![]() The buyer had resold the goods under the contract to two companies from China (10,000 tons each). In addition, the buyer did not receive any evidence from the seller to prove force majeure. ![]() On 3 June, the seller requested release of its liability for breach due to force majeure but according to the related materials, there were no matters which constitute force majeure during the period of delivery stipulated in the contract. However, after the time of delivery stipulated in the contract, the seller still did not deliver the goods. After signing the contract, the buyer issued a letter of credit and on 16 and, the buyer urged the seller twice by mail to deliver the goods on time. In this case, the seller from Australia and the buyer from China entered into contract on 24 March 1994 for delivery of 20,000 tons of compound fertilizer by the seller to the buyer. ![]() See Arbitral Award CIETAC, 30 January 1996. In this respect also decision LG Krefeld, 28 April 1993, unpublished, cited according to Witz ( 1995), p. See also decision Schiedsgericht der Börse für landwirtschaftliche Produkte in Wien, 10 December 1997, CISG-Online 351 (Pace) Oberlandesgericht Düsseldorf, 14 January 1994, CISG-Online 119 (Pace). In this case, the Court held that, prior to the date fixed for the delivery of the shoes, it was “clear” that the buyer would not pay the price and therefore found the seller to be entitled to avoid the contract pursuant to Art.72.1 and 2 CISG and to recover damages- LG Berlin,, CISG-Online 70 (Pace). In view of such circumstances, the seller declared the second contract avoided and sold to a third party the goods he had agreed to deliver to the buyer under that contract. Incidentally, those shoes had been delivered to the buyer four months earlier, and the buyer had not given notice of any deficiency to the seller. The buyer refused to honour the request, asserting that the shoes delivered under the first contract had been defective. The seller therefore requested from the buyer security for payment under the second contract. However, before the delivery date under this contract (second contract), the buyer refused to pay the price for the shoes he had received under a contract these parties had concluded earlier (first contract). Thus, for example in a case decided by a German court, a contract for the sale of shoes was concluded, with the seller undertaking to deliver the goods by a certain date, and the buyer undertaking to pay the price within 60 days after the date of the invoice. In conclusion, the paper sums up the issues raised by the CISG rules on anticipatory breach and suggests optimum solutions for their application and interpretation. Since a comprehensive examination of the CISG rules on anticipatory breach requires a comparative analysis of the solutions from other sources of uniform contract law, the solutions offered by the UNIDROIT Principles and the Principles of European Contract Law (PECL) concerning anticipatory non-performance are given special consideration. A consideration of declaration and legal effects of contract avoidance wraps up the examination of CISG rules. The central theme of the paper is focused on future fundamental breach of contract, the duty to give notice to the debtor of the intention to avoid contract, and the debtor’s refusal to perform. Following an introduction, the author presents an overview of the general rules of the CISG on anticipatory breach, with special reference to fundamental breach of contract as a general ground for contract avoidance under the Convention. The paper examines the UN Convention on Contracts for the International Sale of Goods (CISG) rules on anticipatory breach of contract.
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