Non-conformity of Goods as a Ground for Avoidance of Contract or Specific Performance under the Vienna Convention on Contracts for the International Sale of Goods

The creation of the The United Nations Convention on Contracts for the Sale of Goods of 1980 (CISG). was dictated by the historical need for a legal text regulating international commercial activities. With the increasing effect of globalization and the trading opportunities that came along with it the cross-border trading of goods inevitably became more and more regular. Along with that, new legal obstacles arose, which required for a globally acceptable set of rules facilitating sales transactions that is now known as The United Nations Convention on Contracts for the Sale of Goods of 1980 (CISG). While there are, undoubtedly, many different aspects of international trade covered by the CISG, up to this day, one of the main grounds for contention in trading is the conformity of goods. The CISG, being a uniform legal instrument, combined and adopted the approaches to the non-conformity issue from various legal systems . Thus, while it may be not true for some jurisdictions, it considers certain defects (e.g. wrongful packaging) sufficient to deem the goods unfit. The vast majority of cases, where the goods are deemed to be non-conforming, in one way or another, include a request for some type of a monetary compensation. The reason behind this phenomenon is that it is usually more economically justified to pay the costs associated with certain discrepancies when compared to the available non-monetary remedies. Since it relieves the parties from the burden to bear additional shipping costs (sometimes to deliver goods across the ocean), pay extra tariffs and, in the end, prevents worsening or even ending the business relationships between them. However, the thesis will focus on the rather exceptional instances where the non-monetary remedies, despite the potential inconveniences that come along with them, prevail over their monetary counterparts. The CISG distinguishes two types of the aforementioned remedies which are the avoidance of contract and specific performance. In the case of contractual avoidance, the contract is being terminated and the parties are deprived of their rights and obligations that come along with it. In the case of specific performance, the party in breach is ordered to go through with its obligations. While the correlation between the conformity requirements and the two aforementioned remedies is never doubted there is no centralized research on the issue. Most of the times it is either that some of the available remedies are merely mentioned in books and articles on the conformity requirements or certain types of non-conformities are brought up when describing a particular remedy. That is why the main goal of the paper would be to accumulate the available information concerning the correlation between the goods’ conformity requirements and the non-monetary remedies available under the 1980 Vienna Convention and to identify certain patterns from the gathered data. Additional objectives would include the need for providing a detailed analysis for each conformity requirement as well as for both of the remedies and uncovering some of their more debatable aspects in the process. The thesis will start with the general information on what goods the CISG deems “conforming” and describe the requirements for meeting this standard. Afterwards, the paper will provide background information on each of the non-monetary remedies and will deepen into their correlation with the particular types of non-conformities described in the Convention.