Published in Blanpain gen. ed., International Encyclopaedia of Laws-Contracts (Kluwer Law International 1993) 1-156. Reproduced with permission from Kluwer Law International.
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[ARTICLE 48]
Seller's Right to Cure After the Delivery Date
220. By providing a seller who delivers before the contract date with a certain right to 'cure' defects in the goods so delivered, Article 37 gives the seller a chance to limit the damage done and thus to limit the extent of remedial relief otherwise available to the injured buyer.1 Article 48(1) supplements this early-delivery rule with a more limited right for the seller to cure defects after the delivery date:
'(1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention.'
1. See supra No. 182.
221. Mistakes will happen, inter alia, in international trade: (some) of the goods delivered may not conform to the contract; a third party's interest may appear to conflict; the documents may be defective in some respect; etc. In most situations, an effective remedy by the seller of her failure to perform in full -- even where such 'cure' takes place after the contractual delivery date -- will be preferable to an avoidance of the contract: surely for the seller, and perhaps even for the buyer. To exercise her right under Article 48(1), however, the seller must produce a cure which is quick, convenient and certain as seen from buyer's point of view.
222. The 'subject to' reference in Article 48(1) to Article 49 is less than clear. However, where time is not of the essence, the seller should have the chance to cure even a seriously non-conforming delivery: in this situation, most commentators therefore agree that the seller's right to cure is not defeatable by a buyer's exercise of his right to avoid for a fundamental breach.1
1. See (e.g.) Schlechtriem, P., op. cit. at p. 78 and Honnold, J., op. cit. at pp. 375-376.
223. The remainder of Article 48, paragraphs (2)-(4), contains default rules regarding proposals and notice by the seller regarding cure.1
1.'(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.
'(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision.
'(4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer.'
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