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Part XII Unwinding of the Contract, 50 Unwinding of the Contract

From: Global Sales and Contract Law

Ingeborg Schwenzer, Pascal Hachem, Christopher Kee

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 03 August 2020

Subject(s):
Termination/unwinding of contract — Performance of contract

50  Unwinding of the Contract(p. 778) (p. 779)

  1. A.  General 50.01

  2. B.  Applicable Rules 50.04

    1. I.  General 50.04

    2. II.  Property Law 50.07

    3. III.  Unjust Enrichment 50.09

    4. IV.  Tort Law 50.12

    5. V.  Contractual Regime 50.13

  3. C.  Effects of Contract Coming to an End 50.15

    1. I.  Discharge of Primary Obligations 50.15

    2. II.  Effect on Damages Claims 50.16

    3. III.  Contract Provisions Not Affected by Avoidance 50.19

    4. IV.  Restitution of Performance Received 50.22

      1. 1.  General 50.22

      2. 2.  Restitution of Purchase Price 50.24

      3. 3.  Restitution of the Goods 50.27

        1. (a)  General 50.27

        2. (b)  Restitution of Fruits 50.30

        3. (c)  Deterioration of the Goods 50.31

      4. 4.  Concurrent Restitution 50.34

      5. 5.  Place, Costs, and Time of Restitution 50.35

A.  General

50.01  This chapter discusses cases where one or both parties have performed their part of the contract although the contract has failed for one reason or the other. The reasons why contracts may fail are many-fold—as has been shown throughout this text. Contracts may be invalid from the outset because necessary requirements for the formation of the contract have been lacking. Likewise a validly concluded contract may come to an end due to later circumstances that interfere with its performance, be it by breach of one party or otherwise. In all of these cases the unwinding of the contract becomes necessary wherever one or both parties have rendered (part) performance of the contract that was perceived to be the legal basis for such a performance. All legal systems have developed meticulously differentiated rules not only as concerns the different preconditions but also regarding the respective consequences when it comes to the unwinding of the contract. More often than not the differences can only be explained having regard to the historical development but not necessarily from a rational standpoint.

50.02  Reasons why a contract does not come into existence in the first place may be lack of capacity,1 lack of authority in case of an agent,2 mistake, fraud and duress,3 lack of necessary form requirements,4 illegality and immorality,5 but also—at least in some countries—initial impossibility.6 In these cases, as has been shown, invalidity may be ipso iure and absolute or it may only operate for one party and depend on a declaration and/or a court decision. Likewise—as has been shown in the chapter on avoidance7—reasons and mechanisms why and how a contract comes to an end where performance is in some way disturbed vary to a great extent throughout the legal systems.

(p. 780) 50.03  The following discussion envisages giving only a brief outline of the consequences of unwinding of a contract focusing on the modern tendencies as they can especially be found in uniform laws and projects.

B.  Applicable Rules

I.  General

50.04  Throughout the legal systems there are many different sets of rules that may govern the unwinding of a contract. They range from property law, unjust enrichment, and tort law to a contractual regime. The question of which set of rules applies in many instances depends on whether the failure of the contract operates ex tunc (retrospectively) or ex nunc (prospectively).

50.05  In general, it can be assumed that validity issues operate ex tunc;8 at no time has there been a valid contract. This does not only apply to such issues as illegality or immorality, lack of form requirements, and the like, but also to cases where the contract is not void ab initio but only voidable because of mistake, fraud, duress, gross disparity, or unconscionability.9

50.06  The case is different when it comes to avoidance. The starting point in civil law legal systems was that avoidance, too, has retrospective effect. To this day this holds true for most of the civil law legal systems belonging to the French legal tradition,10 the South American countries,11 the Arab countries,12 East Asia,13 Eastern Europe, and Central Asia.14 Common law legal systems take a different approach. There, avoidance for breach of contract operates only prospectively.15 The same holds true where the contract comes to an end because of frustration.16 The modern solution followed by uniform law and projects is also the prospective nature of avoidance.17 This approach is now also gaining ground in more and more civil law legal systems that formerly followed the retrospective approach.18

