My OperaHow do we decide if the seller's remedy offer is "unreasonable". CISG article 48.
Tuesday, July 8, 2008 12:01:00 PM
In the latest days posts we have discovered that "unreasonable" is a crucial word in CISG article 48; «unreasonable delay»; «unreasonable inconvenience». The buyer will not have to accept the seller's offer to remedy by repair or substitute goods if the offer, all facts taken into consideration, is unreasonable.
In these considerations it is important to evaluate how well the seller's remedy offer meets the criteria in CISG article 48 (1):
These three conditions must be met by the seller's offer;
1) «Without unreasonable delay»,
2) Without «unreasonable inconvenience» for the buyer, and
3) Without «uncertainty of reimbursement by the seller of expenses advanced by the buyer».
Conditions 1 and 2 mainly require a consideration of the term «unreasonable»: What is an «unreasonable delay»? What is an «unreasonable inconvenience»? These questions must be answered based on a consideration of the circumstances in each particular case.
These two conditions are also interfering with each other: If a long period of time elapses before a remedy is provided by the seller, it will be much easier for the buyer to claim that he has suffered an unreasonable inconvenience. The buyer’s problems may be so serious that the conditions in article 25 are met, giving him the right to declare the contract avoided according to article 49. An important part of this consideration is how badly the buyer’s interests are hurt. Unreasonable inconvenience for the buyer will easily be the case if the seller’s breach of contract leads to a hold in the buyer’s business, even if the seller paying damages may cover the buyer’s loss.
And the other way around; Substantial inconvenience coupled with short delay: Even if the lack of conformity is severe, as long as the seller supplies quick expert help and rapidly manages to address the severe problems successfully, the remedying may be accepted.
Condition 3 above says that the buyer is not obliged to accept the seller’s remedying offer if the buyer has to pay for expenses in advance, for transport of the goods for instance, and the circumstances indicates that the seller will not be willing or able to reimburse the buyer with these expenses.
In these considerations it is important to evaluate how well the seller's remedy offer meets the criteria in CISG article 48 (1):
These three conditions must be met by the seller's offer;
1) «Without unreasonable delay»,
2) Without «unreasonable inconvenience» for the buyer, and
3) Without «uncertainty of reimbursement by the seller of expenses advanced by the buyer».
Conditions 1 and 2 mainly require a consideration of the term «unreasonable»: What is an «unreasonable delay»? What is an «unreasonable inconvenience»? These questions must be answered based on a consideration of the circumstances in each particular case.
These two conditions are also interfering with each other: If a long period of time elapses before a remedy is provided by the seller, it will be much easier for the buyer to claim that he has suffered an unreasonable inconvenience. The buyer’s problems may be so serious that the conditions in article 25 are met, giving him the right to declare the contract avoided according to article 49. An important part of this consideration is how badly the buyer’s interests are hurt. Unreasonable inconvenience for the buyer will easily be the case if the seller’s breach of contract leads to a hold in the buyer’s business, even if the seller paying damages may cover the buyer’s loss.
And the other way around; Substantial inconvenience coupled with short delay: Even if the lack of conformity is severe, as long as the seller supplies quick expert help and rapidly manages to address the severe problems successfully, the remedying may be accepted.
Condition 3 above says that the buyer is not obliged to accept the seller’s remedying offer if the buyer has to pay for expenses in advance, for transport of the goods for instance, and the circumstances indicates that the seller will not be willing or able to reimburse the buyer with these expenses.
