¹ Art 25.

² It also represents a clear departure from the definition of fundamental breach in the instrument preceding the CISG (the Uniform Law on International Sale 1964): see below.

³ The expression used in the Unidroit Principles of International Commercial Contracts is the more widely used ‘termination’. In some legal systems, and in the Unidroit Principles themselves, avoidance is used to signify the retrospective unwinding of a contract because the consent of one or both parties is vitiated by fraud, mistake, undue influence or other related matters.

⁴ Art 49.

⁵ See below.

⁶ But certain express clauses survive, including clauses that deal with dispute settlement and clauses (such as limitation and exclusion clauses) that define the scope of the primary obligations. See CISG Advisory Council, Opinion Number 9.

⁷ In English law, Lord Diplock in particular laid emphasis on damages liability arising under secondary, implied terms of the contract. See, for example, Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; Lep Air Services Ltd v Rolloswin Investments [1973] AC 331; RV Ward Ltd v Bignall [1967] 1 QB 532. Lord Hoffmann's proposal to define the scope of damages liability in contract by reference to implied agreement, even before the rule of remoteness of damages is applied, which on one reading of the case commands majority support, is a clear development from this line of thought: Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48, [2009] 1 AC 61. It also has interesting implications for the contra proferentem rule of construction given that it permits what amounts to an implied exclusion of liability.

⁸ Though the survival of some express provisions of the contract is a pointer in favour of the latter approach.

⁹ Even if the contracting parties have, further to art 6, modified the consequences of avoidance or the incidence of damages after avoidance, there is still no need to choose between retrospective and prospective avoidance.

¹⁰ See especially art 49(2), providing for avoidance within a reasonable time after the aggrieved party knew or ought to have known of the breach. The breach may lie concealed for an appreciable period. The lapse of time in itself does not preclude contractual avoidance (cf. section 35 of the Sale of Goods Act 1979).

¹¹ Huber, P, ‘CISG—The Structure of Remedies’ (2007) 71 Rabels Zeitschrift für ausländisches und internationales Privatrecht 13CrossRefGoogle Scholar, 33.

¹² cf English law, where the time allowed for avoidance (termination) is short, which makes no provision for the return of benefit and interest.

¹³ Art 84(2). The provision makes no mention of burden of proof of benefit, but, from its wording, one may fairly infer that the buyer has to make a statement of the benefits received or that no benefits have been received, as the case may be. The seller would then have to prove any benefits, with the evidentiary burden of proof playing a major part in the process. One of the most interesting questions raised by the CISG concerns the extent that it penetrates matters of procedure and proof. The greater the degree of penetration, the greater the prospects of uniformity of law in practice.

¹⁴ For example, in the case of profit-earning goods like a machine, how is profit to be calculated by reference to overhead, fixed and variable?

¹⁵ These various restitutionary matters are dealt with at length in CISG Advisory Council Opinion Number 9 (Effects of Avoidance).

¹⁶ UNIDROIT, Uniform Law on the International Sale of Goods (The Hague, 1964) available at http://www.jus.uio.no/lm/unidroit.ulis.convention.1964/portrait.pdf; see arts 25–26, 30.

¹⁷ Note how the CISG gives, not a right to avoid the contract, but a right to declare the contract avoided.

¹⁸ For the sake of convenience, I shall refer to avoidance in English law, instead of the correct expression, termination (or discharge). Termination is used in the CISG, where it signifies an agreed rescission of the contract: Art 29.

¹⁹ Rare exceptions are F Reynolds, ‘Discharge by Breach as a Remedy’ in P Finn, Essays on Contract Law (Law Book Co, Sydney, 1987); J Adams and R Brownsword, Key Issues in Contract Law (Butterworths, London, 1995) ch 6 (‘Breach and Withdrawal’); GH Treitel, Remedies for Breach of Contract (Clarendon, Oxford, 1988), ch IX (‘Termination of the Contract’).

²⁰ For example, one well-established text, A Burrows, Remedies for Torts and Breach of Contract (3^rd edn, OUP, Oxford, 2004), has nothing to say about termination.

²¹ It might be argued that such a buyer ought to mitigate its loss under art 77 by buying a new machine, but mitigation should not impose on the buyer an onerous capital expenditure with the prospects of a complex and difficult damages action under art 74 to recover the costs of the mitigation from the seller. But if the buyer does mitigate in this way, the practical difference between avoidance, with a residual damages claim against the seller, and non-avoidance, with a more substantial damages claim against the seller, may be inconsiderable.

