• International Commerce and Information Review
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• v.14 no.3
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• pp.231-251
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• 2012

The remedies available to a seller that has suffered a breach of contract by the buyer are addressed in Section III of Chapter III of Part III. The first provision in the section, 61, catalogues those remedies and authorizes an aggrieved seller to resort to them. The remaining provisions of the section address particular remedies or prerequisites to remedies. The subject matter of the current section remedies for breach of contract by the buyer obviously parallels that of Section III of Chapter II of Part III remedies for breach of contract by the seller. Many individual provisions within these sections form matched pairs. Thus 61, which catalogs the seller's remedies, which catalogs the buyer's remedies. Other provisions in the current section that have analogues in the section on buyer's remedies include 62, seller's right to require buyer's performance 63, seller's right to fix an additional period for buyer to perform and 64, seller right to avoid the contract. As was the case with the provisions on buyers' remedies, the articles governing sellers' remedies operate in conjunction with a variety of provisions outside the current section. Thus the seller's right to require performance by the buyer is subject to the rule in 28 relieving a court from the obligation to order specific performance in circumstances in which it would not do so under its own law. The authorization in 61 for a seller to claim damages for a buyer's breach operates in connection with 74-76, which specify how damages are to be measured. 49, stating when an aggrieved seller can avoid the contract, is part of a network of provisions that address avoidance, including the definition of fundamental breach, the requirement of notice of avoidance, provisions governing avoidance in certain special circumstances, measures of damages available only if the contract has been avoided and the provisions of Section V of Part III, Chapter V on effects of avoidance.

• Korea Trade Review
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• v.41 no.5
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• pp.187-211
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• 2016

This study discusses the right of suspension of performance against anticipatory breach under SGA. Anticipatory breach originated in Hochster v De La Tour allows the innocent party to exercise immediately the right or rights reserved for the non-performance of obligations. But it has not been codified in English Law. Instead, under SGA s. 41 and s. 44, the seller may suspend his performance against the buyer' anticipatory breach. Lien under s. 41 and stoppage in transit under s. 44 are given only to the seller in a narrowly-defined situation. Under SGA s. 41, the unpaid seller is entitled to retain possession of goods where the buyer becomes insolvent. But under SGA s. 43, the unpaid seller loses the right of lien when he delivers goods to a carrier or other bailee or custodian for the purpose of transmission to the buyer without reserving the right of disposal, or when the buyer or his agent lawfully obtains possession of the goods, or by waiver of lien. Under SGA s. 44, the unpaid seller may exercise the right of stoppage in transit if the buyer becomes insolvent, despite the fact that the property of goods has passed or a bill of lading has been transferred to the buyer. But, under s. 45, the right of stoppage in transit is ended when the buyer or his agent takes delivery of goods. And where the buyer transfers a bill of lading to a sub-buyer, the unpaid seller loses his right to stop goods in transit.

• International Commerce and Information Review
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• v.16 no.3
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• pp.159-182
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• 2014

CISG Article 71 (1) states that a party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will net perform a substantial part of his obligations as a result of a serious deficiency in his ability to perform or in his creditworthiness or his conduct in preparing to perform or in perfoming the contract. CISG Article 71 (2) states a 'right of stoppage in transit' that if the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. Under the right of stoppage in transit, the carrier copes with risks that the seller may claim damages arose from the handing over the goods, if he hand over the goods to the buyer and that the buyer may claim damages, if he deny handing over the goods to the buyer who has the document which entitles him to obtain the goods. Therefore the legal position of the carrier may become weak. This paper purpose to point out the legal weakness of the carrier under the right of stoppage in transit and to provide the proper legal act of the carrier and possible practice related to various characters of the contract of sale of the goods. Although there is the opinion it prevent from handing over the goods to the buyer actually under the interpretation that the buyer should take claim damages to the seller, if the goods are handed over to the buyer under the right of stoppage in transit, it is not appropriate because the opinion may disable the right of stoppage in transit. The right of stoppage in transit could be carried out under any payment conditions except letter of credit and under any mode of transportation except the cases that carrier is the buyer himself or the agent of the buyer. It could be executed regardless the forms of the transport document.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.53
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• pp.49-74
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• 2012

This study primarily concerns the seller's right to require performance under the United Nations Convention on International Sale of Goods(1980) (here-in-after the CISG). By virtue of art. 62 of the CISG, the seller may require to pay the purchase price, take delivery or perform his other obligations. The right is known as a process whereby the aggrieved seller obtains as nearly as possible the actual subject-matter of his bargain, as opposed to compensation in money for failing to obtain it. The study describes and analyzes the provisions of the CISG as to the seller's right to require performance, focusing on the questions of what the seller can require the buyer to perform, and what the restrictions of his right to require performance are. It particularly deals with main controversial issues among scholars as to whether art. 28 of the CISG is applied to the seller's action for the price and so that it opens the door domestic traditions and national preconditions that prevent judges and enforcement authorities in some contracting states, and whether the seller's to require performance is subject to the duty to mitigate loss within the meaning of art. 77 of the CISG. On the basis of the analysis, the study puts forward the author's arguments criticizing various the existing scholars' views. In addition, this study provides legal and practical advice to the contracting parties when it is expected that the CISG is applicable as the governing law.