|
|
|
|
|
|
|
|
|
|
|
|
Remedies for Non-performance - Perspectives from CISG, UNIDROIT Principles and PECL,
Liu Chengwei *
INTRODUCTION
[INTRODUCTION]
LIST OF ABBREVIATIONS
A. For Documents
B. For Journals
C. For Organizations
D. For Citations
PART I. GENERAL REVIEW
CHAPTER 1. SOURCES OF INSPIRATION
[CHAPTER 1. SOURCES OF INSPIRATION]
1.1 INTRODUCTION
1.2 OVERVIEW OF THE STUDIED INSTRUMENTS
1.2.1 CISG
1.2.2 UNIDROIT Principles
1.2.3 PECL
1.2.4 Brief Comparison
1.3 MAJOR SOURCES OF INFORMATION
CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE
[CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE]
2.1 INTRODUCTION
2.2 THE CONCEPTS: BREACH OF CONTRACT vs. NON-PERFORMANCE
2.3 REMEDIAL SCHEMES OF THE STUDIED INSTRUMENTS
2.3.1 CISG Part III (Partial)
2.3.2 UNIDROIT Principles Chapter 7
2.3.3 PECL Chapters 8, 9
2.3.4 Concluding Remarks
2.4 STRUCTURE OF THIS PRESENTATION
PART II. PRESERVING PERFORMANCE
PART III. TERMINATION
PART IV. DAMAGES
PART V. EXCUSES
PART II. PRESERVING PERFORMANCE
CHAPTER 3. SPECIFIC PERFORMANCE
[CHAPTER 3. SPECIFIC PERFORMANCE]
3.1 COMPRISED APPROACH UNDER THE CISG
3.1.1 Introduction
3.1.2 Primacy of Specific Performance under Arts. 46/62
3.1.3 Forum's Rule under Art. 28
3.2 BUYER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 46
3.2.1 Introduction
3.2.2 General Rule: Art. 46(1)
3.2.2.1 Right to require performance
3.2.2.2 Non-resorting to inconsistent remedies
3.2.3 Right to Demand Cure: Arts. 46(2) and 46(3)
3.2.3.1 In general
3.2.3.2 Delivery of substitute goods: Art. 46(2)
3.2.3.3 Right to repair: Art. 46(3)
3.2.3.4 Time limit restriction
3.2.3.5 A summary
3.3 SELLER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 62
3.3.1 Rationale of Art. 62
3.3.2 General Application
3.3.3 Potential Problems
3.4 UNIFORM REMEDY IN UNIDROIT PRINCIPLES / PECL
3.4.1 Introduction
3.4.2 Performance of Monetary Obligation
3.4.2.1 Money due generally recoverable
3.4.2.2 Money not yet due
3.4.3 Performance of Non-monetary Obligation: In General
3.4.4 Exceptions to Performance of Non-monetary Obligation
3.4.4.1 The principle and exceptions
3.4.4.2 Performance impossible
3.4.4.3 Unreasonable burden
3.4.4.4 Performance from another source available
3.4.4.5 Performance of an exclusively personal character
3.4.4.6 Unreasonable delay in requiring performance
3.4.5 Right to Require Remedying of Defective Performance
3.4.6 Other Issues
CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE
[CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE]
4.1 GENERAL CONSIDERATIONS
4.2 RATIONALE UNDERLYING THE OPTIONAL APPROACH
4.2.1 Optional Approach under the Studied Instruments
4.2.2 Underlying Rationale
4.2.3 Granting Additional Period in Two Situations
4.3 SETTING OF A NACHFRIST NOTICE
4.3.1 Transmission of the Intention
4.3.1.1 Form of the notice
4.3.1.2 Risk in transmission
4.3.2 Fixing of the Time-limit
4.3.2.1 Fixed period
4.3.2.2 Reasonable length
4.4 EFFECTS OF SERVING A NACHFRIST NOTICE
