ABSTRACT
It would be difficult to imagine an allegation that more clearly fulfills the notice function of pleading. Convention Art. 72 addresses the concept of anticipatory breach: “(1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided. (2) If time allows, the party intending to declare the contract avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance. (3) The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations.” And Convention Art. 25 states in relevant part: “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 . . . .’ That plain language reveals that under the Convention an anticipatory repudiation pleader need simply allege (1) that the defendant intended to breach the contract before the contract’s performance date and (2) that such breach was fundamental. Here Magellan has pleaded that Salzgitter’s March 29 letter indicated its pre-performance intention not to perform the contract, coupled with Magellan’s allegation that the bill of lading requirement was an essential part of the parties’ bargain. That being the case, Salzgitter’s insistence upon an amendment of that requirement would indeed be a fundamental breach. [. . .]
Art. 72(2) CISG makes it clear that, as a general rule, the conforming party must give the other party a chance to furnish adequate assurance before it resorts to the remedy of avoidance of the contract. Though not expressly stated, it should be possible for the creditor to fix a period within which the debtor is to furnish such assurance.