²² There are many examples in English law, including Bowes v Shand (1877) 2 App Cas 455; Cargill UK Ltd v Continental UK Ltd [1989] 2 Lloyd's Rep 290; Richco International Ltd v Bunge & Co Ltd (The New Prosper) [1991] 2 Lloyd's Rep 93.

²³ See below.

²⁴ See Tribunal Supremo (Spain) 17 January 2008 (claiming its derivation from the common law). All judicial decisions concerning the CISG, referred to in this article, are readily available in English online at http://www.cisg.law.pace.edu. The cases are organised according to country and then according to the particular court in the country concerned. Consequently, I have not given a direct link (eg, http://cisgw3.law.pace.edu/cases/080117s4.html – the decision of the Tribunal Supremo referred to above) to the case in question.

²⁵ See eg, Karsales (Harrow) Ltd v Wallis [1956] 1 WLR 936.

²⁶ The Unfair Contract Terms Act 1977.

²⁷ Photo Production Ltd v Securicor Transport Ltd [1980] AC 827.

²⁸ See M Bridge, Sale of Goods (Butterworths, Canada, 1988) 295–296.

²⁹ In perhaps the leading modern English judgment on termination for breach, by Diplock LJ in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha [1962] 2 QB 26, no mention is made of fundamental breach.

³⁰ M Will in C Bianca and M Bonell, Commentary on the International Sales Law[:] The 1980 Vienna Sales Convention (Giuffrè, Milan, 1987), 206, attributes fundamental breach to a Danish expert in preparatory work for ULIS carried out in 1951.

³¹ See ibid; (‘nothing to do with the English doctrine of <<fundamental breach>>’) 209.

³² Many contractual terms dealing with matters such as documents and time are, by dint of long-standing authority and commercial recognition, treated as promissory conditions, so that, upon any breach and regardless of the consequences of breach, there is a right to terminate the contract: see Maredelanto Cia Naviera SA v Bergbau-Handels GmbH (The Mihalis Angelos) [1971] 1 QB 64.

³³ ‘In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.’ The CISG uses a number of novel or infrequently used expressions, such as ‘hand over’, ‘exemption’ and ‘prejudice’ in order to avoid domestic taint.

³⁴ Anticipatory, not present, refusals to perform are dealt with in art 72.

³⁵ See Will (n 30) See also the 12^th Meeting of the First Committee(A/CONF.97/C.1/SR.12), paras 3–12, 21, 32, 34, 50 (J Honnold, Documentary History of the Uniform Law for International Sales (Kluwer, Netherlands, 1989) 516–518).

³⁶ Discussed below.

³⁷ ‘<<Detriment>>, in this context, appears to be a newcomer in the field. The term will not be spotted frequently in international legal documents’: see Will (n 30) 210.

³⁸ Clearly not within the exclusion in art 5.

³⁹ To equate detriment with damages is wrong. The measure of recoverable damages may be affected by whether avoidance takes place but damages are a financial substitute for loss (or detriment) and are not loss itself: see Ferrari, F, ‘Fundamental Breach under the UN Sales Convention—25 Years of Art 25 CISG’ (2006) 25 Journal of Law and Commerce 489Google Scholar, 494, and the sources therein quoted in (n 44).

⁴⁰ OLG Linz (Austria) 23 January 2006.

⁴¹ ibid.

⁴² For example, an obligation not to reimport the goods into the country of export.

⁴³ See P Huber and A Mullis, The CISG (Sellier, Munich, 2007) 214 (referring to the ‘legitimate interests of the promisee’).

⁴⁴ See http://snowmobile.eu/ford_model_t_en.html.

⁴⁵ Damages would fall to be assessed, not under art 35(2) (fitness for purpose), but under art 35(1) (delivery of goods packaged in the manner required by the contract).

⁴⁶ See art 73.

⁴⁷ By means of a price reduction under art 50.

⁴⁸ It is difficult to see any justification for a price reduction action under art 50.

⁴⁹ In English law, termination and discharge amount to the same, the idea of discharge for breach being that one party, because of the other's serious breach of contract, is entitled to discharge, that is, release, itself from the contract.

⁵⁰ Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha [1962] 2 QB 26, 69.

⁵¹ Whether because of a statute (such as the Sale of Goods Act 1979), or because of an express provision to that effect in the contract, or because of established mercantile practice recognised in the case law: see Maredelanto Cia Naviera SA v Bergbau-Handels GmbH (The Mihalis Angelos) [1971] 1 QB 64.