(p. 781) II.  Property Law

50.07  As has been shown above19 in many legal systems the transfer of property from the seller to the buyer depends upon a valid causa, in other words property does not pass if the underlying sales contract is void. If the contract ceases to exist with retrospective effect, be it following a rescission for mistake, fraud, duress and the like, or upon avoidance, property that had passed to the buyer automatically falls back upon the seller. Under English law, although avoidance is regarded as having prospective effects, by rejecting the goods the buyer—although property may have already passed to the buyer—re-vests it in the seller.20 This is not to protect the seller in breach but to ensure that it is the seller who bears the risk of loss after the rightful rejection of the goods and is thus a special instance.

50.08  Thus, unwinding as regards the goods that have been transferred from the seller to the buyer may be dealt with under property law in the civil law systems considered above. The main advantage of such proprietary claims consists in the seller having the possibility to reclaim the specific property in priority to claims of general creditors if the buyer is insolvent.

III.  Unjust Enrichment

50.09  A number of legal systems apply the rules of unjust enrichment where the contract has been avoided. This may have occurred because of a breach or, in civil law systems, following impossibility.21 In common law jurisdictions a distinction is drawn between seeking a restitutionary remedy for the breach of contract (restitution for wrongs),22 and a separate claim for unjust enrichment.23

50.10  If the contract is void or becomes invalidated after its conclusion, in most legal systems the effect regarding the restitution of performances rendered will be governed by the rules on unjust enrichment.24 Primarily, an unjust-enrichment claim enables the buyer to recover whatever it has paid on the purchase price. The seller may rely on unjust enrichment to reclaim goods that have been delivered in legal systems where property has passed and remains with the buyer despite a valid cause being absent, or in cases where the goods cannot be restored and it is seeking monetary relief for their value. In common law jurisdictions following the English model this would be called a claim for quantum valebat.25

50.11  Special rules apply in cases of illegal or immoral contracts. Where both parties have been equally implicated in the illegality—that is, where they are found to be in pari delicto or in pari turpitudine—under most legal systems neither party can sue to recover money paid or property transferred pursuant to the illegal contract.26

IV.  Tort Law

50.12  In certain instances restitution of performances rendered may also be based on tort law. This is primarily conceivable where one party acted fraudulently and thus committed a tort. (p. 782) Furthermore, under English law where title has not passed to the buyer there may be a tort claim for wrongful interference with goods.27

V.  Contractual Regime

50.13  Modern tendencies clearly suggest that the unwinding of a contract following avoidance28 should be conceived to be contractual in nature. The original contract is deemed to be converted to a (contractual) relationship with reversed obligations—the seller being obliged to repay the purchase price, the buyer to re-deliver the goods received under the avoided contract. This position is now being advocated in Germany and Switzerland.29 It is also the basis of uniform law and projects, as they are only concerned with the contractual rights and obligations of the parties and the unwinding itself is dealt with under these very provisions and not under any heading of unjust enrichment or the like.30

50.14  The question whether restitution is based on unjust enrichment or is contractual in nature becomes especially relevant where legal systems have different limitation periods for the respective regimes.31

C.  Effects of Contract Coming to an End

I.  Discharge of Primary Obligations

50.15  If the contract comes to an end, first of all both parties are discharged from their primary obligations under the contract. The seller does not have to deliver the goods and convey property any more; the buyer does not have to pay the purchase price nor take delivery of the goods.32

II.  Effect on Damages Claims

50.16  Whether a claim for damages that arose before the contract came to an end survives is largely dependent on the stance taken by a legal system towards the retrospective or prospective nature of avoidance.

