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Buyer's Right to Withhold Performance and Termination [Avoidance] of Contract under the UN Sales Convention
buyer to treat the missing and the non-conforming part (as the case may be) as the subject of separate contracts for the purpose of remedy and to resort to his remedies under Arts. 46-50. But those provisions do not include such an option. Can the buyer treat the missing or non-conforming part as the subject of a separate contract for the purpose of the right to refuse to perform for the proportion of the missing or the non-conforming part? Since he is entitled to terminate the contract with respect to the missing or the non-conforming part if the requirements of fundamental breach or Nachfrist notice procedure are satisfied, it can be said, by analogy, that he is entitled to refuse to perform the contract to the proportion of the missing part. The view can also be supported by Art. 58(1) which provides that the buyer is not bound to pay only when the seller places the goods at the buyer's disposal in accordance with the contract. By analogy, the same rule is applicable where only part of the goods is in conformity with the contract. The same rule would be applicable to an instalment where the seller has delivered a defective instalment, since Arts. 51 and 73 are in fact concerned with a similar case, i.e., where the contract is severable.
1.3.2. Tender of Non-Conforming Documents
Although the Convention has referred to the seller's duty to deliver goods and documents in accordance with the contract terms (Arts. 30 and 34), it does not deal properly with the issue. It is therefore not quite clear whether the buyer has two separate rights to refuse to accept non-conforming documents and goods, and if so, what relation there is between these two rights. It appears that the issue must be examined according to the same principles as elaborated for goods.
According to the principles explained above, it seems that where the seller fails to tender the shipping documents, the buyer is entitled to refuse to pay the price, since where the contract does not specify otherwise, the buyer is under the duty to pay the price only "when the seller places the ... documents controlling their disposition at the buyer's disposal" (Art. 58(1). In other words, the seller's duty to hand over the documents controlling the disposition of the goods at the buyer's disposal and the buyer's duty to pay the price are to be fulfilled at the same time. However, it seems that the rule prescribed under Art. 58(1) would not be applicable to all shipping documents, since the Convention qualifies the non-defaulting buyer's right to withhold performance of his obligation to pay the price with the qualification that the documents should be those "controlling their disposition." Accordingly, the seller's failure to tender documents which lack this qualification is to be placed within the category of defective delivery rather than non-delivery.
Where the seller tenders documents which do not correspond with the contract requirements, the buyer is not required to take delivery [next page]