Page: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
Buyer's Right to Withhold Performance and Termination [Avoidance] of Contract under the UN Sales Convention
return the risk to the seller. The seller would face delay, and in order to avoid the undesirable consequences of delay, he would strengthen his efforts to perform. Since taking delivery and payment of the price generally are linked, the buyer would have the further advantages of paying later and not for non-conforming goods, for the seller who wants to obtain payment must take action against the buyer.
More importantly, the right will be significant where the seller fails to fulfil his obligations with respect to the place of delivery (Art. 31), or to specify the goods by notice (Art. 32(1)). The significance of the right is for the reason that the remedy prescribed under Art. 46(2), (3) does not apply here, since it only relates to the seller's obligation to deliver conforming goods under Art. 35 and probably Arts. 41 and 42. In such cases, if the buyer has such a right he can refuse to take delivery and subsequently require performance according to Art. 46(1), and fix an additional period of time in accordance with Art. 47(1).
The remedy will also be significant for the buyer where the seller partially or fully fails to perform his obligations relating to the quantity, quality and other description required by the contract (Art. 35) or fails to fulfil his duty under Arts. 41 and 42, that is where the goods delivered are not free of the rights or claims of third parties. In such cases, the right to refuse to take delivery would be useful for the buyer where he wishes to require the seller to repair the non-conformity under Art. 46(3). In such situations, the buyer can, if he is entitled, by turning the risk of the goods to the seller persuade him to cure the non-conformity as quickly as possible. Accordingly, in the case of the seller's failure to deliver goods in accordance with Arts. 35, 41 and 42, the buyer is not required to take delivery of them in order to have them cured later, but he can refuse to take delivery until cure is made.
Having considered the concept and importance of the remedy, the following discussion will try first to answer the question whether the Convention has recognised a general right to withhold performance and then to ascertain how the given right will work in different types of failure by the seller to perform his obligations.
1.2. Withholding Performance as a General Right?
A close examination of the Convention provisions clearly shows, it is suggested, that the Convention has recognised the right to withhold performance for an aggrieved buyer in some occasions. However, in some cases the Convention has expressly applied the rule and in others it has impliedly recognised it.
1.2.1. Prospective Non-Performance
The Convention has expressly applied the right to withhold performance in Art. 71(1) under the heading of the right to "suspend the performance of obligations." Under this provision, whenever it is apparent that a party, say the seller, will not be able to [next page]