SCHEME OF CISG ARTICLES 63 AND 64(1)(B)

CISG Articles 63 and 64(1)(b) are part of the regime of remedies of breach of contract within the CISG, which in general can be divided into two categories: remedies where the contract can be terminated or avoided such as fundamental breach and remedies where the contract is still in force such as damages.

Articles 63 and 64(1)(b) are provisions that span both remedies through the principle of Nachfrist, which is the granting of additional time by the seller to the buyer to perform his obligation to pay the price or take delivery of the goods. The principle has been mainly borrowed from German domestic law as well as from the French procedure of mise en demeure. However there are significant differences between the German and French treatment of Nachfrist and the one in the CISG. This is a good point to remind ourselves of the mandate of Article 7(1) where uniformity of application demands the autonomous interpretation of the CISG; that is, without relying on principles founded in domestic law. In other words, German and French treatment of Nachfrist and mise en demeure must be ignored and cannot be used to explain the principle within the CISG despite significant similarities in doctrine and jurisprudence.

Common law attorneys may find the concept of Nachfrist foreign as it has no direct commonlaw counterpart. In brief, the various Sale of Goods Acts do not rely on the principle of “fundamental breach.”