LAWS6059 Chap.5 CISG Remedies, Breach and Avoidance
CISG Remedies, Breach and Avoidance
CISG remedies respond to different commercial objectives. This chapter separates performance, cure, price reduction, damages, suspension and avoidance, and treats Article 25 fundamental breach as a demanding threshold based on substantial deprivation and foreseeability. It also explains why notice, additional time and compatibility matter.
The final advice should identify the strongest available remedy, preserve an alternative and state the immediate communication or evidence required.
What this chapter covers
- 01
Buyer and seller remedy pathways
- 02
Article 25 fundamental breach
- 03
Specific performance and compatibility
- 04
Articles 37 and 48 cure
- 05
Price reduction and damages
- 06
Suspension, assurance and avoidance
- 07
Instalment contracts
Worked example · free
Choose between cure and avoidance
- 1Confirm preserved rights and classify the non-conformity.
- 1Assess whether prompt cure avoids unreasonable inconvenience.
- 1Test substantial deprivation and foreseeability under Article 25.
- 1Separate suspension from the stronger avoidance threshold.
- 1Preserve foreseeable damages and address mitigation.
Key terms
- Fundamental breach
- A breach causing substantial deprivation of the contractual expectation, subject to foreseeability.
- Cure
- The seller's opportunity to remedy non-performance under the Convention's stated conditions.
- Suspension
- A temporary response where the other party appears unlikely to perform a substantial part.
- Avoidance
- Termination of future contractual obligations through the Convention's specified procedure.
CISG Remedies, Breach and Avoidance FAQ
When is a breach fundamental?
Article 25 asks whether the breach substantially deprives the innocent party of what it was entitled to expect, subject to foreseeability. Explain the contractual expectation, practical detriment and whether cure or another remedy still delivers the bargain.
Can cure and damages coexist?
Yes. Effective cure can preserve the contract, while the buyer may still have loss from storage, idle labour, delayed production or a resale problem. Damages require causation, foreseeability and mitigation, so identify the evidence for each claimed loss.
How is suspension different from avoidance?
Suspension pauses performance when a substantial failure appears likely and can invite adequate assurance. Avoidance permanently releases future obligations and generally requires fundamental breach plus a declaration. The thresholds, procedures and commercial consequences are different.
Assessment move
Draw a remedy wheel with the client’s commercial objective at the centre: obtain performance, keep usable goods at a lower price, recover loss or exit the bargain. Around it place performance, repair or substitute goods, cure, additional time, price reduction, damages, suspension and avoidance. Begin each problem by identifying the breach and the preserved rights from the conformity-and-notice analysis.
Then test whether the desired remedy has its own threshold rather than listing every remedy. For avoidance, write the Article 25 elements as a factual prediction: what contractual benefit was substantially lost and whether that result was foreseeable. Distinguish a serious breach from fundamental breach and explain why the client’s objective cannot adequately be met by cure, performance, reduction or damages.
When Nachfrist appears, specify the reasonable additional period, what performance was demanded and what happened during it. For anticipatory concerns, separate adequate assurance and suspension from final avoidance, and identify the communication required. Build a damages table with loss item, causal link, foreseeability at conclusion, evidence and mitigation step.
Include loss of profit only after stating how the amount is supported. Practise an Article 75 cover transaction and an Article 76 current-price calculation as distinct routes, checking time, reasonableness and market evidence. Treat price reduction separately from damages because its function and calculation differ.
Run two variations of the same sale: one where prompt cure preserves the commercial bargain and one where timing makes cure unreasonable. State how that fact changes fundamental breach and remedy selection. End every answer with a ranked recommendation rather than a catalogue: primary remedy, fallback remedy, procedural action and evidence to preserve.
A useful final paragraph states notice or declaration, deadline, mitigation action and expected commercial outcome. In revision, mark each sentence as threshold, application, counterargument or consequence. If a paragraph contains only remedy names, rewrite it until each remedy is connected to an article-level condition and a concrete fact.
Keep a running remedy log for each hypothetical, noting the client’s first instruction and any later fact that changes it. A delayed delivery may initially call for additional time but later justify cover or avoidance; record the transition and required declaration. This teaches remedies as a sequence of decisions under uncertainty, not a static menu chosen after all facts are known.
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