Christoph J.H. 1.

Despite its paramount importance within the CISG's system of

Brunner; Benjamin buyer's remedies, case law on Art. 46 (and the corresponding
Gottlieb provision in Art. 62 on the seller's right to require performance)
Commentary on is sparse. In practice, the parties often prefer to raise other
the UN Sales remedies, particularly the claim for damages pursuant to Art.
Law (CISG) 45(1)(b) and Arts. 74–77. p.344
(Kluwer Law 2. The buyer's claim for performance in this case depends on
International 2019) certain additional prerequisites and, if those are met, consists in
a claim for delivery of substitute goods or for repair. The claim
for delivery of substitute goods (Art. 46(2)) requires a
fundamental breach of contract (Art. 25) and the possibility for
the buyer to return the goods to the seller substantially
unchanged (Art. 82(1); but see the exceptions in Art.82(2)).
The claim for repair (Art. 46(3)) is given only if repair is
reasonable for the seller, taking into account all relevant
circumstances. Additionally, both remedies are only available
when the buyer has notified the seller of the lack of conformity
in a timely and proper manner (Art. 39) and requires delivery of
substitute goods or repair either with the initial notice or within
a reasonable time thereafter. P.344-345
3. The claim for performance, or subsequent performance, is
inconsistent with the remedies of avoidance of the contract,
reduction of the purchase price, and damages arising from non-
performance (i.e. expectation damages), if these remedies have
already been asserted.p.347
4. Article 48(1) grants the seller, subject to certain conditions, a
right to remedy, at his own expense, any failure to perform
obligations even after the time for delivery. The seller is free to
choose the means of remedy. By exercising the right to
subsequent performance, the seller can exclude any remedy of
the buyer that is inconsistent with the remedy chosen by the
seller p.347
the buyer may raise a claim for delivery of substitute goods if the
following prerequisites are met:
(1) The seller has actually delivered the goods, but they are non-
conforming pursuant to Art. 35
(2) The contract is for the sale of unascertained goods, i.e. generic
goods, and the delivery of other goods of the same type remains
possible, 14). According to the prevailing view, a claim for delivery of
substitute goods is in principle excluded when the parties have entered
into a contract for the sale of specific goods. 1917
(3) The non-conformity must amount to a fundamental breach of
contract under Art. 25, If the seller is prepared to repair the goods, and
the repair is reasonable for the buyer (cf. Art. 48), no fundamental
breach of contract exists, and the buyer is left with the claim for repair.
[Schlechtriem/Schwenzer/Müller-Chen, Art. 46 para. 26;
Staudinger/Magnus, Art.46 para. 40.] p.350
(4) The request for substitute goods must be made either with the
notice of non-conformity pursuant to Art. 39 or within a reasonable
period of time thereafter.
(5) The right to require substitute delivery is only available if it is
possible for the buyer to return the initially-delivered goods p.350-351
 5. is not likely to exist where the defects are repairable. Moreover,
the seller's right to subsequent performance under Art. 48
supersedes the buyer's right to choose among the available
remedies. If the buyer requests the delivery of substitute goods,
the seller can avoid this request by making repairs if this is
reasonable for the buyer.
Conversely, the seller may deliver substitute goods under the
prerequisites of Art. 48(1) even if the buyer has no right to request
substitute goods pursuant to Art. 46, or if the buyer has chosen to
request repair. P.352

the buyer may raise a claim for repair if the following prerequisites are
met:
(1) The seller has actually delivered the goods, but they are non-
conforming pursuant to Art. 35. Repair is possible both for goods
sold by a generic description and specific goods. Unlike the claim
for delivery of substitute goods pursuant to Art. 46(2), the claim
for repair does not require a fundamental breach of contract. In any
case, a fundamental breach is not likely to exist where the non-
conformity can be remedied within a reasonable period of time
(2) Repair must be objectively possible.
(3) The repair must not be unreasonable for the seller under the
specific circumstances. Unreasonableness exists where the costs of
repair, which must be borne by the seller, are disproportionate to
the buyer's justified interest in repair. The comparison of the cost
of repair and the delivery of substitute goods is also a factor to be
considered.
repair is usually excluded in the following cases:
– if the acquisition of substitute goods is considerably cheaper and
may be done within a useful period of time either by the seller or a
third party, or if the buyer may reasonably obtain substitute goods
from another source;
– if the seller is a mere intermediate or retail dealer, who does not have
the necessary capabilities or infrastructure to handle the repairs and
cannot easily have a third party carry them out; p.353

The remedy owed by the seller does not only include repairs in the
strictest sense, but may extend to the replacement of non-conforming
parts and the delivery of replacement parts. p.354 9 June 1995, CISG-
online 146 (delivery of replacement glass panesfor the repair of
window elements); Enderlein/Maskow/Strohbach, Art.46 para. 7; cf.
Herber/Czerwenka, Art. 46 para. 9; Schlechtriem/Schwenzer/Müller-
Chen, Art. 46 para. 44; Staudinger/Magnus, Art. 46 para. 54. If
essential parts have to be exchanged to the extent that only a few
minor partsremain usable, this amounts
to a substitute delivery, which issubject to the requirementsset out in
Art. 46(2) (cf.Honsell/Schnyder/Straub, Art. 46 para. 101; but see
Karollus, 135–136).

COMMENTARY
ON THE UN
CONVENTION ON
THE
INTERNATIONAL
SALE OF GOODS
(CISG) , F O U R T
H E D IT IO N ,
edited by I n g e b o
rgSchwenzer