50.17  Under the traditional civil law view according to which avoidance operates retroactively, alongside the restitution of performances rendered there may be a damages claim for reliance interest only but not for expectation interest.33 The idea is that damages in the amount of the expectation interest can only be asked for if there is (still) a valid contract. There are, however, more and more exceptions to this rule in civil law legal systems acknowledging that although the contract has come to an end there may still be a claim in the amount of the expectation interest.34

(p. 783) 50.18  Where avoidance operates prospectively, any damages claims having accrued before avoidance remain untouched. Uniform law and projects now contain explicit provisions to this effect.35

III.  Contract Provisions Not Affected by Avoidance

50.19  It is nowadays unanimously held in the overwhelming majority of legal systems that although the contract has come to an end there may be certain provisions of the contract that are designed to govern the rights and obligations of the parties after or notwithstanding avoidance which survive such termination.36

50.20  This applies especially to dispute settlement clauses such as arbitration clauses and choice-of-forum clauses in particular. Thus if there is an arbitration clause in the contract it is up to the arbitral tribunal to decide whether the contract has been avoided in the first place and what the respective consequences are in the second. This is in line with the prevailing view in international arbitration law, as well as in conflicts of law, that an arbitration agreement or a choice-of-forum clause must be viewed separately from the main contract.

50.21  It is also true for clauses that exactly envisage providing for the details for the unwinding of the contract. Whether other clauses survive is primarily a question of the interpretation of the respective clause.37 Normally choice-of-law clauses, agreed sums, force majeure clauses, as well as exclusion and limitation-of-liability clauses should survive the avoidance of the contract. Confidentiality clauses might also survive avoidance if an according intention of the parties can be established.

IV.  Restitution of Performance Received

1.  General

50.22  Most legal systems recognize the general obligation of both parties to make restitution of whatever they have received from the other party under the contract notwithstanding the legal nature of the claim, be it proprietary, based on unjust enrichment, or contractual in nature.

50.23  A notable exception can be found in common law jurisdictions still applying traditional common law rules. Although the doctrine of frustration can provide exemption for parties,38 the doctrine, as it exists at common law, does not require or seemingly permit restitution of partial performance. It was not until the famous 1943 House of Lords’ decision in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd 39 that restitution was allowed where a total failure of consideration arose as a result of performance that had been carried out on a basis that had wholly failed.40 These possibly unfair results prompted the enactment of the Law Reform (Frustrated Contracts) Act (1943). Partial payment may be reclaimed as money had and received without a total failure of consideration needing to be established. Likewise it is possible to claim compensation for non-monetary performances if there has been a valuable benefit. Thereby the judge enjoys wide discretion. However, the Act does not apply to cases where a contract for the sale of specific goods which have perished before the risk of loss has passed to the buyer is avoided according to the Sale of Goods Act 1979.41 This means that, if (p. 784) risk of loss has not yet passed to the buyer upon the conclusion of the contract, in these cases the all-or-nothing approach laid down in Fibrosa still applies. If, however, frustration can be found on other grounds than the perishing of the goods the Law Reform (Frustrated Contracts) Act (1943) governs the case. Numerous other common law jurisdictions now have equivalent or similar frustrated contracts Acts. It is important to note however that their specific application to sale of goods cases may differ.42

2.  Restitution of Purchase Price

50.24  Except for English law and those countries following the English model, legal systems agree that if money has been paid before the date of avoidance of the contract the buyer may recover what has been paid.43 It does not matter which party has been responsible for the avoidance of the contract, be it the seller or the buyer itself.

50.25  Repayment must be made in the same amount and in the same currency in which the purchase price had to be paid according to the contract, irrespective of any possible currency fluctuations that took place in the meantime.44

50.26  As the recipient is obliged to restore any fruits of the performance received it has to pay interest on the purchase price from the date when payment had been made.45 In domestic sales contracts it is not difficult to find the applicable rate of interest as this is the same for all sums on which interest is due. This is different in international contracts. As has been shown46 there is considerable controversy about how to find the appropriate interest rate. However, where interest is due as a form of fruits arising from the purchase price upon unwinding of the contract, the seller’s duty to pay interest can be seen as being based on the irrebuttable presumption that the seller has invested the money in an interest-bearing account or has benefited from the money in some other way.47 Thus the commercial investment rate current at the seller’s place of (p. 785) business should usually be applied.48 This interest rate is different from the one that applies to sums with which the debtor is in arrears.49 Thus two interest rates may apply when the seller has to repay the purchase price; the first one from the time when the seller received the purchase price until the date when restitution is due and the second one from the date when restitution is due to the date of actual repayment.

