International Review of Law and Economics 25 (2005) 501–511

A Comment on “Towards a Universal Doctrine ofBreach—The Impact of CISG,” by Jurgen Basedow

Michael Bridge ∗

Faculty of Laws, University College London, Bentham House, Endsleigh Gardens,London WC1H 0EG, United Kingdom

No one doubts the enormous impact of the UN Sales Convention (the UN Convention)on the move towards uniformity of law in international commercial matters. It is not merelya matter of the importance of the contract of sale and the number of countries that havesubscribed to the UN Convention, as important as those matters are. The methodology andthe solutions of the UN Convention have fed into unofficial compilations like the LandoPrinciples of European Contract Law and the Unidroit Principles of International Commer-cial Contracts. These are instruments that are particularly apt to inform the burgeoning newlex mercatoria,1 which is itself largely a product of the growth of international commercialarbitration.

The UN Convention, moreover, has also had a penetrating impact on national laws.It has directly stimulated the reform of national sales laws,2 as a result of its perceivedgreater attunement to modern commercial conditions than old-style national laws. Lessdirectly, it has led to the restructuring of national law by the instrumentality of a EuropeanUnion Directive on Consumer Sales Guarantees.3 The Directive, as will be seen, is bothsimilar to and different from the UN Convention. The latter has acquired legitimacy fromits widespread acceptance, so that turning to it for legislative inspiration poses no serious

∗ Tel.: +44 20 7679 1449.E-mail address: m.bridge@ucl.ac.uk.

1 The expression is here used in a neutral way, without regard to whether it is descriptive or prescriptive.2 For example, the Norwegian Sale of Goods Act 1988 (16–437) (available at http://www.jus.uio.no/lm/

norway.sog.act.1988), which applies to international and domestic sales alike (though there are special provi-sions applicable to international sales: see Chapter XV).

3 Directive 1999/44/EC of the European Parliament and the Council on certain aspects of the sale of goods andassociated guarantees.

0144-8188/$ – see front matter © 2005 Elsevier Inc. All rights reserved.doi:10.1016/j.irle.2006.02.011

502 M. Bridge / International Review of Law and Economics 25 (2005) 501–511

risk of criticism by commentators. It is now well known that the Directive, largely byvirtue of provisions drawn from the UN Convention, recently stimulated a restructuring ofprovisions in the German Civil Code dealing with the law of obligations.4 It is therefore nooverstatement that the UN Convention serves as a vehicle for the advancement of uniformdomestic law within the European Union.

In the UK, there is a certain irony here. It has not yet adopted the UN Convention, thoughin the late 1990s5 it came quite close to doing so, drawing back when the sponsor6 of abill in the House of Lords fell ill, with the result that the prepared bill was never presented.The EU Consumer Sales Directive, transposed into English law by regulations in 2002,7

has nevertheless carried over portions of the UN Convention into English law – albeit intoconsumer sales law – even though it may yet be some time before the UN Convention itselfis adopted in the UK. A further round of consultation led by the Department of Trade andIndustry (DTI) seems inevitable. It is interesting that the DTI appears to view its role as apurely reactive one. It will promote a bill to introduce the UN Convention only so long asthere is at least a modicum of support, with no significant opposition, for the UN Convention.General considerations pertaining to membership of an international legal community seemto play no part in the process.

The question of uniformity (more accurately, harmonisation) of law within the Euro-pean Union is not one that can be developed at any length here, but it is noteworthy that,in the UK, the Consumer Sales Directive has been transposed in such a way that existinglaw, so far as it is more favourable to the consumer buyer, has been retained.8 Europeandirectives in the field of consumer law, which are measures of minimum harmonisation, dopermit this.9 The process is interesting for the story it tells about the relationship betweenexisting law and values and transposed law and values. In the case of the Directive, existingremedies for breach in the Sale of Goods Act were left untouched by the terms of the reg-ulations transposing the Directive, even though they were at odds with the philosophy ofcontract survival that permeates the Directive10 and that is to be found in an anterior way inthe UN Convention.11 Furthermore, new remedies transposed from the Directive were not

4 See P Schlechtriem, “The German Act to Modernize the Law of Obligations in the Context of CommonPrinciples and Structures of the Law of Obligations in Europe” (2002) Oxford Comparative Law Forum (availableat http://ouclf.iuscomp.org/articles/index.shtml). The German reforms went further than the Directive in addressingliability for damages in the absence of fault; the Directive itself does not address the remedy of damages.