4.4.1 Remedies Available/Suspended during the Period
4.4.2 Early End of the Existing Uncertainty upon Rejecting Notice
4.4.3 Termination upon Expiry of the Extension
4.4.3.1 In general
4.4.3.2 CISG approach
4.4.3.3 UNIDROIT Principles / PECL approach
CHAPTER 5. CURE BY NON-PERFORMING PARTY
[CHAPTER 5. CURE BY NON-PERFORMING PARTY]
5.1 INTRODUCTION
5.2 CONDITIONS FOR INVOKING CURE
5.2.1 In General
5.2.2 Reasonableness of Notice
5.2.3 Appropriateness of Cure
5.3 SELLER'S RIGHT TO CURE AND BUYER'S RIGHT TO TERMINATION
5.4 EFFECTS OF EFFECTIVE NOTICE
5.4.1 Right to Inquire vs. Duty to Accept Cure
5.4.2 Suspension of Inconsistent Remedies
5.4.3 Retained Rights of the Aggrieved Party
CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY
[CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY]
6.1 GENERAL CONSIDERATIONS
6.2 FEATURES OF CISG ART. 50
6.2.1 Unique Role and Justification
6.2.2 Self-help Remedy
6.2.3 Seeming Advantages
6.3 IN CONTRAST WITH DAMAGES
6.3.1 Introduction
6.3.2 Distinctions from Damages under the CISG
6.3.2.1 Diverse ratio legis
6.3.2.2 Different manner in calculation
6.3.2.3 Other differences
6.3.2.4 A summary
6.3.3 An Alternative to Damages
6.3.3.1 Introduction
6.3.3.2 In conjunction with force majeure
6.3.3.3 In case of falling market
6.3.3.4 Upon difficulty in proving damages
6.3.3.5 A summary
6.4 ESSENTIALS OF CISG ART. 50
6.4.1 Scope of Application
6.4.1.1 General application in case of non-conformity
6.4.1.2 Ambiguity over defects in title
6.4.2 Exercise of the Right to Price Reduction
6.4.3 Calculation of Proportional Reduction
6.4.3.1 Decisive point: time of delivery
6.4.3.2 Place for comparing
6.4.4 Limited by the Cure
6.5 STATUS OF THE PRICE REDUCTION UNDER UNIDROIT PRINCIPLES / PECL
6.5.1 Exclusion under the UNIDROIT Principles
6.5.2 Inclusion under the European Principles
PART III. TERMINATION
CHAPTER 7. RIGHT TO TERMINATION
[CHAPTER 7. RIGHT TO TERMINATION]
7.1 GENERAL CONSIDERATIONS
7.2 GROUNDS FOR TERMINATION
7.3 CONCLUDING REMARKS
CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE
[CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE]
8.1 GENERAL CONSIDERATIONS
8.2 FORESEEABLE SUBSTANTIAL DETRIMENT
8.2.1 Introduction
8.2.2 Substantial Detriment
8.2.2.1 Existing detriment
8.2.2.2 Substantial deprivation
8.2.2.3 Discernible expectations
8.2.3 Foreseeability
8.2.3.1 Introduction
8.2.3.2 Test for foreseeability
8.2.3.3 Time for foreseeability
8.2.3.4 Burden to prove unforeseeability
8.3 OTHER ELEMENTS IN DEFINING FUNDAMENTAL NON-PERFORMANCE
8.3.1 Strict Compliance of Essence
8.3.2 Intentional Non-performance
8.3.3 No Reliance on Future Performance
8.3.4 Disproportionate Loss
8.4 CONCLUDING REMARKS
CHAPTER 9. ANTICIPATORY NON-PERFORMANCE
[CHAPTER 9. ANTICIPATORY NON-PERFORMANCE]
9.1 GENERAL CONSIDERATIONS
9.2 GROUNDS FOR SUSPENSION
9.3 SELLER'S RIGHT TO STOP GOODS IN TRANSIT UPON SUSPENSION
9.4 DUTY TO GIVE NOTICE IN EXERCISING SUSPENSION
