Under Article 46(2) CISG, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract. This restriction is not found in § 439(1) BGB.

Avoidance of the contract, reduction of the price, and damages for a substitute transaction.

Under Article 28 CISG, a court is only required to enter a judgment for specific performance, if it would do so under its own law in the case at hand. This poses a restriction on the possibility of the buyer to claim specific performance under Article 46(1) CISG.

(a) Article 79 only applies to damages claims but, as its fifth paragraph shows, explicitly leaves other remedies untouched. Nevertheless, some scholars argue that the claim to specific performance needs to be excluded as well at least where the impediment amounts to an impossibility. However, applying Article 79 to specific performance confounds two separate issues. Even intentionally caused impossibility strips a claim to specific performance of any meaning whereas it would not amount to an impediment beyond control under Article 79 CISG.  In C 46-1, for example, respondent 1 would not be exempted from damages under Article 79 as it intentionally caused impossibility, while specific performance is excluded because respondent 1 validly transferred property in the car to respondent 2.

(b) Relying on the lex fori to defeat a claim for specific performance in cases of impossibility would be theoretically possible, but an autonomous approach based on the CISG itself seems preferable to preserve uniformity. 

Article 46(2) CISG requires i) the non-conformity which ii) amounts to a fundamental breach and that the buyer iii) requests the delivery of substitute goods at least within a reasonable time after giving notice of the non-conformity. It is no requirement for the delivery of substitute goods that the contract calls for generic goods. Instead, the buyer may also require substitute delivery in the case of a sale of specific goods where substitute goods exist that are economically equivalent to the goods sold.

Article 46(2) CISG envisages the situation where the goods are already in the buyer’s hands. In this case, substitute delivery would call for a reshipment of the goods to the seller and thus cause the seller to incur considerable additional costs.

A ‘reasonable time’ under Article 46(2) CISG is determined by taking into account the nature of the goods and of the defect, the market conditions (especially price fluctuations), and the respective positions of the parties.

The buyer’s interests in repair by the seller must be weighed against the seller’s expenses. Thus, a request for repair can be regarded as unreasonable where the costs for repair are unreasonably high compared to the costs for substitute delivery or compared to the decrease in the value of the goods caused by the non-conformity; where the seller as a retailer does not have the necessary skills for repair; or where the costs for repair by the seller itself are unreasonably high compared to the costs of a repair by the buyer or a third person.

No, the buyer may claim damages in the amount of the costs of the repair (see above C 46-1). It may be questionable whether the buyer may claim the costs for repair on an abstract level if it decides to refrain from actually remedying the defect. In any case, the costs of repair are indicative of the reduced value of the goods due to the non-conformity. Thus, they may be taken into account when calculating a reduction of the price under Article 50 CISG, or damages under Article 74 CISG.

No, they are not (see A 46-1, Rule 1). From a formalistic perspective, Article 28 CISG shares the wording only of Article 46(1) CISG (‘require performance’), not that of Article 46(2) (‘require delivery’) and (3) (‘require […] to remedy’). In addition, substitute delivery and repair are already subject to their own specific prerequisites, namely fundamental breach and reasonableness. Imposing additional requirements derived from the lex fori would undermine uniform application.

Drawing costs for retrofitting under substitute delivery or repair is an interpretation made by the CJEU in the joined cases C-65/09 and C-87/09 on the EU Consumer Sales Directive (now Sale of Goods Directive). The Sale of Goods Directive does not harmonize claims for damages for breach of contract. Some EU member states, like Germany, still require fault for damage claims. Retrofitting can cause immense costs when the goods had already been installed by the buyer before the non-conformity became apparent, without the seller being at fault. Since the CISG is based on the principle of strict liability, similar contortions are unnecessary (see A 46-1, Rule 7). Drawing costs of retrofitting under Articles 46(2) and (3) CISG is also undesirable as it can undercut the foreseeability limitation in Article 74 CISG, the duty to mitigate in Article 77 CISG, or contractually agreed caps on damages.

Yes, it is (see A 46-1, Rule 10). Just as after the original delivery, the seller needs to know swiftly that performance was not satisfactory.

Substitute delivery and repair should take place at the location where the goods are located in accordance with the contract so that the buyer does not have to arrange additional transportation following the breach of contract. If the seller knew or ought to have known the destination of the goods at the time of contract conclusion, that place applies. Otherwise, substitute delivery and repair should take place at the buyer’s place of business.