5 After a consultation exercise carried out in 1997.6 Lord Clinton Davies.7 The Sale and Supply of Goods to Consumers Regulations 2002 (SI 2002 No. 3045).8 The regulations transposing the Directive (see above) added new provisions, sections 48A-F, to the existing

Sale of Goods Act 1979.9 According to Article 8(2) of the EU Consumer Sales Directive: “Member States may adopt or maintain in force

more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higherlevel of consumer protection.”10 The implied terms of description quality and fitness for purpose in sections 13–14 of the Sale of Goods Act

are all promissory conditions, which means that any breach regardless of consequences (though see now section15A, which was added in 1995) gives rise to termination rights. Under the Sales Directive, the philosophy ofcontract survival ensures that “rescission” is a last ditch remedy and every effort is made to progress the contractto discharge by performance.11 Contractual avoidance as regards quality and related performance matters requires there to be a fundamental

breach of contract (Article 25), which is an effects-based test.

M. Bridge / International Review of Law and Economics 25 (2005) 501–511 503

accompanied by a limitation in the Directive that they not be exercised in cases where thenon-conformity of goods delivered is minor in character.12 In effect, the modified Sale ofGoods Act 1979 contains alternative regimes of breach and remedies with little effort beingmade to mediate between them by means of provisions dealing with the election of reme-dies. In contrast with German law, it is remarkable how easily English law accommodatesstructural incoherence.

Professor Basedow has remarked upon the influence exercised by the common lawsystems on the content of the UN Convention, and on the fact that they were not requiredto assimilate a universal breach doctrine for the very reason that they already had such adoctrine. It is worth developing this thought further by reference to English law in order tosee if there are consequences that arise from the UN Convention’s philosophy of universalitythat perhaps the architects of the UN Convention did not fully appreciate.

The seller’s liability in respect of non-conforming goods, outside cases of express war-ranty, developed in England mainly in the nineteenth century.13 Much of this developmentoccurred prior to 1854, the year of Hadley v Baxendale,14 which inaugurated the modernrules on remoteness of damage. The earliest cases were concerned with claims to recover thepurchase price or for the recovery of a sum that amounted to an abatement of the purchaseprice. Liability on the part of a seller for consequential damages, in an amount in excess ofthe purchase price, developed almost casually, starting with an 1877 case involving the saleof a carriage pole, which, unknown to the seller, who was not the manufacturer, sufferedfrom a concealed structural weakness. The Court of Appeal, following an express warrantycase decided 2 years previously,15 held in a series of short judgments,16 and without betray-ing any concern over the significance of the point, that the matter was simply one of theapplication of the rule in Hadley v Baxendale. The seller should have contemplated that adefective carriage pole would lead to an accident and personal injury. Thus was laid downin English sales law the universal breach doctrine, with foresight of harm implanted onthe assumed knowledge of a defect in the goods, as opposed to foresight of defect beingrequired as a sine qua non of liability in damages.

From that beginning, two broad consequences emerged. First – though it is not easy tosay why English law and American law diverged at this point – no development of extendedwarranty liability by a remote seller, such as the manufacturer, to a buyer not in privity ofcontract with that seller has occurred in English law. The provision of stringent remediesagainst the immediate seller has always been regarded as sufficient in a legal system thathas not displayed concern over those rare cases where the indemnity chain breaks down,as it might do where an intermediate seller becomes insolvent.17 This attitude receives itsstrongest expression in cases involving the implied terms of merchantable quality and fitness

12 See Article 3(6) of the Sales Directive: “The consumer is not entitled to have the contract rescinded if the lackof conformity is minor.”13 See Michael Bridge, The Sale of Goods (Oxford University Press 1997, paperback impression 1998), 293–295,

318–319.14 (1854) 9 Ex 341, 156 ER 145.15 Smith v Green (1875) 1 CPD 92.16 Randall v Newson (1877) 2 QBD 102.17 Muirhead v Industrial Tank Specialties Ltd [1986] QB 507.