3.  Restitution of the Goods

(a)  General

50.27  In common law legal systems the seller may generally not recover the goods that have been delivered following the buyer’s breach of contract. Rather, the seller is confined to claiming the outstanding purchase price.50 Recovery of the goods can only be based on the buyer having acted fraudulently or upon the seller having some security interest in the goods.

50.28  In contrast, in civil law legal systems upon avoidance of the contract the seller may reclaim the goods that have been delivered.51 Uniform law and projects also follow this approach.52 Primarily, restitution must be in kind. Depending on whether upon the avoidance of the contract property automatically falls back on the seller53 the claim is either proprietary or only obligational in nature.

50.29  The duty to restore the property as between buyer and seller must not be confused with the question of whether a third party—a creditor of the buyer or a bona fide purchaser of the goods—may oppose the restitution of the goods sold. This is a question that is governed by the applicable rules on property or insolvency law.

(b)  Restitution of Fruits

50.30  Alongside the restitution of goods, the buyer is often obliged to make restitution of any benefits it has derived from the goods.54 This encompasses natural and legal fruits of the goods and also benefits arising from the use of the goods. However, these (p. 786) benefits should only be net benefits after the costs of using or enjoying the goods have been taken into account.55

(c)  Deterioration of the Goods

50.31  Legal systems differ in answering the question what happens if the goods have been destroyed or deteriorated.

50.32  The traditional starting point is that the buyer is barred from avoiding the contract if it is impossible to make restitution of the goods substantially in the condition in which it received them.56 This does not apply if the deterioration or loss of the goods cannot be imputed to the buyer.57 Where the seller avoids the contract or deterioration or loss of the goods happens after the buyer has avoided the contract, the buyer must compensate the seller according to the general principles on liability for damages.58

50.33  Under the modern approach59 deterioration or loss of the goods does not bar avoidance by the buyer. Instead, the buyer is bound to pay for the value of the goods that have been received. This again does not apply if the impossibility of making restitution in kind is not attributable to the buyer.

4.  Concurrent Restitution

50.34  Where both parties have to make restitution it is widely held that restitution has to be made concurrently.60 The requirement of concurrent restitution protects each party especially in cases where restitution by the other party is prevented by rules on bankruptcy or by lack of means to compensate for the value of benefits received.

5.  Place, Costs, and Time of Restitution

50.35  In most legal systems there are no special rules relating to place, costs, and time of restitution. Thus the general rules apply.

50.36  If the unwinding of the contract is perceived as a (contractual) relationship with reversed obligations, this regime may also be used to determine the questions arising in relation to the unwinding.61 However, especially when it comes to the costs of unwinding, due regard must be given to which party was responsible for the contract being avoided.62 The unexempted party has to bear the costs of unwinding as part of its liability for damages.

Footnotes:

1  See Ch 16.

2  See Ch 13.

3  See Ch 18.

4  See Ch 22.

5  See Ch 20.

6  See para 17.38.

7  See Ch 47.

8  See paras 15.04 et seq.

9  See Chs 19 and 20.

10  See Art III.-3:509 note 2 DCFR.

11  Muñoz, p 505; Bol Art 574 (I) CC; Bra Gomes, p 210; Chl Díez Duarte, p 176; Esp Medina de Lemus, II, vol I, p 173; Per Castillo Freyre, p 162; Prt Art 434 (1)CC; Pry Art 729 CC; Ven Aguilar Gorrondona, p 275.

