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Buyer's self-repair of non-conforming goods versus seller's right to cure under Article 48 of the CISG

Maier-Lohmann, Till Steffen. (2019) Buyer's self-repair of non-conforming goods versus seller's right to cure under Article 48 of the CISG. Uniform Law Review, 24 (1). pp. 58-72.

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Official URL: https://edoc.unibas.ch/70818/

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Abstract

A seller delivers non-conforming goods. Can the buyer, after notifying the seller of the defect, immediately repair the goods and claim the cost from the seller? The majority of scholars and courts in the German-speaking regions seem to prioritize the seller's right to cure pursuant to Article 48(1) of the United Nations Convention on Contracts for the International Sale of Goods (CISG). They deny a claim for damages by the buyer, if the seller could have still cured the defect in accordance with this provision. This article illustrates the legal background in Germany against which this interpretation of the CISG might be explained, while exploring the (divergent) understanding of the right to cure in the USA. The author proposes an alternative interpretation of the CISG that generally allows for a damages claim by the buyer and concentrates on whether the buyer has mitigated the damage pursuant to Article 77 of the CISG by repairing the goods. Based on these insights, it is furthermore argued that a seller's duty to notify the buyer of his intention to cure under the CISG, as accepted by the German Federal Supreme Court in 2014, poses a risk to a uniform application of the Convention and should be rejected.
Faculties and Departments:02 Faculty of Law > Departement Rechtswissenschaften > Fachbereich Privatrecht > Professur Privatrecht (Schroeter)
UniBasel Contributors:Maier-Lohmann, Till Steffen
Item Type:Article, refereed
Article Subtype:Research Article
Publisher:Oxford University Press
ISSN:1124-3694
e-ISSN:2050-9065
Note:Publication type according to Uni Basel Research Database: Journal article
Identification Number:
Last Modified:20 Jun 2019 14:24
Deposited On:20 Jun 2019 14:24

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