504 M. Bridge / International Review of Law and Economics 25 (2005) 501–511

for purpose, which lay down standards of very strict liability for immediate sellers.18 In thecommon run of case dealt with in English law – given that damages awards for consequentialloss have been kept within sensible bounds, where penal damages awards are not made andwhere class or group actions have been slow to develop – it comes as no surprise that theprivity of contract barrier has stood unchallenged.19 The end buyer has been denied accessto the manufacturer, on a statutory warranty claim, not because of the doctrine of privity20

but because the remote buyer does not stand in relation to that manufacturer as a Sale ofGoods Act buyer. The lack of any pragmatic need to extend implied warranty rights frommanufacturers to remote end buyers has preserved the doctrine of privity from a judicial orlegislative assault.21

The second broad consequence of Randall v Newson and cases like it is that the bat-tleground between seller and buyer shifts from the existence of liability for consequentiallosses to the exclusion of liability for such losses. Commercial sellers recoil from the per-ceived injustice of liability for consequential losses and seek, whenever they can, to capdamages at no more, and preferably less, than the invoice price of the goods. Courts andlegislatures have in turn made efforts to curtail attempts to exclude22 or limit23 liability.

In the context of the UN Convention, what do these domestic English developmentssuggest? First, if Article 79, which deals with exemption from liability, is interpreted in somejurisdictions as undermining an intermediate seller’s liability for consequential damages byreintroducing the need for personal fault through the back door, then the achievements ofuniformity short of reaching further into extended warranty (or even product) liability –so that a commercial buyer could reach a remote seller who could not shelter behind thesupposed fault standard of Article 79 – might be regarded as limited and insufficient.24

Secondly, serious thought should be given to carrying on the work of uniformity so that italso reaches further into matters of validity. In so far as such a development might embrace

18 Ashington Piggeries v Christopher Hill Ltd [1972] AC 441 (where remoteness of damage combines withsubstantive liability to stringent effect).19 So far as a contract confers benefits, the doctrine has been subjected to major inroads as a result of the Contracts

(Rights of Third Parties) Act 1999. The Act, however, does not create exceptions to the rule that burdens maynot be imposed on third parties (as might be argued in respect of the manufacturer in connection with a sale tothe remote end buyer). Nor does the Act countenance an imaginary intention to extend statutory warranty rights,arising in a contract between the manufacturer and a wholesaler or retailer, to a remote end buyer.20 The Contracts (Rights of Third Parties) Act 1999 might now be used to extend contractual benefits to remote

third parties, but it is in practical terms only operable in the case of express contract terms.21 Strict liability in tort was introduced in such cases by the Consumer Protection Act 1987, which transposed a

European directive on product liability (85/374/EEC).22 See the difficulties generated by attempts to exclude liability for “consequential loss” in cases such as British

Sugar plc v NEI Power Projects Ltd (1997) 87 Build L R 42 (CA).23 For England, see the Unfair Contract Terms Act 1977. Note that, in assessing a clause for meeting (or not

meeting) the legislative standard of reasonableness in section 3, courts are more sympathetically inclined towardsdamages limitation clauses than they are to liability exclusion clauses (see George Mitchell (Chesterhall) Ltd vFinney Lock Seeds Ltd [1983] 2 AC 803), as though recognising the justice of a seller’s attempts to contain itsconsequential losses liability exposure.24 The decision of the German Bundesgerichthof, in the so-called “vine-wax” case (24 March 1999, available

in English at http://cisgw3.law.pace.edu/wais/db/cases2/990324g1.html), gives considerable comfort for the viewthat this will not happen and that uniformity in the interpretation of Article 79 as between common law and civillaw jurisdictions will be maintained.

