Damages for the Cost of Repair and the Seller’s Right to Cure in International Sales Contracts

Abstract

The article focuses on whether, in the case of a breach of a sales contract, the buyer can remedy the non-conformity of the goods independently and claim damages for the cost of repair without giving the seller an opportunity to cure his failure to perform. The analysis is based on the solutions adopted in the United Nations Convention on Contracts for the International Sale of Goods. The issue has recently given rise to divergent approaches in the literature. The article seeks to shed new light on the problem and offers a way of resolving the question of the interplay between the seller’s right to cure and the buyer’s right to claim damages for the cost of repair. The principal conclusion is that the buyer’s right to claim damages for the cost of repair and the seller’s right to cure do not stand on an equal footing. Rather, the seller’s right to cure has priority over the buyer’s damages claim. As long as the seller is entitled to remedy his failure to perform under the Convention, the buyer cannot cure the non-conformity independently. If he does so, he cannot claim compensation for the costs incurred as a result of the repair.