would be unfounded. According to Art. 51 (1) CISG the
buyer can exercise his legal rights given by the Convention, especially the right to avoid the contract, only in
respect of the part which is missing or which does not conform, if the seller delivers only a part of the goods or if
only a part of the goods delivered is in conformity with the contract.
To the contrary, SUPERB had the right to avoid the whole contract, because the missing installation amounts to a
fundamental breach of contract pursuant to Art. 51 (2) CISG. Pursuant to Art. 51 (2) CISG the buyer may declare
the contract avoided in its entirety if the failure to make delivery completely or in conformity with the contract
amounts to a fundamental breach of contract. Whether a breach of contract is fundamental depends on
Art. 25 CISG. Pursuant to Art. 25 CISG a breach of contract committed by the seller will be fundamental if it
results in such a detriment to the buyer as substantially to deprive him of what he is entitled to expect under the
contract. This Article refers to the buyer’s subjective interest in performance. 106 SUPERB expected to keep up with
the pace of the technical progress by entering into a contract with Respondent and to make significant cost
savings from the new system overtime. 107 The control system has no use for SUPERB before it is installed and
SUPERB’s expectations cannot be fulfilled.
103
Bin Cheng, General Principles in Law 134 (1953).
104
Ulrich Huber, in Schlechtriem/Commentary on the CISG, supra note 3, at 411.
105
Claimant’s Ex. No. 4.
106
Schlechtriem/UN-Kaufrecht, supra note 54, at 68.
107
Procedural Order No. 2, Factual Questions No. 23.