M. Bridge / International Review of Law and Economics 25 (2005) 501–511 505

the issue of limiting the seller’s consequential losses liability, this would sideline discussionof whether the curtailment of liability is a matter of validity or a matter that rightly fallswithin the parties’ sphere of autonomy as is that principle is expressed in Article 6 of theUN Convention.25 The work of the architects of the UN Convention cannot stop at theboundaries of sale as these are defined in the UN Convention itself.26

Universality is not just a matter of the internal physiognomy of the UN Convention;it concerns also the relation of sale to other bodies of law, such as tort law (referred toabove) and general contract law. It might also be said, perhaps with even stronger force,that the absence of uniform civil procedure and of a common approach to critical questionsof fact make the uniformity of the UN Convention a showcase rather than a practical matter.Consider the case of a decision of the Munich Landgericht27 concerning the sufficiency ofthe notice of defect that a buyer must serve on the seller under Article 39 in order to preservemajor remedies such as avoidance and consequential damages. The notice given concerneddefective shoes and described them as substandard and ill-fitting. That was insufficientlydetailed for the Munich court to preserve the buyer’s broader remedies but it might wellhave satisfied other countries’ courts.28 What price universality of breach in the presenceof factual differentiation of this kind? The occurrence of diametrically opposed outcomesin similar cases encourages forum shopping, which, according to conventional wisdom, isto be avoided.29

The title of the paper on which this comment is based – “Towards a universal doctrine ofbreach of contract” – prompts a further observation concerning the relative roles played bya seller’s delivery and warranty (or guarantee) responsibilities. Briefly, as is well known, therestrictions placed by civil law systems upon the timing30 and scope of a buyer’s recourseagainst the seller have encouraged a development of the notion of a seller’s essential deliveryobligation. Consequently, for example, the delivery of goods not so much defective asdifferent in kind from those agreed is regarded as the delivery of an aliud. The consequenceof this is that the shorter limitation periods associated with warranty claims do not apply andthe buyer can recover damages for the seller’s failure to deliver, without proving fault on the

25 It is not clear whether the Convention is designed to create a non-regulated environment for internationalsales (which argues for a narrow interpretation of “validity”) or whether and more passively the Convention itselfdisavows regulation.26 Strictly, the Convention’s boundaries are ambiguously expressed, not in terms of the contract of sale, but rather

as the rights and obligations of seller and buyer arising from a contract of sale (Article 4).27 3 July 1989 (see the Pace website: http://cisgw3.law.pace.edu).28 Latterly, the Bundesgerichtshof has relaxed its approach. In one case (3 November 1999, translated into

English at http://cisgw3.law.pace.edu/cases/991103g1.html) concerning the sale of machine parts which ledto the buyer manufacturing defective semi-manufactured goods, the buyer did not have to establish thecause of the defects in those goods; instead, the buyer had only to name the symptoms indicating thosedefects. See P Schlechtriem, “Uniform Sales Law in the Decisions of the Bundesgerichtshof” (available athttp://www.cisg.law.pace.edu/cisg/biblio/schlechtriem3.html). The buyer, nevertheless, still has to give the sellersufficient information that the seller might select the appropriate option (for example, cure or replacement)in response to the buyer’s notice: Oberlandesgericht Karlsruhe 6 March 2003 (translated into English athttp://cisgw3.law.pace.edu/cases/030306g1.html).29 This is not the place to take the argument that forum shopping can beneficently encourage responsive laws and

systems of national civil procedure.30 For example, the French Code civil which, in Article 1648, refers to “un bref delai”.