⁵² But see Will (n 30) 212: ‘Defining fundamental by substantial … leaves an impression of playful tautology …’. Why tautology, since they mean such different things?

⁵³ Also in the suspension provision, art 71, though not in the anticipatory repudiation provision, art 72.

⁵⁴ See below.

⁵⁵ The service of a time notice under arts 47 and 63 is not related to art 25 in the same way as breach of condition and fundamental breach in English law relate to each other.

⁵⁶ OLG Düsseldorf (Germany) 23 January 2004 (which would go so far as to test the use of goods to the end buyer); OLG Frankfurt (Germany) 18 January 1994. See also OLG Köln (Germany) 14 October 2002; OLG Stuttgart (Germany) 12 March 2001 (‘decisive’). It has even been said that the goods have to be ‘practically useless’: OLG Hamburg (Germany) 25 January 2008. The so-called ‘reasonable use’ approach is not certain to gain universal acceptance in the case law: Huber (n 11) 13, 26.

⁵⁷ The process of mutual restitution called for by Art. 81 does not necessarily entail transporting the goods back to the seller: see CISG Advisory Council Opinion No 9 (Effects of Avoidance).

⁵⁸ See, eg, P Schlechtriem and I Schwenzer, Commentary on the UN Convention on the International Sale of Goods (CISG) (3^rd (English) edn, OUP, Oxford, 2010) (Schroeter) 427.

⁵⁹ Tribunal Cantonal Valais (Switzerland) 27 April 2007; Tribunale di Padova (Italy) 11 January 2005; LG München (Germany) 27 February 2002; OLG Köln (Germany) 14 October 2002; OLG Brandenburg (Germany) 18 November 2008. It should be noted that a proposed amendment to the draft Art. 25 (then Art. 23), proposed by the UK, that avoidance should not be allowed where damages would be an adequate remedy, was rejected at the 1980 Diplomatic Conference: see the 13^th Meeting of the First Committee (A/CONF.97/C.1/SR.13), paras 1–11 (Honnold (n 35) 523–524).

⁶⁰ Bundesgericht (Switzerland) 15 September 2000.

⁶¹ Tribunal Cantonal du Jura (Switzerland) 26 July 2007; Tribunal Cantonal Valais (Switzerland) 27 April 2007; OLG Köln (Switzerland) 14 October 2002.

⁶² It has not been suggested that cases can be assigned scores for fundamentalism in the way that Robert Parker classifies wines on a 100-point scale.

⁶³ See eg, Schroeter (n 58) 427–430.

⁶⁴ District Court Zug (Switzerland) 30 August 2007.

⁶⁵ See Appellationsgericht Basel-Stadt (Switzerland) 22 August 2003.

⁶⁶ Gerechtshof's Gravenhage (Netherlands) 23 April 2003.

⁶⁷ Handelsgericht Aargau (Switzerland) 5 November 2002.

⁶⁸ See discussion below. ULIS contained a special rule for allowing avoidance in the case of untimely delivery by the seller of goods with a quoted market price: art 28.

⁶⁹ Schroeter (n 58) 411–412 (criticising this view and asserting the role of foreseeability in assessing the importance of the breached obligation). cf the second edition of this work (2005) 287–288 (Schlechtriem).

⁷⁰ See below.

⁷¹ For example, a buyer who has avoided a contract may suffer market loss if the seller is neither bound nor able to make future deliveries on a rising market.

⁷² For example, where the goods are so seriously non-conforming that the buyer decides not to retain them but to avoid the contract for fundamental breach, and seek alternative goods, available only at a higher price.

⁷³ Consequential damages has the meaning here of losses that flow from the breach of contract but not immediately so, in contrast with the attenuated meaning given to the expression (second limb Hadley v Baxendale damages) by the Court of Appeal in recent years: see Croudace Construction Ltd v Cawoods Concrete Products Ltd [1978] 2 Lloyd's Rep 55; British Sugar plc v NEI Power Projects Ltd (1998) 87 BLR 42.

⁷⁴ J Honnold and HM Flechtner, Uniform Law for International Sales (4th edn, Kluwer, Netherlands, 2009) 277.

⁷⁵ Although the test of fundamental non-performance in the Unidroit Principle of Commercial Contracts could meet this difficulty by taking account of the intentional or reckless character of the non-performance, this criterion is not available for consideration under art 25 of the CISG.

⁷⁶ Which it expressly is in the Unidroit Principles of International Commercial Contracts (art 7.3.1(2)(c) (intention and recklessness)).

