Q 47-1
Based on the outline above, what is the essential difference between the Germanic approach and the approach under Article 47(1) CISG?
Under Article 47(1) CISG, the buyer may fix an additional period of time. It does not have a duty to do so as it is generally the case under German law. Thus, under the CISG, the buyer may claim a reduction of the purchase price under Article 50 CISG or damages under Article 74 CISG without having set a Nachfrist. Furthermore, under German law, the buyer may avoid the contract if the additional period of time has lapsed without the seller having fulfilled its obligations. This is not a necessary consequence under the CISG (see Q 47-2).
Q 47-2
Explain the interaction between Article 47 CISG and the right to avoid under Article 49(1)(b) CISG.
According to Article 49(1)(b) CISG, the buyer may avoid the contract if the seller has not delivered the goods within the additional period of time set by the buyer. Thus, even if the original non-delivery did not amount to a fundamental breach, it can be rendered fundamental through the lapse of the additional period of time.
Q 47-3
What are the consequences of the buyer failing to set an additional period under Article 47(1) CISG?
If time is not of the essence and thus non-delivery by the seller in itself does not amount to a fundamental breach, the buyer may not avoid the contract before having set an additional period of time.
Q 47-4
Is the buyer obliged to set a Nachfrist under Article 47 CISG in order to give the seller the opportunity to remedy the non-conformity of the goods?
Under Article 47 CISG the buyer has the right to set a Nachfrist but this does not constitute an obligation. If the buyer has given due notice of the non-conformity it is up to the seller to offer to remedy the defects. If the buyer remedies the defects itself it may claim the necessary costs as damages under Article 74 CISG provided remedying the defects itself did not violate the duty to mitigate damages under Article 77 CISG.
Q 47-5
What criteria should be used to determine whether the period of additional time was of a reasonable length?
What is a reasonable length has to be decided on a case-by-case basis. The following circumstances should be taken into account: the nature of the goods, the buyer’s interest in timely delivery, the mode of delivery, the availability of transport, and the time needed by the seller to procure substitute goods.
Q 47-6
What are the consequences for the buyer of failing to set a ‘reasonable’ additional period of time?
If the additional period fixed by the buyer is too short to be reasonable, in principle it is ineffective; however, the buyer is bound during the unreasonably short period according to Article 47(2), sentence 1 CISG. Although the buyer may not avoid the contract after the lapse of the unreasonably short period, it may do so if the breach had been fundamental from the beginning or at least after a reasonable time.
Q 47-7
Describe the circumstances in which a buyer could avoid sitting out the additional period before having recourse to remedies.
If the seller during the additional period of time commits a fundamental breach of contract that in and of itself gives rise to avoidance of the contract, eg delivery of fundamentally non-conforming goods or repudiation of the contract.