9.5 RESTORING PERFORMANCE BY GIVING ADEQUATE ASSURANCE
9.6 TERMINATION UPON ANTICIPATORY FUNDAMENTAL NON-PERFORMANCE
9.6.1 In General
9.6.2 Clear Indication of A Fundamental Non-performance
9.6.3 Notice Given in case of Termination
9.7 ADEQUATE ASSURANCE OF DUE PERFORMANCE
9.7.1 Purpose of Rule
9.7.2 Non-receipt of Adequate Assurance
9.8 CONCLUDING REMARKS
CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART
[CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART]
10.1 TERMINATION OF INSTALLMENT CONTRACTS: CISG ART. 73
10.2 TERMINATION OF FUTURE INSTALLMENTS: CISG ART. 73(2)
10.3 TERMINATION OF A CONTRACT AS A WHOLE: CISG ART. 73(3)
10.4 PARTIAL TERMINATIO: CISG ART. 51
10.5 COMBINED APPROACH: PECL ART. 9:302
10.6 CONCLLUDING REMARKS
CHAPTER 11. DECLARATION OF TERMINATION
[CHAPTER 11. DECLARATION OF TERMINATION]
11.1 NO AUTOMATIC TERMINATION
11.2 INFORMALITY OF THE NOTICE
11.3 TRANSMISSION OF THE INTENTION
11.4 RISK IN COMMUNICATION
11.4.1 CISG Approach
11.4.2 Receipt Principle under the UNIDROIT Principles
11.4.3 Combined Approach under the PECL
11.5 TIME LIMIT FOR THE DECLARATION: IN GENERAL
11.6 DECLARATION WITHIN REASONABLE TIME
11.6.1 Definition of reasonable time
11.6.2 CISG Approach
11.6.3 UNIDROIT Principles / PECL Approach
11.6.4 Concluding Remarks
CHAPTER 12. EFFECTS OF TERMINATION
[CHAPTER 12. EFFECTS OF TERMINATION]
12.1 INTRODUCTION
12.2 RELIEF OF FUTURE PERFORMANCE
12.3 RETROSPECTIVE OR PROSPECTIVE APPROACH
12.4 UNAFFECTED RIGHTS AND OBLIGATIONS AFTER TERMINATION
12.4.1 Continuing Right to Claim Damages
12.4.2 Unaffected Clauses Intended to Apply despite Termination
12.5 RESTITUTION
12.5.1 In General
12.5.2 Entitlement of Parties to Restitution on Termination
12.5.3 Restitution under the PECL
12.5.3.1 Property reduced in value: Art. 9:306
12.5.3.2 Recovery of money paid and property: Arts. 9:306, 9:307
12.5.3.3 Concluding remarks
12.5.4 Restitution of Benefits Received
12.5.5 Exceptions: Restitution Not Possible or Appropriate
12.5.5.1 CISG approach: making restitution a prerequisite for avoidance
12.5.5.2 UPICC/PECL approach: focusing on the allowance upon impossible restitution
12.5.5.3 Comparative perspectives
12.5.5.4 Concluding remarks
PART IV. DAMAGES
CHAPTER 13. GENERAL MEASURE OF DAMAGES
[CHAPTER 13. GENERAL MEASURE OF DAMAGES]
13.1 RIGHT TO DAMAGES
13.2 FULL COMPENSATION
13.3 RECOVERABLE LOSSES
13.4 COMPENSATION OF NON-PECUNIARY LOSS
13.5 COMPUTATION OF LOSSES AND GAINS
CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES
[CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES]
14.1 GENERAL CONSIDERATIONS
14.2 FORESEEABILITY OF LOSS
14.2.1 In General
14.2.2 Test for Foreseeability
14.2.3 Party Concerned and Reference Point
14.2.4 Evaluation of Foreseeability
14.2.5 Content of Foreseeability
14.2.6 Concluding Remarks
14.3 CERTAINTY OF HARM
14.4 CONTRIBUTION TO HARM
14.4.1 In General
14.4.2 Ways of Contributing to the Harm
14.4.3 Remedies Affected by the Contribution
