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I.
INTRODUCTION
A uniform law convention does not enjoy the privilege of a sheltered upbringing. It is susceptible to the charge of uncertainty, so from its inception the pressure is on to manufacture legal growth and development in the cause of clarity and critical mass. A widespread acceptance of the convention by States assists in building up this critical mass, but the highly variable quality, type and cultural approach of different national courts and tribunals militate against clarity and consistency. That said, some degree of inconsistency in the early case law may not just be unavoidable but also desirable. A vigorous body of case law encourages the testing of ideas--argued law is tough law--and guarantees the healthy long-term future of the convention. Certain features of a convention, especially the innovative ones, may have greater need than others to be probed in this way. This arguably is the case for the doctrine of fundamental breach in the United Nations Convention on the International Sale of Goods (the CISG) 1980,1 whose particular vulnerability (also its opportunity) is its general lack of pedigree in national systems of law.2 The purpose of this article is to provide a critical analysis of the doctrine of fundamental breach and of the way it has developed since the CISG came into force in 1988. In an incidental way, a review of the operation of fundamental breach should illuminate domestic legal provisions allowing for avoidance in the event of a breach of contract.
The CISG provides two routes to the avoidance3 of a contract of sale for non-performance. The first route is for the complainant to establish a fundamental breach of contract and the second is for the complainant to fix an additional time of reasonable length for the other party to perform, in default of which the complainant may avoid the contract.4 These routes are alternative routes, though, despite their separation, there is at times an interplay between them that calls for attention.5 As stated above, this article is concerned with the first of these routes to avoidance. Before the meaning of fundamental breach is explored, however, it is first necessary to determine the meaning and effects of contractual avoidance...