⁷⁷ Departing from a civilian tradition, art 74 does not require fault for there to be liability in damages. Recognising this change, the German Bundesgerichtshof (24 March 1999) declined to let the absence of fault in by the back door as a factor in exempting the non-performing party under art 79.

⁷⁸ This is the position taken under art 10 of ULIS, as well as under art 3:502(2)(a) of the Draft Common Frame of Reference. Allowing a role for foresight established at a later date has been cogently criticised for allowing a unilateral modification of the parties’ interests under the contract: Ferrari, (m 39) 488, 499.

⁷⁹ See the 12^th Meeting of the First Committee(A/CONF.97/C.1/SR.12) and 13^th Meeting of the First Committee (A/CONF.97/C.1/SR.13) (Honnold (n 35) 516–522). The issue was left to the courts to decide: Secretariat Commentary on Art. 23 of the 1978 Draft Convention, para 4.

⁸⁰ ‘The Commission, after deliberation, did not consider it necessary to specify at what moment the party in breach should have foreseen or had reason to foresee the consequences of the breach’: Report of the Committee of the Whole on the 1977 Draft, Doc. B(1), Viii Yearbook 25–64, A/32/17, Annex 1, para 90.

⁸¹ See Flechtner, H, ‘Remedies under the New International Sales Convention: The Perspective from Article 2 of the UCC’ (1988) 8 Journal of Law and Commerce 53Google Scholar.

⁸² Nevertheless, supporting the date of the contract is OLG Düsseldorf (Germany) 24 April 1997 (if the buyer would prefer not to receive delivery at all than to receive delayed delivery, this should be apparent to the seller at the date of conclusion of the contract).

⁸³ cf art 77.

⁸⁴ There may be scope for a buyer to demand adequate assurance of performance under the suspension provision, art 71, if ‘prior to the date for performance’ can be taken to cover, as it should, the proposed new date of performance.

⁸⁵ The distinction is between goods that are inferior (peius) and goods that are not those provided for by the contract (aliud), so that the latter case is one of non-delivery. For the view that art 46(2) draws no distinction between peius and aliud, see Schlechtriem and Schwenzer (n 58) 711.

⁸⁶ It has been authoritatively stated, however, that the CISG does not treat the delivery of aliud as a case of non-delivery, so that the rules on notice of defect in art 39 continue to apply: Bundesgerichtshof (Germany) 3 March 1996; Oberster Gerichtshof (Austria) 21 March 2000.

⁸⁷ Art 7.1.4(2).

⁸⁸ Oddly, it is the seller who is given a right to cure and not the buyer. It may be that a buyer has given defective delivery instructions or has opened a non-conforming letter of credit, for example. If a right for the buyer to cure can be fashioned with the aid of art 7(2), it should come with the same qualification that it is subject to avoidance.

⁸⁹ See eg, Schroeter, Schlechtriem and Schwenzer (n 58) 739.

⁹⁰ It has been criticised on the ground that, if cure is not eventually provided, it is not certain whether a fundamental breach is retrospectively created: A Mullis, ‘Avoidance for Breach under the Vienna Convention: A Critical Analysis of Some of the Early Cases’ in M Andenas and N Jareborg, Anglo-Swedish Studies in Law (Lustus Forlag, 1998) 343.

⁹¹ OLG Koblenz (Germany) 31 January 1997:

⁹² ‘In some cases the failure of the goods to operate or to operate in accordance with the contract specifications would constitute a fundamental breach only if that failure was not remedied within an appropriate period of time. Until the passage of that period of time, the buyer could not preclude the seller from remedying the non-conformity by declaring the contract avoided’: Art 44 of the 1978 Draft, para 5. The words ‘In some cases’ might fairly be taken to signify a lack of complete commitment to this point of view. Taking into account the prospects of cure in determining fundamental breach was ‘long disputed’ according to Schlechtriem, P, ‘Subsequent Performance and Delivery Deadlines—Avoidance of CISG Sales Contracts Due to Non-Conformity of the Goods’ (2006) 18 Pace International Law Review 83Google Scholar, 87.

⁹³ Arts 37 and 48. The provision on documentary cure, art 34, refers to curing defects in the documents, not remedying them.

⁹⁴ Arts 37 and 48.

⁹⁵ The Secretariat Commentary on draft art 48 (formerly art 44) states at para 4: ‘Once the seller has remedied his failure to perform or has remedied it to the extent that it no longer constitutes a fundamental breach, the buyer may no longer declare the contract avoided.