14.4.3.1 Remedies available upon non-performance caused solely by the contribution
14.4.3.2 Damages proportionately reduced due to partial contribution
14.5 DUTY TO MITIGATE
14.5.1 In General
14.5.2 Reasonable Measures Taken
14.5.3 Effects of Failure to Mitigate
CHAPTER 15. DAMAGES UPON TERMINATION
[CHAPTER 15. DAMAGES UPON TERMINATION]
15.1 GENERAL CONSIDERATIONS
15.2 DAMAGES UPON SUBSTITUTE TRANSACTIONS
15.2.1 Introduction
15.2.2 Presupposed Situations Calling for Concrete Calculation
15.2.3 Substitute Transaction must be Reasonable Substitute
15.3 DAMAGES UPON CURRENT PRICE
15.3.1 Introduction
15.3.2 Presupposed Situations Calling for Abstract Calculation
15.3.3 Determination of "Current Price"
15.3.3.1 In general
15.3.3.2 Reference point
15.3.3.3 Relevant place
15.4 FURTHER DAMAGES
CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE
[CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE]
CHAPTER 17. RECOVERY OF ATTORNEYS' FEES
[CHAPTER 17. RECOVERY OF ATTORNEYS' FEES]
17.1 GENERAL CONSIDERATIONS
17.1.1 Introduction
17.1.2 Recoverability under "Loser-pays" Principle
17.1.3 Excluded by "American Rule"
17.2 CISG DECISIONS CONCERNING ATTORNEYS' FEES
17.3 PROBLEMATIC RECOVERY UNDER ART. 74 CISG
CHAPTER 18. PAYMENT OF INTEREST
[CHAPTER 18. PAYMENT OF INTEREST]
18.1 INTRODUCTION
18.2 GENERAL ENTITLEMENT TO INTEREST
18.3 ADDITIONAL DAMAGES
18.4 INTEREST ON DAMAGES
18.5 ACCRUAL OF INTEREST
18.6 RATE OF INTEREST
PART V. EXCUSES
CHAPTER 19. CHANGE OF CIRCUMSTANCES
[CHAPTER 19. CHANGE OF CIRCUMSTANCES]
19.1 INTRODUCTION
19.2 UNSDERLYING DOCTRINCE; REBUS SIC STANTIBUS
19.3 DIFFERENT APPROACHES TO CHANGED CIRCUMSTANCES
19.3.1 Historical Review
19.3.2 National Doctrines
19.3.3 International Perspective
19.3.3.1 Public international law
19.3.3.2 International commercial practice
19.3.4 Conclusion
19.4 DEFINITIONS OF force majeure AND HARDSHIP
19.4.1 Force Majeure
19.4.2 Hardship
19.4.3 Comparison
19.5 GENERAL APPROACHES IN THE STUDIED INSTRUMENTS
19.5.1 Approach under the CISG
19.5.2 Approach under the UNIDROIT Principles
19.5.3 Approach under the PECL
19.5.4 Concluding Remarks
CHAPTER 20. force majeure
[CHAPTER 20. force majeure]
20.1 INTRODUCTION
20.2 RELEVANT TEXTS
20.2.1 Exemptions: CISG Art. 79
20.2.2 Force Majeure: UNIDROIT Principles Art. 6.1.7
20.2.3 Excuse Due to an Impediment: PECL Art. 8:108
20.2.4 Comparison
20.3 GENERAL RULE
20.3.1 Scope of Excusable Non-performance
20.3.2 Existence of Qualifying Impediment
20.3.2.1 Introduction of a new word
20.3.2.2 Interpretation of the word
20.3.2.3 Problematic situations
20.3.3 Conditions for Exempting Impediment
20.3.3.1 Beyond control
20.3.3.2 Unforeseeable
20.3.3.3 Unavoidable or insurmountable
20.3.3.4 Causation
20.4 RESPONSIBILITY FOR THIRD PARTIES
20.5 TEMPORARY IMPEDIMENT
20.6 DUTY TO NOTIFY
20.7 EFFECTS
20.7.1 In General
20.7.2 Effect on Right to Damages
20.7.3 Effect on Right to Performance
20.7.4 Effect on Right to Termination
CHAPTER 21. HARDSHIP
[CHAPTER 21. HARDSHIP]
