Essay On How Serious Non-Conformity Is The Seriousness Of Breach

The second criterion is the seriousness of the breach. How far away from the agreed standard are the goods which have been delivered? How serious are the conse-quences for the buyer? What are the costs of repair? The fact that the seriousness of the breach should be taken into account is probably beyond dispute. How much weight should be attached to it is an altogether different question. To put it differently: does a serious non-conformity in itself justify avoidance? The answer probably is no.

The third criterion is the seller’s right to cure the defect. Unless the buyer has a legitimate interest in immediate avoidance of the contract, the seller has a right to cure a defect. As a consequence, even a serious breach, as a rule, will not

Dispatch of the notice by ordinary is not essential since it is the other party who committed a fundamental breach and who has to bear the risk of any incorrect or failing transmission of the declaration of avoidance. The notice re-quires no specific form. It can be made in writing or even orally. It is, however, disput-ed whether the CISG allows also for an implicit declaration of avoidance and whether mere conduct can constitute such implicit declaration. Thus far, cases of that kind ap-pear to be rare and there is no case law on the question. Nonetheless, where the conduct of the party shows clearly the intention to terminate the contract and where the conduct is communicated to the party in breach, this should suffice due to the general principle of freedom of form enshrined in Article 11. However, in the case of any ambiguity, no valid declaration of avoidance can be inferred from conduct. . If, for instance, a notice expresses that the goods are “immediately and totally” at the seller’s disposal, that the repayment of the price is requested and that any further delivery is refused, it is regard-ed as a sufficiently clear declaration of