⁹⁶ See UCC 2-508 and 2-601.

⁹⁷ UCC 2-508(1) and Official Comment 1.

⁹⁸ Art 47 and 62.

⁹⁹ OLG München (Germany) 1 July 2002. cf Federal District Court Michigan (United States) 17 December 2001 (Shuttle Packaging Systems v Tsonakis) (non-payment of the purchase price under Art. 64 the most significant form of a fundamental breach).

¹⁰⁰ Art 49(1)(b). The relevant provision where notice is served on the buyer is Art. 64(1) (failure to take delivery or pay the price).

¹⁰¹ Schlechtriem and Schwenzer (n 58) 294. The current edition (2010, Schroeter, 426) notes simply that the service of a time notice in such cases should not be possible. See also Schlechtriem, P, ‘Subsequent Performance and Delivery Deadlines—Avoidance of CISG Sales Contracts Due to Non-Conformity of the Goods’ (2006) 18 Pace International Law Review 83Google Scholar.

¹⁰² ULIS art 44(2).

¹⁰³ Art 26(1).

¹⁰⁴ See the discussion of commodities cases below.

¹⁰⁵ ICC Arbitration No 8786 of January 1997 (seasonal products); LG München (Germany) 6 April 2000; Supreme Court Queensland (Australia) 12 October 2001 (Downs Investment Pty Ltd v Perwaja Steel Sdn Bhd); OLG Düsseldorf (Germany) 21 April 2004; Ukraine Arbitration 5 July 2005 (failure to present transport documents in time (delay of twelve days) made it impossible to conduct import clearance in Odessa).

¹⁰⁶ OLG Hamm (Germany) 12 November 2001.

¹⁰⁷ See eg ICC Arbitration No 8128 of 1995; OLG Düsseldorf (Germany) 22 July 2004. And there are a number of cases where a short delay has been held not to be a fundamental breach: see, eg, LG Oldenberg (Germany) 27 March 1996. Similarly, if performance is still objectively possible, courts may be reluctant to find a fundamental breach: OLG Düsseldorf (Germany) 18 November 1993.

¹⁰⁸ Tribunale di Padova (Italy) 31 March 2004; Tribunale di Padova (Italy) 25 February 2004.

¹⁰⁹ ICC Arbitration No 9978 of March 1999.

¹¹⁰ A trader in the forward delivery market may hedge against the risk of adverse market movement by taking an opposite position in the futures market: for example, Gebruder Metelmann GmbH & Co KG v NBR (London) Ltd [1984] 1 Lloyd's Rep 614.

¹¹¹ See, for example, Compagnie Commerciale Sucres et Denrées v C Czarnikow Ltd (The Naxos) [1990] 1 WLR 1337.

¹¹² Art 58(1).

¹¹³ See, for example, Berger & Co v Gill and Duffus SA [1982] AC 382, 391.

¹¹⁴ See, for example, Hansson v Hamel and Horley Ltd [1922] 2 AC 36; SIAT Di Del Ferro v Tradax Overseas SA [1980] 1 Lloyd's Rep 53.

¹¹⁵ See CISG Advisory Council Opinion Number 5.

¹¹⁶ 3 April 1996. See to similar effect OLG Hamburg (Germany) 28 February 1997 (time of delivery by definition an essential term in a CIF contract); and OLG Düsseldorf (Germany) 24 April 1997: ‘The particular importance of the date of delivery can result from the contract itself, as well as from the circumstances … ’ (emphasis added). It is interesting to note that this accords with the position stated by the Federal Republic of Germany when proposing an amendment to draft art. 25 that in the event was not carried: see the 12^th Meeting of the First Committee (A/CONF.97/C.1/SR.12), para 68 (Honnold (n 35) 521). For this same approach, see further Schroeter (n 58) 409.

¹¹⁷ P Schlechtriem, ‘Uniform Sales Law in the Decisions of the Bundesgerichtshof’ (available at www.cisg.law.pace.edu); Schwenzer, I, ‘The Danger of Domestic Pre-Conceived Views with Respect to the Uniform Interpretation of the CISG: The Question of Avoidance in the Case of Non-Conforming Goods and Documents’ (2005) 36 Victoria University of Wellington Law Review 795Google Scholar, 800; Huber and Mullis (n 43) 214.

¹¹⁸ CM Bianca and MJ Bonell, Commentary on the International Sales Law (Fred B Rothman & Co, Open Library, 1987) 206 (Will).