506 M. Bridge / International Review of Law and Economics 25 (2005) 501–511

part of the seller.31 The same distinction in the same place has not been drawn by Englishlaw, though the difference between defective and different goods has been used in the pastto define the seller’s duties in the shadow of the caveat emptor principle32 and to attackexclusion clauses that are so wide as to reduce contract to a “declaration of intent”.33 Inaddition, the seller’s duty to deliver the agreed quantity of goods is treated quite separatelyfrom the seller’s obligations of fitness and quality in the Sale of Goods Act, the formerinstance eschewing altogether any reference to the so-called doctrine of conditions andwarranties.34

Although the UN Convention recognises in analytical terms the difference between non-delivery and the delivery of non-conforming goods,35 the two cases are for most purposestreated equally. They are subject to the same rules on avoidance and to the same universalbreach doctrine that lays down a liability in damages for non-performance regardless ofpersonal fault.36 Nevertheless, though we speak of universal breach, it is striking that theUN Convention, apart from Article 25 and the rule of fundamental breach, does not dealspecifically with “breach” but rather with non-performance. The explicit reference in Article25 to fundamental breach, instead of to fundamental non-performance, therefore looksincongruous.37 Other instruments, notably the Lando Principles of European Contract Lawand the Unidroit Principles of International Commercial Contracts, more rigorously avoidany reference to breach and deal only with non-performance. This is not just a matter ofterminological style, however, because the language of breach instead of non-performancemay be a more effective vehicle for comporting the idea that personal fault on the part ofthe seller is not required for the seller to be liable in damages. The removal of personalfault, as a precondition to liability for consequential damages, can be seen clearly enoughin Article 74, but fault could so easily creep back in if the exemption rule in Article 79 weregiven an expansive reading. All that would be accomplished by universalism, if this didturn out to be the case,38 would be a reversal of the burden of proof. Instead of the buyerhaving to show fault on the part of the seller before recovering consequential damages, the

31 On the distinction between the seller’s delivery obligation and the guarantee against latent defects, see forexample J Huet, Les principaux contrats speciaux (LGDJ 2nd ed. 2001), §§11238 et seq.32 So as to confine the seller’s description responsibility to the identity of goods where these are specific as

opposed to unascertained.33 An expression of Lord Wilberforce in Suisse Atlantique Societe d’Armement SA v NV Rotterdamsche Kolen

Centrale [1967] 1 AC 361. Like the doctrine of fundamental breach, the practical necessity of this idea has beenlargely eliminated as a result of legislation.34 See section 30 of the Act.35 In contrast, the Uniform Law on the International Sale of Goods 1964 treated the seller as not having delivered

the goods when the goods failed to comply with the contractual requirements of quality and fitness for purpose(see Article 33(1)(d)–(f)).36 See also the related Limitations Convention 1974.37 In this regard, note that the fundamental breach standard laid down in Article 25 governs the availability of

avoidance in those cases where the seller is exempt from liability in damages for non-performance according tothe test laid down for exemption in Article 79 and so cannot be said to be in breach of contract.38 Note that current trends in German law run counter to this possibility: see note 28 above. Yet the persistence

of this idea in German law is evident in the commentary on Article 79 in P Schlechtriem, Commentary on the UNConvention on the International Sale of Goods (CISG) (Oxford, 2nd ed. 1998 (in translation), 620 (arguing that aseller is not, unless the contract otherwise provides, liable in damages for latent defects in goods obtained from athird party).

M. Bridge / International Review of Law and Economics 25 (2005) 501–511 507

seller would have the burden of showing it ought to be exempted under Article 79. Such anoutcome would be a surprising one for an English lawyer.

Certain elements of the UN Convention have been carried over into the EU ConsumerSales Directive but others have not. The universality of breach, which runs non-performancealongside damages, is absent in the Directive, which makes no provision at all for damages.On the other hand, the Convention’s neutral concept of non-performance is mirrored in theEU Consumer Sales Directive by the supply of non-conforming goods, which, to a commonlawyer at least, has certain disturbing features. As transposed in English law, the Directivesets out a remedial regime for the supply of non-conforming goods to consumer buyersthat runs parallel to the existing regime based upon contractual termination arising from abreach by the seller of the implied terms of satisfactory quality and reasonable fitness forpurpose.39 English law is generous in its allocation to contracting parties of strict rights ofcontractual termination. It generally40 respects their choice in designating contractual termsas promissory conditions;41 it does not subject the characterisation of terms as promissoryconditions to unfair contract terms legislation.42 The implied terms of quality and fitnessin the Sale of Goods Act 1979 are designated by the Act as promissory conditions. Despitethis predilection for strict termination rights in the event of breach, English sales law has toaccommodate the prospect of, in some respects, even stricter rights of termination arisingout of the transposition of the Consumer Sales Directive.

