Cure after date for delivery: Comparison between provisions of the CISG (seller’s right to remedy failure to perform: Article 48) and the counterpart provisions of the PECL (Articles 8:104 and 9:303)

A contractual party's right to cure a non-performance under the condition that such cure does not create any – or at least any excessive – hardship for the aggrieved party has emerged from common law traditions to become almost a staple of modern contract law, and of modern sales law in particular. Different justifications for the principle may be cited, whether in terms of risk allocation, good faith obligations, or the relational approach to contract as a framework of relations between parties that shifts the analytic emphasis from overt rules (whether set contractually or by statute) to the actual framework of relations and interests involved. Whatever the theoretical overview, the principle of cure is perhaps the most important deviation from strict doctrines of liability for breach, and as such it maintains an important relation to the doctrine of contract avoidance (“termination” in the context of the PECL), as discussed next. Curing a non-performance may be relevant in various contexts: payment, defective or missing documents, non-conforming or non-delivered goods, etc. In the PECL – which apply to any and all contractual transactions, not only sales or international sales – Art. 8:104 recognizes a non-performing party's general right to cure, limited by parameters that are discussed presently. In the CISG – divided as it is into seller's and buyer's rights and obligations – the right to cure non-performance depends upon the nature of the non-performance and the time of cure; it is divided into different typical situations, covered by several Articles.