21.1 GAP IN THE CISG?
21.2 INTERPLAY BETWEEN CISG EXCUSE AND UNIDROIT PRINCIPLES / PECL HARDSHIP
21.2.1 Hardship: UNIDROIT Principles Arts. 6.2.1 through 6.2.3
21.2.2 Change of Circumstances: PECL Art. 6:111
21.2.3 Gap-filling Application of Hardship Provisions?
21.3 CONDITIONS FOR INVOKING HARDSHIP
21.3.1 In General
21.3.2 Crucial Point: Fundamental Alteration of Equilibrium
21.3.3 Additional Requirements for Hardship to Arise
21.3.3.1 Time factor: occurrence after conclusion
21.3.3.2 Unforeseeability
21.3.3.3 Risk not assumed
21.4 EFFECTS OF HARDSHIP
21.4.1 In General
21.4.2 Triggering of Renegotiation
21.4.2.1 Request for renegotiation
21.4.2.2 Renegotiation in good faith
21.4.3 Court Measures in case of Hardship
21.4.4 Concluding Remarks
CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES
[CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES]
22.1 GENERAL CONSIDERATIONS
22.2 FORCE MAJEURE CLAUSE
22.2.1 Introduction
22.2.2 Drafting Considerations
22.3 HARDSHIP CLAUSE
22.3.1 Introduction
22.3.2 Drafting Considerations
22.4 OVERLAPPING OF THE CLAUSES
22.5 USE OF STANDARD FORMS: ICC No. 421 (partial)
Endnotes
Endnotes
Metadata
SiSU Metadata, document information
Manifest
SiSU Manifest, alternative outputs etc.
Remedies for Non-performance - Perspectives from CISG, UNIDROIT Principles and PECL,
PART III. TERMINATION
CHAPTER 11. DECLARATION OF TERMINATION
Termination is an act of the aggrieved party, not an act of a court or arbitrator. By way of contrast with the approach of some civil law jurisdictions, there is no requirement under the Convention (as well as the two Principles) that the party avoiding the contract obtain judicial approval or confirmation. 551 "Avoidance constitutes a right. Since it is made dependent on a declaration, the entitled party can consciously decide to continue to claim performance of the contract even when there are grounds for avoidance." 552 In other words, the aggrieved party has a right and no obligation(except in regard to mitigation of losses) to declare the contract avoided.
However, "[a]voidance of the contract by one party may have serious consequences for the other party. He may need to take immediate action to minimize the consequences of the avoidance such as to cease manufacturing, packing or shipping the goods or, if the goods have already been delivered, to retake possession and arrange to dispose of them." 553 For this reason CISG Art. 26 provides "[a] declaration of avoidance of the contract is effective only if made by notice to the other party". It follows that the contract is avoided at the time notice of the declaration of avoidance is given to the other party. 554 Thus, a non-breaching party's avoidance will be successful and recognized by a court only if a notice of avoidance is communicated to the breaching party. The non-breaching party therefore cannot effectively exercise the right to declare the contract avoided if he fails or refuses to give notice to the other party. This narrows the rule from that found in ULIS Arts. 26, 30, 61 and 62, which provided for an automatic or ipso facto avoidance in certain circumstances in addition to avoidance by declaration of the aggrieved party. Automatic or ipso facto avoidance was deleted from the remedial system in this Convention because it led to uncertainty as to whether the contract was still in force or whether it had been ipso facto avoided. 555
In other words, prescribing a declaration of avoidance, the CISG breaks with the ipso facto avoidance, i.e. avoidance by virtue of law, which has played a great role in ULIS, thus overcoming the uncertainty as to whether, and possibly when, the contract is made void. 556 Art. 7.3.2(1) UPICC reaffirms the principle: "The right of a party to terminate the contract is exercised by notice to the other party." The notice requirements recited in UPICC Art. 7.3.2(1) and CISG Art. 26 correspond to one another. 557 PECL Art. 9:303(1) contains a substantially identical rule: "A party's right to terminate the contract is to be exercised by notice to the other party." The notice requirement will permit the non-performing party to avoid any loss due to uncertainty as to whether the aggrieved party will accept the performance. At the same time it prevents the aggrieved party from speculating on a rise or fall in the value of the performance to the detriment of the non-performing party. 558
However, the PECL specifies two exceptions to the rule that notice of termination must be given: The first is under Art. 8:106(3), according to which a notice setting a reasonable period during which the defaulting party must perform may provide that at the end of the period the contract shall terminate automatically if performance has still not been made. The second is under Art. 9:303(4), which provides that where a party's non-performance is excused because it was due to a total and permanent impediment, the contract terminates automatically. Some legal systems regard the contract as destroyed by such an event. However, in cases of only partial or temporary impediment, the defaulting party may still tender performance, and a notice of termination by the aggrieved party will be needed. Note that in cases of excused non-performance, the non-performing party has a duty under Art. 8:103(3) to give notice of the impediment. 559
