51-1

October 1991. It can meanwhile be seen from a letter by the [Buyer] of 11 August 1991 that in the beginning of August, the [Buyer] was already in possession of the missing computer parts because of a substitute purchase, that [Buyer] – as was submitted – was legally obligated to make; and therefore was in the position to fulfil the contractual obligations in regard to M. GmbH. The withdrawal by M. GmbH from its contract with the [Buyer] – and therefore the non-accomplishment of the purpose of the purchase targeted by the [Buyer] – only took place in January 1992 and therefore was obviously not a result of the breach of contract by the [Seller], as the [Buyer] had all the computer parts it needed to fulfil the order at hand. Accordingly, there is no fundamental breach by the [Seller] in the sense of CISG Art. 25. Therefore, an avoidance of the contract by the [Buyer] in accordance with CISG Art. 51(2) was not possible. Hence, in accordance with CISG Art. 53, [Seller]’s suit for the purchase price is justified in the claimed and uncontested amount. [. . .]

Questions

Q 51-1 According to the interpretation in this case (C 51-1), in which cases will avoidance for fundamental breach under Art. 51(2) CISG be permissible?