This is because the Directive grants in certain circumstances the right of “rescission” ofthe contract.43 The precise meaning of rescission may be in some doubt, but its terminalcharacter is not. When available, this right of rescission arises whenever goods are deliv-ered that are not in conformity with the contract. A lack of conformity is not confined tobreaches of the implied conditions of quality and fitness; it may be present where there is abreach of an express warranty44 that in the circumstances does not produce the grave con-sequences needed in English contract law for termination for breach of those terms that arenot promissory conditions.45 Rescission lies at the end of a road strewn with failed attemptsby the buyer to exact from the seller performance or its approximation by means of repair orreplacement. The Directive does not provide at all for a damages remedy: in seeing rescis-sion as an alternative to replacement and repair, the Directive therefore implicitly rejectsdamages as a mode of secondary performance of the contract. The availability of damages

39 See Michael Bridge, “Do We Need a New Sale of Goods Act?”, in J Lowry and L Mistelis (Eds.), CommercialLaw: Perspectives and Practice (Butterworths LexisNexis 2006).40 But see Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 (HL); Rice v Great Yarmouth BC,

The Times 26 July 2000 (CA).41 The conflation of the warranty and the event giving rise to rights of termination for breach, in the shape of the

promissory condition, was deplored by Williston and not adopted in the Uniform Sales Act 1906 and subsequentlyArticle 2 of the Uniform Commercial Code.42 The Unfair Contract Terms Act 1977. See Ilanchelian v Esso Petroleum Ltd (Unreported 28 September 1998,

Rimer J).43 Article 3(5).44 Sale of Goods Act 1979, section 48F. English law did not even transpose the limitation on rescission, that it

not be allowed where the lack of conformity is minor, contained in Article 3(6). Member States are allowed in theinterest of consumer protection to adopt or maintain more stringent provisions than those in the Directive: recital(24).45 Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 (CA.)

508 M. Bridge / International Review of Law and Economics 25 (2005) 501–511

for breach, pursuant to an implied secondary contractual obligation, is nevertheless currentorthodoxy in English law,46 which, however, does not subscribe to the doctrine of efficientbreach.47 In one sense, so committed is the Directive to performance of the primary obli-gations of the contract as the only remedial goal that it is content with rescission in caseswhere there is real value to salvage from the contract. The Directive allows the buyer, whererepair or replacement are not available, to choose between price reduction and rescission.It does not permit rescission where the lack of conformity is minor, but this restriction, asstated above, has not been transposed into English law.

Returning now to the UN Convention, despite its apparently indifferent treatment of sellernon-performance and seller breach, the question whether there is any practical import in theartificial distinction between the two needs to be probed more thoroughly. So far as somepractical distinction exists, the existence of a universal breach doctrine is compromised. Itis arguable that a distinction between the two is to be found in Article 2 of the UniformCommercial Code. Article 2 draws a distinction between the rejection of the goods and therevocation of the buyer’s acceptance of the goods. A buyer eager to be rid of non-conforminggoods can more effectively reject them prior to acceptance than after acceptance. In the lattercase, the buyer is required to show that the non-conformity of the goods substantially impairstheir value to him;48 in the former case, the buyer can take his stand on the perfect tenderrule.49 Although acceptance does not necessarily occur when the buyer accepts the seller’stender of performance, the clearest case of rejection will occur when the tender itself isrejected, rather than the goods themselves some time after delivery has been made.50 It isby no means clear that a breach of contract occurs when the seller’s non-conforming tenderis not accepted and time and opportunity remain to perform the contract with a different,this time conforming, tender.51 Although there may be no breach, yet the seller, in makinga tender that the buyer is entitled to reject, cannot be said to be performing the contract.

