Introduction Goods (CISG) but I think we are on

Introduction

This
paper has mainly concentrated and focused on what remedies available under the
convention of international of Sale of Goods (CISG). In short under this
convention there are so many remedies available for aggrieved parts who seek
remedies when the other party either intentionally or negligently breaches fundamental
obligation of the contract. This question may happen to your mind that what is this
CISG? This is Vienna convention; it is treaty between so many states that agreed
themselves to form and to follow uniform international sales law1
Perhaps, this convention took place since 1880 and until now it has ratified by
89 states that they had seen that this is proportion and practicable for world
trade laws2 According
to world business man believing that this convention is one of successful
convention for international uniform law in the world especially on the issues
concerning international business. Unfortunately my country Tanzania is not a
party of this convention of international Sale of Goods (CISG) but I think we
are on the way to be among the contracting party list of this convention.

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This
convention is very important and very successful hence it allow the parties to
avoid choice of law issues because this convention accepted substantive rule of
the contracting parties, accept courts and even arbitration unless otherwise excluded
by the express terms and condition of the contract3
this means that the domestic law may be applicable in transaction of goods
between parties from different contracting states.

The
Vienna convention as unified sales law in the world even thought there are
others convention related to sale of goods where by states contracted each
other and obey on them but this convention is quite different, it success to
helps contracting nations being together by obeying rule and procedure of
(CISG) regardless of their different legal system. Nevertheless the drafter of
this convention tried the best to make the convention freely from any
interference to government, agency, institution, remedies, and concept or to
any other particular legal system or doctrine. Due to that situation it led
compromise to various approach tradition and doctrine. I insist that the whole
world now know that this convention has influenced the development of
international trade with preservation of and ensuring the protection of trader interest
right during the breaching of their contract.

General principle under CISG

According to principle of
remedies under CISG is that if the seller has failed to perform any of its
obligations under the contract or under the convention of international sale of
goods, the buyer may exercise the rights to claim damages. However the seller
should not deprived the rights of buyer to claim damages when exercising his/her
rights of any other remedies4
this principle show that there are equal rights between buyer and seller
according to this convention. So all principle rights between buyer and seller are
preserved, protected and guarantee.

Remedies available under CISG

CISG as international uniform
sale law which was designated to ensure justice on the field of international
business where by previously there were so many problems concerned with
contracts related to the international trade. But now however, this convention
of CISG helps international business man to their business contracts because
they are free from stress of losing their money and time for negligently or
intentionally breach of the contract against business partner. Therefore, under
this convention there are different remedies available where by the both party
to a contract are entitled to them once one party destroy the fundamentals
breach of contract. The remedies include as following. 

Specific
performance

This
is one among the available remedy under convention of international sale of
goods, this remedy is ordered by the court to command breaching party to do
certain act in order to fulfill his/her obligation in the contract. This remedy
is very wide accepted due to this concept of returning suffering party to
his/her original position as never been contracted.

According
to article5 stipulated that “the buyer is entitled to require
performance by the seller of his obligations unless the buyer has resorted to a
remedy which is inconsistent with this requirement” A remedy which is
inconsistent with specific performance may be a remedy which aimed at cancellation
or avoidance of the agreement. However when the party is entitle for specific
performance, the court is not necessary to announce judgment for specific
performance unless the court  may enter
judgment by using it own law6 according to similar contract of sale of goods which
are not governed by this convention

The right to specific
performance may be either party require substitutes goods or repair of goods,
it depend on nature of breakup of the terms and condition. Therefore, both circumstance
deals with situations where there has been performance in fact, but such
performance does not conform to the provisions and requirements of the
contract.

According to article7
stipulated that “If the goods do not conform with the contract, the buyer may
require delivery of substitute goods only if the lack of conformity constitutes
a fundamental breach of contract and the request for substitute goods is made
in conjunction with the notice given under article8
or within a reasonable time thereafter” The substitutes of goods is delivered
only to the buyer where there is the lack of conformity which constitutes with
fundamental breach of contract and where the notice of substitute goods was
made by buyer within a reasonable time. If these two situations happened, the
court concerned with that issue may order remedy of substitute of goods, where
by the seller should perform the delivery of new goods to buyer as the origin
one was damaged.

Illustration, A and B entered into contract of sale of goods, under their contract A should delivered pix 100 of Nike
shoes but unfortunately A delivered
pix 100 of Adidas shoes. Look carefully this example, here there is lack of
conformity of the contract which constitutes to fundamental breach of contract
because A instead of delivered pix
100 of Nike shoes A delivered pix
100 of Adidas shoes. Here A breaches
the contract and A is entitled to
delivered substitute goods to the B
within the reasonable time.

According to CISG article9
stipulated that “if the goods do not conform with the contract, the buyer is
entitled to require the seller to remedy the lack of conformity by repair”
under CISG also there repairing as a specific performance remedy, this remedy
arising when the goods do not conform with contract where by the seller
delivered defective goods to the buyer and the buyer react on that, under this convention
gives right the buyer to require the seller to remedy for repair the goods
delivered.

(a) The
requirement to make repair is not unreasonable having regard to all the
circumstances.

(b) The request
for repair was made in conjunction with the notice given under article 39 or
within a reasonable time thereafter.

According
to article10
Stipulated that, “the
buyer may fix an additional period of time of reasonable length for performance
by the seller of his obligations” where the buyer
insist on specific performance after has fixed an additional period of time to
the seller, he may not exercise any of its other remedies under this
Convention. However, the buyer is not deprived of any right he may have to
claim damages for delay in performance.

Due
to this article 47 of CISG gives the rights to buyer bring other additional
time to seller so as to give him chance to perform his obligation with
reasonable time and during the time of performance of this additional time the
buyer has not right to seek any remedies related to the additional time
performance by seller. Therefore the buyer should wait until the expiration of
agreed time, after that can initiate his claim for remedies against seller.

According
to article11
stipulated that “Seller may, even after the date delivery, remedy at his own
expense any failure to perform its obligations if it 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”

The
seller may also request the buyer to make known whether he will accept
performance and if the buyer does not comply with the request within a
reasonable period of time, the seller may perform within the time indicated in
its request. The buyer may not, during that period of time, resort to any
remedy which is inconsistent with performance by the seller.

This
right to cure the breach of contract is subject to the rights of the buyer to
avoid or cancel the contract in respect of article 49 of the CISG. Thus, where
the buyer is entitled to avoid the contract, he may do so even if the seller is
willing to cure the breach of contract.

1 Joseph
Lookofsky, ‘Loose Ends and Contorts in International Sales: Problems in the
Harmonization of Private Law   Rules’
(1991) 39 American Journal of Comparative Law 403.

2 Bruno
Zeller, CISG and the Unification of International Trade Law (1st ed,
2007) 94.

3 See
International Commercial Terms (Incoterms) in External Links.

4 CISG
art 45, 46, 52, 74, 77

5 CISG
Art 46(1)

6 https://www.cisg.law.pace.edu/cisg/text/digest-2012-71.html

7
CISG Art 46(2)

8 CISG
Art 39

9
Article 46(3)

10
Article 47

11 CISG
Art 48