12  Hafez, p 382; Are Art 274 Federal CC; FHC, challenge no 755, 22 June 2005, JY 24, UAEUP, MJ, third ed, year 27, 2005; FHC, challenge no 755, 15 April 2003, JY 22, UAEUP, MJ, second ed, year 25, 2003, p 875; FHC, challenge no 420, 29 April 2001, JY 20, UAEUP, MJ, second ed, year 23, 2001, p 878; FHC, challenge no 180, 26 January 1993, JY 14, TO 15, p 180; Bhr Art 142(1) CC; Dza Art 122 CC; Egy Art 160 CC; Art 180 CC; Jor Art 248 CC; Kwt Art 211(1) CC; Lbn Arts 239, 240 CO; Lby Art 162 CC; Qat Art 185 CC; Syr Art 161 CC.

13  Jpn Art 545 CC; Han/Shitamori, p 209; Khm Art 411 CC; Kor Art 548 CC; Mac Art 428 CC; Mng Art 205 CC; Tha Art 391 CCC; Twn Arts 259, 263 CC, Zheng, p 335; Vnm Art 425 (3) CC. In Chn the question is unsettled, see Han/Shitamori, p 262 (ex tunc); Han, Contract Law, pp 466–83 (ex nunc). The dispute is however of little significance since the consequences of avoidance with regard to sales law are laid down in Art 97 PRC CL, see Hafez, p 384

14  Arm Art 469 CC; Aze Art 424 CC; Blr Art 423 CC; Kaz Art 403 CC; Kgz Art 414 CC; Rus Art 453 CC; Tjk Art 485 CC; Ukr Art 653 CC; Uzb Art 385 CC.

16  See Aus (Vic) s 3(1) Frustrated Contracts Act (1959); Eng s 1(1) Law Reform (Frustrated Contracts) Act (1943); Nir s 1(1) Law Reform (Frustrated Contracts) Act (1943); Sco s 1(1) Law Reform (Frustrated Contracts) Act (1943); Sgp s 2(1) Frustrated Contracts Act (1959); Wal s 1(1) Law Reform (Frustrated Contracts) Act (1943).

17  See Art 81(1) CISG; Art 7.3.5(1) PICC; Art 9:305(1) PECL; Art III.-3:509(1) DCFR.

19  See paras 39.15 et seq.

20  See Eng Benjamin’s Sale of Goods, para 12-066 (seemingly also applicable to the other common law jurisdictions following the English model). The explanation used to explain this solution is that property only passed conditionally in the first place.

21  See paras 47.32 et seq.

22  Common Law (UK) Chitty on Contracts, para 29-151.

23  Common Law (UK) Chitty on Contracts, para 29-015 citing authorities from Aus, Can, Eng, USA, and Sco.

24  See for restitution paras 20.33 et seq.

25  See Common Law (UK) Chitty on Contracts, para 29-004.

26  See Aut Rummel/Rummel, § 877 para 2, 3; Che Art 66 CO; Deu § 817 sentence 2 CC; Eng (UK) Benjamin’s Sale of Goods, para 3-031; Esp Arts 1305, 1306 CC; Fra Civ, 15 December 1873, S 1874.I.241; USA Design Development, Inc v Brignole, Conn Ct App, 20 February 1990, 570 A 2d 221, 223.

27  See Eng Torts (Interference with Goods) Act (1977); Wal Torts (Interference with Goods) Act (1977).

28  Avoidance in its broad sense as it is understood in Ch 47.

30  See Arts 81, 84 CISG; Arts 7.3.5–7.3.7 PICC; Arts 9:305–9:309 PECL; Arts III.-3:509–III.-3:514 DCFR.

31  See eg Che Art 67(1) CO (unjust enrichment: 1/10 years), Art 127 CO (contractual claims: 10 years).

32  Art 81(1) sentence 1 CISG; Art 7.3.5(1) PICC; Art 9:305(1) PECL; Art III.-3:509(1) DCFR; OHADA Art 282 AUDCG; Eastern Europe/Central Asia Lapiashvili, p 334; Common Law (UK) Chitty on Contracts, para 6-106 (distinguishing effects of rescission and avoidance); Arm Art 469 CC; Aze Art 424 CC; Blr Art 423 CC; Deu BGH, 15 March 2002, BGHZ 150, 187, 197, MünchKommBGB/Gaier, § 346 para 15, Staudinger/Kaiser, § 346, para 65; Kaz Art 403 CC; Kgz Art 414 CC; Rus Art 453 CC; Tjk Art 485 CC; Ukr Art 653 CC; Uzb Art 385 CC; USA § 2-106(3) UCC.

