[107] Alternatively, other scholars propose an interpretation of Article 46(2) CISG alongside Article 79 CISG, arguing that this provision gives the buyer the right to insist on performance as long as there is an economically viable replacement and the replacement does not differ significantly from the original obligation to provide an atamer, replacement of goods in breach of the contract « free of charge »: Is it necessary to distinguish between B2B and B2C purchase contracts? (No. 97), 22. 3.17 If the buyer does not comply with the deadline for delivery or rectification of the replacement goods, it is limited to the legal remedies otherwise available, i.e. a claim for damages, price reduction and dispute due to a fundamental breach. [71] [2] The concept of non-compliance within the meaning of Article 35 CISG is much broader than in most national legal systems. It does not only refer to quality defects (peius), but also includes quantity defects, delivery of goods of a different type (description, aliud) as well as packaging defects. Documents in breach of contract (accompanying documents or documentary sales) also fall under Art. 35 CISG, Expert Opinion CISG-AC No. 5, Buyer`s right to withdraw from contract in case of goods or documents in breach of contract, 7 May 2005, Badenweiler, Germany. Rapporteur: Professor Dr.

Ingeborg Schwenzer, LL.M., Professor (em.) of Private Law, in Schwenzer (ed.) The CISG Advisory Council Opinions (The Hague 2017), 101, 110-111 para. 4.7 et seq., also available at www.cisgac.com/cisgac-opinion-no5/. 1. Subject to Article 49, the Seller may, even after the date of delivery, remedy the non-performance of its obligations at its own expense if it is able to do so without undue delay and without unreasonable inconvenience or uncertainty as to the reimbursement by the Seller of the costs advanced by the Buyer. However, the Buyer reserves the right to assert claims for damages in accordance with this Agreement. [74] Huber, in Kröll/Mistelis/Perales Viscasillas (no. 5), art. 46, para. 33 ; UNCITRAL, Reports (no.

9), art. 46 para. 3, « The contestation of the contract should only be possible as a last resort ». Although this reasoning may not be mandatory in the case of an EXW contract, i.e. if no carriage of the goods has taken place, a substantial infringement is also necessary in these cases, CISG Opinion No. 5 (No. 2), paragraph 4.6. 3.54 It is generally assumed that the place of repair is the buyer`s place of business or the location of the goods.

[179] However, the place of delivery of the replacement goods is disputed. Some scientists argue that the place of delivery of the replacement goods should be the same as the place specified in the contract. [180] Thus, if the parties agree to EXW, i.e. delivery to the seller, this also determines the place of replacement. [181] However, this approach imposes precautions and risks on the buyer – and at least mainly costs. It is therefore preferable to define the place of performance of the replacement delivery or repair than the place where the goods are located in accordance with the contract. [182] This saves additional costs when disposing of goods on the local market[183] and even makes it more sustainable. However, the place where the goods are currently located can only be decisive if the seller knew the intended location of the goods at the time of the conclusion of the contract or could not be unconscious. If this is not the case, it should be the buyer`s establishment. [89] In exceptional circumstances, Article 46(2) CISG may apply to identified subject matter. This is the case, for example, in the case of a complete delivery, i.e. the wrong item, Magnus, was delivered in the Staudinger BGB (No.

32), art. 46 para. 34, and if the parties have concluded a new contract, Huber, at Kröll/Mistelis/Perales Viscasillas (no. 5), art. 46 para. 37. 3.45 Accordingly, the Seller is obliged to take back the goods in accordance with Rule No. 8 lita b.

The refund cancels the initial sale, at least for the non-conforming parts of the goods. [154] If the seller does not take back the goods, the buyer may be obliged to sell or retain the goods in accordance with Articles 86 to 88 of the SCC. [155] If the seller is therefore unreasonably delayed in taking back the goods, the buyer may sell them by any appropriate means in accordance with Article 88(1) CISG. In case of disposal, the costs of disposal are borne by the party in distress, i.e.dem seller, in accordance with the general principles. [156] 3.27 Although Article 46(3) CISG refers to the reasonableness of balancing the interests of both parties, Article 46(2) CISG does not exist such a requirement. The legislative history of Article 46(2) CISG does not deal with disproportionality. The authors discussed whether the replacement threshold should be lowered by replacing fundamentality with the mere relevance of replacement. [104] However, they did not consider whether, in addition to the requirement of a fundamental offence, a general disproportionality could impede the claim under Article 46(2) CISG. Such an approach appears to be useful and consistent with the main objective of the Convention set out in article 46, paragraph 2, CISG, which is to save the seller`s transport costs if they outweigh the buyer`s interest in receiving goods in conformity with the contract. [105] More generally, this objective requires defining and balancing the interests of both parties. [106] 3.44 Rule No. 8 litaa requires a refund from the seller.

Although article 46 CISG does not expressly require return, it is based on the assumption of restitution. [150] The application of article 82 CISG in the case of article 46, paragraph 2, CISG is clearly set out in the wording of article 82 CISG and has already been endorsed in the Secretariat`s commentary. [151] The same applies if the goods are repaired by providing spare parts. In both cases, the refund is usually in the interest of the parties. The buyer may not be interested in keeping the goods as there may be additional costs for storage or destruction and the seller may be able to use the returned goods instead. [152] If it is not possible for the buyer to return the goods substantially in the condition in which it received them, the buyer loses the right to require the seller to deliver replacement goods in accordance with article 82 CISG. [153] 3.37 In the event of repair or replacement of contract elements, additional costs are incurred as a result of the modernization. The removal of the goods incorporated in breach of the contract and the reinstallation of the goods in accordance with the contract entail additional costs. [139] Modernization and installation refers to all types of measures in which assets are used in such a way as to be ready for use. The definition of modernisation and installation in this opinion is broad.

3.26 Although the title of section V, including article 82 CISG, is « Contestant effects », this provision also applies to the supply of equivalent goods. The clear wording of article 82 CISG requires its application and, in some cases, justifies the exclusion of article 46(2) CISG. According to article 82(1) CISG, `the buyer loses the right … require the seller to deliver replacement goods if it is impossible for the seller to return the goods substantially in the condition in which he received them. [99] Article 82 CISG is based on the idea that return is the « natural consequence »[100] of the delivery of replacement goods. The wording does not require the return of the goods in exactly the same condition. [101] Only if the change in the condition of the goods is of such importance would it no longer be appropriate to require the seller to take back the goods as the equivalent of what it delivered to the buyer, that the buyer is not complying with its obligation. [102] If the goods spoil between the buyer`s request for replacement and the delivery of replacement goods, the buyer`s claim for replacement goods is not excluded, but the buyer may be held liable for damages. [103] After acceptance, the Code strikes a different balance: the Buyer may revoke the acceptance only if the non-conformity significantly affects the value of the goods to him. N.J.S.A. 12A:2-608 See Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9 (1975).

See in general Priest, « Violation and Remedy for the Tendering of Non-Compliant Goods under the Uniform Commercial Code: An Economic Approach », 91 Harv.L.Rev. 960, 971-973 (1978). This provision protects the seller against revocation due to insignificant defects. Herbstman, loc. cit., 68 N.J., p. 9. It also prevents the buyer from unjustifiably exploiting the seller by having the goods belittled and then returned for minor defects claimed. See White & Summers, Uniform Commercial Code, § 8-3 to 391 (2 ed.