It is worth briefly exploring the UN Convention itself to see if there lies latent in ita perfect tender rule – applicable only at the point of tender and no later – that survivesthe fundamental breach rule of contractual avoidance.52 The case for a perfect tender rule,permitting the buyer to refuse to take delivery even in the absence of a fundamental breach

46 The notion was promoted by Lord Diplock in a series of cases, e.g. RV Ward Ltd v Bignall [1967] 1 QB 534(CA); Photo Productions Ltd v Securicor Transport Ltd [1980] AC 827 (HL); Moschi v Lep Air Services Ltd[1973] AC 331 (HL).47 The judgment of Lord Coke in Bromage v Genning (1616) 1 Rolle 368 has had a greater influence on the

contents of American casebooks on Contract than it has had on the development of the English law of contract.(It does not even rate a mention in GH Treitel, The Law of Contract (Thomson, 11th ed. 2003), a treatise notedfor its meticulous and extensive citation of authority.)48 Article 2-608.49 Article 2–601.50 As would be possible under Article 2–602.51 The same point could be made of Article 37 (cure before the time form performance has expired) which, unlike

Article 48 (cure in other cases), is not subject to the buyer’s right to avoid the contract under Article 49.52 I have argued the case for this elsewhere in Michael Bridge, “The Vienna Sales Convention and English

Law: Curing Defective Performance by the Seller” (for a Festskrift til Ole Lando (eds LL Andersen, JFejo and R Nielsen) (Gadjura, Copenhagen 1997)), 83–108. For a different approach, see P Schlechtriem,“Interpretation, Gap-Filling and Further Development of the UN Sales Convention” (2004) (available athttp://cisgw3.law.pace.edu/biblio/schlechtriem6.html).

M. Bridge / International Review of Law and Economics 25 (2005) 501–511 509

committed by the seller, may be made on the basis of Article 53, which requires the buyerto take delivery and pay for the goods as required by the contract and the UN Convention.Article 53 is the counterpart to Article 30, which lays down the seller’s corresponding dutyto deliver the goods as required by the contract and the UN Convention. The two sets ofobligations are presumptively dependent upon each other by virtue of Article 58, so that inall there is considerable comfort for the view that a buyer detecting a flaw in the goods atthe point of tender may refuse to take delivery.

Now, an argument of such a radical kind might seem hard to square with the policyimperatives of the UN Convention, which aim at progressing contracts through to fulfilment.It hardly seems to fit the rule that a buyer may not require the substitution of the goods inthose cases where the lack of conformity fails to constitute a fundamental breach.53 Nordoes the argument sit easily with the rule that a buyer may suspend performance only if itbecomes apparent that the seller “will not perform a substantial part of his obligations”.54

The point about a perfect tender rule in a Convention that does not recognise the concept ofspecific goods, or the technical concept of description,55 is that a buyer who rejects a tenderis not as such avoiding the contract but requesting the seller to try again. And that looks likesuspension, at least when the seller has not run out of time to perform the contract.

Three further points remain. The first is that a universal conception of breach doesnot sit well with the focus of the UN Convention on requiring performance, which isthe primary remedy. Again, a universal conception of performance might be more to thepoint. This particular universality, however, is compromised by the exit given to commonlaw courts whose sensibilities might be jarred by requiring performance in cases where,under their own law, they would not order the specific performance of the contract.56 This isclearly a concession to the common law mentality: the relevant provision speaks of “specificperformance”, a concept otherwise unknown to the UN Convention. As Professor Basedownotes, no such concession is made in the EU Consumer Sales Directive. He wonders whether,just as German civil law has been reformed, in consequence of the irritating impact of theDirective, the common law of contract might be revised to enshrine specific performanceas the primary remedy for breach in view of the inconsistency between consumer sales lawand general contract law.