33  See eg Che Art 109(2) CO.

34  See Aut § 921 CC; Koziol et al/P Bydlinski, § 918, para 19; Cze Art 351(1) Com C; Esp Supreme Court, 4 February 2003, RAJ 2003/846, Supreme Court, 17 November 2000, RAJ 2000/9343. For further references see Art III.-3:509 note 10 DCFR.

35  See Art 81(1) sentence 1 CISG; Art 7.3.5(2) PICC; Art 9:305(1) PECL; Art III.-3:509(3) DCFR.

36  See Art 81(1) sentence 2 CISG; Art 7.3.5(3) PICC; Art 9:305(2) PECL; Art III.-3:509(2) DCFR; Common Law (UK) Chitty on Contracts, para 6-106; Cze Art 351 Com C; Est § 188(3) CO; Fra Art 2061 CCP; Ita Cass, 5 August 1968, no 2803, Foro it 1969, I c 445; Cass, 27 May 1981, no 3474, Foro it 1982, I c 199; Nld Art 6:271 CC; Prt Art 434(1) CC. As regards domestic legal systems see also references in Art III.-3:509 note 11 DCFR.

37  For details see CISG-AC, Op 9 (Bridge), Comment 3.3.

38  See paras 45.25 et seq, 47.32 et seq.

39  [1943] AC 32.

41  Eng s 2(5)(c) Law Reform (Frustrated Contracts) Act 1943.

42  See eg Can (BC) s 1(b) Frustrated Contract Act (1996) which unlike similar statutes in other jurisdictions expressly applies to the sale of specific goods which have perished before the risk of loss has passed to the buyer.

43  See Art 81(2) sentence 1 CISG; Art 7.3.6(1) PICC; Art 9:307 PECL; Art III.-3:510(2) DCFR; OHADA Art 297 AUDCG; Arabic/Middle East Hafez, p 384; East Asia SJ Yang, p 386; Ibero-America Muñoz, p 507; Arg Art 1420 CC; Arm Art 491 CC; Aut §§ 921, 1435 CC; OGH, 21 December 2005, 7Ob286/05t; Aze Art 587 CC; Blr Art 445 CC; Chl Art 1875(2) CC; Chn Han Shiyuan, p 478; Col Art 1932(2) CC; Cri Art 457 Com C; Deu MünchKommBGB/Gaier, § 346, para 17; Ecu Art 1842(2) CC; Esp Art 1295 sentence 1 CC; Fra Arts 1376, 1377 CC; Geo Art 352 CC; Jpn Art 545 (2) CC; Kaz Art 428 CC; Kgz Art 438 CC; Khm Art 411(3) CC; Kor Art 548(2) CC; Ltu Art 6.222 CC; Ltv Art 1622 CC; Mex Art 2311 CC; Mng Art 205(1) CC; Per Art 1236 CC; Pol Art 560 CC; Rus Art 475 CC; Slv Art 1677(2) CC; Tha Art 391 CCC; Tjk Art 511 CC; Twn Art 259(2) CC; Zheng, p 337; Ukr Art 678 CC; Uzb Art 408 CC; Ven Art 1.499 CC; Vnm Art 425(3) CC, Aguilar Gorrondona, p 275.

