The legal remedies available to a seller in case of a buyer's breach of contract on international sale of goods are predominantly contained in Articles 61-65 of the UN Convention on Contracts for the International Sale of Goods (CISG). Article 62 of the CISG entitles the seller to require from the buyer to perform the obligations. Under Article 63 of the CISG, the seller may fix an additional period of time of reasonable length for the performance of the buyer's obligations. Article 64 defines the conditions under which the seller is entitled to declare the contract avoided. The first situation in which the seller can avoid the contract is where the buyer has committed a fundamental breach of contract. Article 64 also provides that the seller can avoid the contract if the buyer has not paid the price or taken delivery of the goods within the additional period of time fixed by the seller under Article 63(1) of the CISG. In case the buyer has paid the price, the seller loses the right to avoid the contract if it does not declare avoidance within the periods stated in Article 64(2). In cases of late performance, the seller loses the right to declare the contract avoided unless it does so before becoming aware that performance has been rendered. In regard to any breach other than late performance, there is a distinction according to whether or not the seller has fixed an additional period for performance in accordance with Article 63 (1). In the absence of an additional period for performance, the seller loses the right to declare the contract avoided unless it declares avoidance within a reasonable time after the seller knew or ought to have known of the breach. In case the seller has fixed an additional period of time for performance by the buyer, the seller loses the right to declare the contract avoided unless it declares avoidance within a reasonable time after the expiry of the additional period fixed by the seller or after the buyer has declared that it will not perform his obligations within such an additional period. Finally, under Article 65 of the CSIG, if the buyer fails to make the specification of the goods, either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him.
The fundamental breach of contract is defined in Article 25 of the UN Convention on Contracts for the International Sale of Goods (CISG), which states: "A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result." When a fundamental breach of contract occurs, the deprived party (seller or buyer) has a right to avoid a contract. Avoidance of contract is the last resort remedy applicable in case other remedies are ineffective. Pursuant to Article 25 of the CISG, there are two criteria which must be fulfilled for a fundamental breach of contract to exist. The first criterion is objective; it comprises two conditions: a) there is a breach of obligation defined in the contract or in the CISG; and b) such a breach substantially deprives the other party of what the party is entitled to expect under the contract. The second criterion is subjective: the breaching party has to foresee such a result. Although this criterion is essentially subjective, it contains an objective element, embodied in the use of the reasonable person standard. Hence, even when the breaching party has not foreseen substantial deprivation of the other party as a result of breach, a substantial breach of contract will be deemed to exist if a reasonable person of the same kind in the same circumstances could have foreseen such a result.
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