International Sales Law Written Assignment 3: Spring 2017 Analysis

This assignment solution addresses key concepts in international sales law under the CISG. Question 1 examines the 'reasonableness standard' of the Nachfrist period and its impact on contract avoidance due to non-delivery. Question 2 analyzes Article 51, focusing on partial delivery and non-conforming goods, and the buyer's rights, including contract avoidance and potential remedies under Article 66. Question 3 delves into anticipatory breach, as per Articles 71 and 72, where a party's inability to perform becomes apparent, and explores the right to suspend performance and declare the contract avoidable. It also considers damages under Article 74. The assignment provides detailed analysis of each question, referencing relevant CISG articles and legal principles, offering insights into contract law and international sales transactions.

Written Assignment # 3
International Sales – Spring 2017

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Table of Contents
Question 1...................................................................................................................................................2
Question 2...................................................................................................................................................2
Question 3...................................................................................................................................................3
References...................................................................................................................................................5

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Question 1
The reasonableness standard as given in the Nachfrist provides for flexibility in the international
sales as under the CISG law and states that in the case of non-delivery by the seller, the buyer
can avoid the contract on account of Nachfrist as under the provisions of Article 49:
 If the seller did not deliver the goods within the additional period of time that was fixed
by the buyer in accordance with the provisions as given in the article 47, or
 Where the seller declares that he will not be delivering the goods within the period so
fixed by the buyer.
However, if the seller delivers the goods, then the buyer loses all the right where he could
declare the contract avoided (Mai, 2016).
Thus it can be said that it is also worth noting that while determining whether the period that the
buyer fixes is 'reasonable' or not, the main point to be considered is the need of the buyer for
delivery of the goods without further delay. On the other hand, since the seller's failure to
comply with the period fixed by the buyer empowers the buyer to avoid the contract
Question 2
It has been provided under Article 51 that:
(1) If the seller has delivered only a part of the goods or if only some part of the goods which has
been delivered is in conformity with the contract, then in such a case, provisions as given in
articles 46 to 50 shall apply in respect of that part of goods which is found to be missing or
which does not conform with the contract (Flechtner, 2016).

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(2) The buyer may also declare the contract as avoided as completely only if the failure that has
been done in making the delivery completely or in conformity with the contract has amounted as
a fundamental breach of the contract.
In such cases, the relief that might be available with the buyer comes from the provisions as
given under Article 66, which provides that the buyer is to be discharged from its price
obligation in the case of “the loss or damage has been caused due to an act or omission which
has been done by the seller.”
Thus, it can be understood as something which is a possible right of setting-off for a tort which
the seller might have committed. But this would be considered as something odd as under the
Convention. This is mainly because both the tort and set-off are falling outside the purview of
the CISG (Mai, 2014).
But it has also been observed that by taking a dynamic view of the “passing” of risk, it appears to
be much more logical when it comes to deciding that the risk simply belonged to the seller. If the
seller offers to correct or offers to replace the lost or the damaged goods with any substitute
goods, then the obligation to pay the price would again be put back on the buyer. Thus, it can be
said that in the present case since it has been assumed that the allocation of risk was on the
Armando for the omission of goods, thus by the rights given under Article 51 and Article 66, the
Fantastic Furniture Co can declare the contract as avoided and will be discharged from his
obligation to pay the price of the goods.
Question 3
It has been provided under the provisions of Article 71 that:

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(1) A party is allowed to suspend the performance of his legal obligations under a contract if,
after the contract has been concluded, it becomes apparent to one party that the other
party will not be able to perform a substantial part of his obligations under the contract
which is due to the reason like (a) a serious deficiency in his ability to perform or serious
deficiency in his creditworthiness; or (b) his conduct in preparing to perform or in
performing the contract.
It has also been given under the provisions of Article 72 that:
(1) If before the date for actual performance of the contract it has been made clear that one of the
parties to the contract is going to commit a fundamental breach of contract, then in such a case
the other party has the right to declare the contract as avoided.
(2) If time allows, the party who is intending to declare the contract as avoided is required under
the law to provide for reasonable notice to the other party in order to give him permission to
provide adequate assurance of his performance (Wethmar, 2016).
(3) It is to be noted that the requirement as stated above is not to be applied if the other party has
already declared that he will not perform his obligations.
Also, it has been provided under Article 74 that the damages for breach of contract by one party
includes a sum which is equal to the loss, including loss of profit, suffered by the other party as a
consequence of the breach.
Thus it can be said in the present case that Armando had already declared that it would not be
able to perform his obligation through fax, and thus the Fantastic Furniture Co declare the
contract as avoidable as under the Article 72 and thus can only claim for Damages as given
under the Article 74

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References
Mai, N. K. (2014). Suspension of Performance due to Anticipatory Breach in Comparative Law
and CISG.
Mai, N. K. (2016). Legal Remedies for Non-conformity of Goods under CISG, UCC and UK
Law.
Flechtner, H. M. (2016, April). Avoidance of Contract. In International Sales Law (pp. 587-634).
Nomos Verlagsgesellschaft mbH & Co. KG.
Wethmar-Lemmer, M. (2016). Applying the CISG via the rules of private international law:
Articles 1 (1)(b) and 95 of the CISG-analysing CISG Advisory Council Opinion 15. De Jure,
49(1), 58-73