45  Art 84(1) CISG; Art 9:508 PECL; Art III.-3:510(5) DCFR (interest is perceived as fruits); Alb Art 656 CC; Arg Art 1420 CC; Arm Art 1097 CC; Aze Art 1094 CC; Bhr Art 188 CC; Blr Art 976 CC; Bra Gomes, p 210; ICC Final Award Case no 13530 Lex Contractus Brazilian Law; Chn Han, Contract Law p 478; Col Art 942 Com C; Deu Staudinger/Kaiser, § 346, para 222; Dza Art 147 CC; Egy Art 185 CC; Esp Art 1295 sentence 1 CC; Geo Arts 352, 981 CC; Jpn Art 545(2) CC; Kaz Art 958 CC; Kgz Art 1034 CC; Khm Art 411(3) CC; Kor Art 548(2) CC; Kwt Art 288 CC; Lby Art 188 CC; Ltu Art 6.240 CC; Ltv Arts 1623, 1624 CC; Mex Art 2311 CC; Supreme Court, Novena Época, Primera Sala, Registry 189,166, SJF XIV, August 2001, at 170; Mng Art 205(1) CC; Per Arts 1556, 1512(2) CC; Qat Art 226 CC; Rus Art 1107 CC; Slv Miranda, De la Compraventa, p 286; Srb Art 132 CC; Syr Art 186 CC; Tha Art 391 CCC; Tjk Art 1122 CC; Twn Art 259(2) CC; Zheng, p 337; Ukr Art 1214 CC; Uzb Art 1028 CC; Ven Aguilar Gorrondona, p 275; Vnm Art 425(3) CC; Yem Arts 320, 321 CC. The PICC do not provide for interest, see Art 7.3.6, Comment 6 PICC.

46  See paras 46.79 et seq.

47  See CISG-AC, Op 9 (Bridge), Comment 3.25.

48  See CISG-AC, Op 9 (Bridge), Rule 3.4.

49  Art 78 CISG; see paras 46.109 et seq.

50  See eg Aus (Vic) s 55(1) SGA; Can (BC) s 52(1) SGA; Eng s 49(1) SGA; Hkg s 51(1) SGO; Ind s 55(1) SGA; Irl s 49(1) SGA; Mys s 55(1) SGA; Nzl s 50(1) SGA; Sco s 49(1) SGA; Sgp s 49(1) SGA; Wal s 49(1) SGA. But see USA § 2-702 UCC (recovery within 10 days when buyer has received goods on credit while insolvent).

51  OHADA Art 297 AUDCG; Arabic/Middle East Hafez, p 384; Alb Art 656 CC; Arg Art 1420 CC; Arm Art 1094 CC; Aut §§ 921, 1435 CC, OGH, 21 December 2005, 7Ob286/05t; Aze Art 1092 CC; Bhr COC, challenge no 98, 7 December 1997, TO, year 8, 1997, p 588; Bel Art 1379 CC; Blr Art 973 CC; Chl Art 1875(2) CC; Chn Han, p 478; Col Art 1932(2) CC; Cri Art 457 Com C; Cze Arts 457, 458(1) CC; Deu Staudinger/Kaiser, § 346, para 70; Dza Filaly, Al Nazria Al Ama Lil Aqd, p 355; Ecu Art 1842(2) CC; Egy Al Sanhuri/Al Maraghy, p 286; Esp Art 1295 sentence 1 CC; Est § 189(1) CO; Fin s 64(2) SGA; Geo Art 979 CC; Fra Art 1379 CC; Ita Arts 1458(2), 1493(2) CC; Jor Mansour, p 213; Jpn Art 545(1) CC; Kaz Art 955 CC; Kgz Art 1031 CC; Khm Art 411(2) CC; Kor Art 548(1) CC; Kwt COC, 8 November 2004, Civ Cir, JLJ, TO, JY 32, part 3, p 353; HCA, challenges no 48 and 50, 2 May 1988, Cassation Circuit, Civil, Book no 16, p 357; Ltu Art 6.237 CC; Mex Art 2311 CC; Mng Art 205(1) CC; Per Art 1236 CC; Prt Arts 433, 289(1) CC; Rus Art 1104 CC; Slv Art 1677(2) CC; Svn Art 111(2) CC; Swe s 64(2) SGA; Tha Art 391(1) CCC; Tjk Art 1119 CC; Twn Art 259(1) CC, Zheng, p 337; Ukr Art 1213 CC; Uzb Art 1025 CC; Ven Art 1.499 CC; Aguilar Gorrondona, p 275; Vnm Art 425(3) CC.