For the following reasons, it nevertheless appears unduly sanguine to look forward toa radical restructuring of the philosophy of English contract law. First of all, it wouldrequire remarkable persuasive powers to press the case for legislation – and it would requirelegislation – leading to the enshrinement of specific performance as the primary remedyfor breach when in practice is it unlikely to be a very frequent one. Legislative time in thecrowded parliamentary agenda is too precious to be squandered in this way. Any case forradical contract law reform, based on theoretical coherence, with no reference to practicalbenefit and stakeholder demand, would, if presented to the Department of Trade and Industry

53 Article 46(2).54 Article 71(1). Emphasis added. Note that this test is significantly less strict than the test for fundamental breach

in Article 25.55 The technical concept of description in English law, which is excessively preoccupied with uniqueness of

selected goods, even if these are fungible, is not the description that is present in Article 35.56 Article 28.

510 M. Bridge / International Review of Law and Economics 25 (2005) 501–511

or even the Law Commission, be met by a stony silence. Specific performance is a remedyalready recognised in English law; it is just not granted very often. Like so much othercontested ground that separates the front lines of civil and common law, specific performancein practice is barren ground that is hardly worth the contest. The practical differencesbetween the two philosophies are smaller than, for rhetorical and argumentative purposes,they are imagined to be.

In any case, English courts were given greater freedom to decree specific performancein sale of goods matters by a statute passed in the 1850s.57 The statute has had no practicaleffect at all in loosening up the grant of specific performance. The regulations transposingthe EU Consumer Sales Directive, by the way, carry on this grand tradition of enablement,as opposed to compulsion, by providing that courts may grant specific performance inthe cause of repair and replacement.58 In the end, the community of English commonlawyers is likely to shrug off the Directive as specific in its character and as not bearingon the general law of contract. Unlike the French legal community, they will not worryabout where in the system – whether in consumer law or the general law of obligations– the transposition of the Directive should be effected. Some English common lawyers,however, would prefer to see the formal separation of commercial and consumer sales law–myself included – but mainly in the cause of preserving the values of English commerciallaw.59

The second point relates to the price reduction remedy in Article 50, which, like itsequivalent in the Consumer Sales Directive, will not be understood by many commonlawyers for what it is, namely, a type of unilateral rewriting of the contract by the buyer.This amounts to a type of specific performance of a modified contract of sale, executed bythe buyer alone or with the aid of the court. It is an unsettled question whether a buyer mightsue for the price difference in the form of a damages action further to Article 74, which, infalling market conditions, would represent the preferable course of action. So long as buyershave a choice in the matter – which seems hard to defend – we are looking at a retreat fromuniversality in the sphere of remedies. Article 50 provides a remedy for non-performance;Article 74 provides a remedy for breach.

The last point again relates to universality and is a warning note that uniformity, withinthe restricted walls of the UN Convention, is no guarantee of universality generally. DespiteArticle 5, which was designed to avoid collisions between national tort laws and the UNConvention, it remains likely that some systems will permit claimants to pursue an actionin tort where, for various reasons, such as the failure to serve a proper notice of defectunder Article 39, no substantial claim can be pressed under the UN Convention. Similarly,in certain common law systems, the easy grant of rights of rescission for misrepresentationin cases where, treating the case as one of breach (which it could also be), the claimantwould be nowhere near making a case for fundamental breach, undermines universality ina major way. The prospect of recharacterising a wrong as tort or misrepresentation puts one

57 Mercantile Law Amendment Act 1856, section 2.58 Section 48E(2) of the Sale of Goods Act 1979 as added by the regulations. Is this a correct transposition of

the EU Consumer Sales Directive?59 See Michael Bridge, “Do We Need a New Sale of Goods Act?”, in J Lowry and L Mistelis (Eds.), Commercial

Law: Perspectives and Practice (Butterworths LexisNexis 2006).

M. Bridge / International Review of Law and Economics 25 (2005) 501–511 511

in mind of the Roman Empire and its quest for ever more distant and defensible boundaries.In this, as in so many other respects, the work of uniformity in sales law starts and doesnot end with the adoption of the UN Convention. The philosophy of uniformity compels itssupporters to press on into neighbouring areas of law.