Avoidance of the Contract in Case of Non-Conforming Goods (Article 49(1)(a) CISG)

Abstract

Article 49(1)(a) CISG provides that avoidance is possible, and only possible, "if the failure by the seller to perform any of bis obligations under the contract or this conventiön amounts to a fundamental breach of contract."According to Article 25 CISG, a breach is fundamental "if it results in such detriment to the [buye:r] as substantially to deprive him ofwhat he is entitled to expect under the contract, unless the [ seller] did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result."This presupposes that the defect has a certain objective importance.Therefore, the lack of conformity must be so serious that the buyer cannot be required to retain the goods and could not be adequately compensated by damages or a price reduction.The substantiality of the detriment to the buyer may be ascertained by having regard to the express stipulations of the parties, the purpose for which the goods are bought, and finally, to the question of whether it is possible to eure the defect.

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