Indeed, the two exceptions specified by the PECL can also be found or implied under the CISG. It is said that under the CISG the entitled party can, however, achieve partly similar effects (to ipso facto avoidance) when he, in cases where the right to make the contract void follows from the expiry of a Nachfrist without performance (Art. 49, subpara. (b); Art. 64, subpara. (b)), already in fixing such Nachfrist, declares the contract void If the other party does not perform within that additional period. 560 In addition, it is to be noted that where the failure in performance is due to a supervening event for which neither party is contractually responsible, such an event may lead to automatic discharge; but this differs from termination for contractual default, most obviously in that it excludes all claims for damages. 561
On the other hand, although it is not clear in the UNIDROIT Principles whether the contract would terminate automatically where a party's non-performance is excused because it was due to a total and permanent impediment, it does be specified in UPICC Art. 7.1.5(3) that the aggrieved party may in its notice allowing additional period for performance "provide that if the other party fails to perform within the period allowed by the notice the contract shall automatically terminate". However, Art. 7.1.5(4) UPICC stipulates at the same time: "Paragraph (3) does not apply where the obligation which has not been performed is only a minor part of the contractual obligation of the non-performing party."
Nonetheless, in general, there is no automatic termination: there must be a "declaration" of termination. As a rule termination is effective only if notice thereof is given by the aggrieved party to the defaulting party. However, it must be remembered that termination may be effected by the act of the aggrieved party alone; it does not have to bring an action in court in order to have the contract terminated. 562
551. See J. W. Carter in "Party Autonomy and Statutory Regulation: Sale of Goods"; 6 Journal of Contract Law, North Ryde NSW, Australia (1993); p. 107. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/carter3.html›
552. See Fritz Enderlein, Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992); p. 116. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html›
553. See Secretariat Commentary on Art. 24 of the 1978 Draft [draft counterpart of CISG Art. 26], Comment 1. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-26.html› The match-up indicates that Art. 24 of the 1978 Draft and CISG Art. 26 are identical. See the match-up, available online at ‹http://www.cisg.law.pace.edu/cisg/text/matchup/matchup-d-26.html›
554. Ibid., Comment 2.
555. See Secretariat Commentary on Art. 45 of the 1978 Draft [counterpart of CISG Art. 49], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-49.html› ; also Secretariat Commentary on Art. 60 of the 1978 Draft [counterpart of CISG Art. 64], Comment 2. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-64.html› Under ULIS, two types of avoidance of the contract were provided for. The first was ipso facto avoidance, that is, the right to continue performance under the contract would come to an end without needing a declaration by the victim of breach, and the second was avoidance by declaration or notice from the innocent party to the breaching party. Ipso facto avoidance was eliminated from the remedial system of the present Convention on the ground that it led to uncertainty as regards the rights and obligations of the parties, e.g., in the case of late delivery, the seller needs to know when he must reship or resell the goods or take other actions to prevent their wastage or spoilage. (See Mirghasem Jafarzadeh, infra. note 12.)
556. Supra. note 3.
557. See Albert H. Kritzer in "Editorial remarks on the manner in which the UNIDROIT Principles may be used to interpret or supplement CISG Article 26". Available online at ‹http://www.cisg.law.pace.edu/cisg/principles/uni26.html›
558. See Comment 1 on Art. 7.3.2 UPICC.
559. Supra. note 1, Comment D.
560. Supra. note 3, p. 117.
561. See Mirghasem Jafarzadeh in "Buyer's Right to Withhold Performance and Termination of Contract: A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law" (2001). Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh1.html›
562. See Comment and Notes to the PECL: Art. 9:301. Comment B. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp49.html›