52  See Art 81(2) sentence 1 CISG; Art 7.3.6(1) PICC; Art 9:308 PECL; Art III.-3:510(1) DCFR.

53  See para 50.07.

54  See Art 84(2) CISG; Arts III.-3:510, III.-3:513(1) DCFR; OHADA Art 300(2) AUDCG; Shari’a (Egy, Irq, Lbn, Syr), Basha, p 389; Alb Art 656 CC; Arg Arts 1052, 1054, 1420 CC, Borda, p 243; Arm Art 1097 CC; Aze Art 1094 CC; Blr Art 976 CC; Bol Arts 637, 83(III), 84 CC; Bra Gomes, p 210; Chl Art 1875(1) CC, Díez Duarte, p 176; Chn Han Shiyuan, p 478; Col Art 1932(1) CC; Deu MünchKommBGB/Gaier, § 346, para 23; Dza Filaly, p 355; Ecu Art 1842(1) CC; Egy Al Sanhuri/Al Maraghy, p 286; Esp Art 1295 CC; Geo Arts 352, 981CC; Kaz Art 958 CC; Kgz Art 1034 CC; Khm Art 411(3) CC; Lbn Art 454 CO; Ltu Art 6.240 CC; Ltv Arts 1623, 1624 CC; Mex Art 2311 CC; Mng Art 205(1) CC; Per Art 1563 CC; Castillo Freyre, p 163; Pry Art 751 CC; Rus Art 1107 CC; Slv Art 1677(1) CC; Srb Art 132 CC; Tjk Art 1122 CC; Twn Art 259(3), (4) CC; Ukr Art 1214 CC; Uzb Art 1028 CC; Ven Art 1563(1) CC.

55  See CISG-AC, Op 9 (Bridge), Comment 3.28. See also Twn Art 259(5) CC; Mng Art 205(6) CC.

56  See Art 82(1) CISG; Che Art 207(3) CO; Est §§ 189(4), 190(1) CO; Jpn Art 548(1) CC; Khm Art 412(1) CC; Kor Art 553 CC; Mda Art 770 CC; Svn Art 475(2), (3) CO; Twn Art 262 CC; Tha Art 394(1) CCC.

57  See Art 82(2) CISG; Che Art 207(1) CO; Est §§ 189(4), 190(1) CO; Jpn Art 548(2) CC; Mda Art 770 CC; Svn Art 475(2), (3) CO; Tha Art 394(2) CCC.

58  See eg Are Art 274 CC; Bhr Art 142(2) CC; Dza Art 122 CC; Egy Art 160 CC; Irq Art 180 CC; Jor Art 248 CC; Kwt Art 211(2) CC; Lbn Art 243 CO; Lby Art 162 CC; Qat Art 185 CC; Syr Art 161 CC.

59  See Art 7.3.6(2)(3) PICC; Art 9:309 PECL; Alb Art 656 CC; Arm Art 1095 CC; Aze Art 1092 CC; Blr Art 974 CC; Bol Art 969(III) CC; Cze Art 458 (1) CC; Deu § 346(2) sentence 1 CC; Est § 189(2) CO; Geo Arts 352, 979 CC; Kaz Art 956 CC; Kgz Art 1032 CC; Ltv Art 1623 CC; Ltu Arts 6.222, 6.237 CC; Mda Art 738 CC; Per Castillo Freyre, p 162; Rus Art 1105 CC; Tjk Art 1120 CC; Ukr Art 1213 CC; Uzb Art 1026 CC.

60  See Art 81(2) sentence 2 CISG; Art 7.3.6(1) PICC; Art III.-3:510(1) sentence 2 DCFR; Ibero-America Muñoz, pp 506ff; Deu § 348 CC.

61  See for the CISG, Schlechtriem/Schwenzer/Fountoulakis, Art 81 para 26; Deu Staudinger/Kaiser, § 346, para 81 (for contractual rights to avoid the contract).

62  See CISG-AC, Op 9 (Bridge), Comment, para 3.16.