¹¹⁹ According to Will (ibid): ‘The system resembled that of traditional English common law distinguishing between warranty and condition, for the contract was to be cancelled only in cases where an essential condition on the part of the seller was at stake.’

¹²⁰ Will gives the example of the buyer.

¹²¹ Oddly, perhaps, this element, not present in art 25 of the CISG, has been held to be necessary if a breach is to be regarded as fundamental under art 25: Oberster Gerichtshof (Austria) 11 March 1999. The element lies at the heart of the definition of fundamental breach in art 10 of ULIS.

¹²² Comment 7 on art 45 of the 1978 Draft.

¹²³ Furthermore, while the perceived importance of timely performance of the trade may overcome any difficulties posed by foreseeability, this does not mean that a substantial deprivation of benefit occurs once performance is late.

¹²⁴ See eg, Bunge Corp v Tradax Export SA [1981] 1 WLR 711.

¹²⁵ See eg, Maredelanto Cia Naviera SA v Bergbau-Handels GmbH (The Mihalis Angelos) [1971] 1 QB 64.

¹²⁶ A contract for the sale of naphtha in a volatile market could not be avoided for late delivery since the buyer intended to use the naphtha for blending and had a large supply already in hand: US Federal District Court (New Jersey) 15 June 2005 (Valero Marketing & Supply Co v Greeni Oy).

¹²⁷ Since the existence of a fundamental breach is determined by the circumstances of the case, it falls to the court of first instance to determine whether a fundamental breach has been committed: OLG Brandenburg of 18 November 2008.

¹²⁸ ‘The expectation is that of the injured party under that particular contract’: A Mullis, ‘Termination for Breach of Contract in C.I.F. Contracts under the Vienna Convention: Is There a Substantial Difference?’ in E Lomnicka and C Morse, Contemporary Issues in Commercial Law (Sweet and Maxwell, 1997). For this reason, I cannot agree with those who argue that any breach of a term can be fundamental under art 25 (as opposed to by way of exception from art 25, with the aid of art 6), where it appears from the commercial background (eg, commodity sales) that time and quality are of the essence: cf Huber (n 11) 13, 31.

¹²⁹ cf B Zeller, ‘Commodity Sales and the CISG’ in CB Andersen and UG Schroeter (eds), Sharing International Commercial Law across National Boundaries: Festschrift for Albert H Kritzer on the Occasion of his Eightieth Birthday (Wildy, Simmonds & Hill Publishing, 2008) 627–639.

¹³⁰ 15 September 2000.

¹³¹ Art 3.

¹³² ‘The second sentence of ULIS, article 3, providing that ‘such exclusion may be express or implied’ has been eliminated lest the reference to ‘implied’ exclusion might encourage courts to conclude, on insufficient grounds, that the Convention had been wholly excluded: Secretariat Commentary on art 5 of the 1978 Draft Convention, para 2.

¹³³ See art 7.3.1(2)(a), (b).

¹³⁴ There is scope for much confusion here because the so-called ‘perfect tender rule’ in art 2 of the American Uniform Commercial Code (art 2-601) is not so much a perfect tender rule as a perfect performance rule which can apply at the point of delivery, but can also be applied after the buyer has accepted the goods, which may occur at a later date (see art 2-606 and 2-607(2)). The argument advanced in this section is confined solely to whether the buyer must accept delivery.

¹³⁵ Art 30.

¹³⁶ Note however that this provision deals only with early documentary delivery.

¹³⁷ For example, a bill of lading. An original bill of lading containing non-conforming data such as the place of discharge or the date of issue, cannot be rectified or replaced so as to accord with the rule that the bill be a ‘clean’ document issued at the time of shipment: see SIAT Di Del Ferro v Tradax Overseas Ltd [1980] 1 Lloyd's Rep 53.

¹³⁸ For reliance upon art 71 for the view that a buyer may refuse delivery of defective goods at least for a reasonable time so as to assess the situation, see CISG Advisory Council Opinion No 5, The buyer's right to avoid the contract in case of non-conforming goods or documents, paras 4.18 ff. (Schwenzer).

¹³⁹ 8 November 2005.

¹⁴⁰ Mullis (n 90) 354.

¹⁴¹ It is greatly inferior to the test in art 7.3.1 of the Unidroit Principles of International Commercial Contracts.

¹⁴² A brief practical guide about some of the pitfalls in the CISG, and about some of the choices that contracting parties might want to make, would have much to commend it.