Lloyd's Maritime and Commercial Law Quarterly
THE SELLER’S RIGHT TO CURE DEFECTIVE PERFORMANCE—A REAPPRAISAL
Vanessa Mak *
It is a contested point whether English law lends support to a right to cure for the seller in case of defective performance. While the weight of authority on the matter may rightly be doubted by adversaries of such a right, contractual principles appear to be in favour of recognition of a right to cure where the contractual time for performance has not expired. This article aims to show that there is a basis for cure in English sale of goods law that deserves formal recognition and that may take away some of the deficiencies of currently endorsed informal cure regimes.
I. INTRODUCTION
English law seems reluctant to give second chances to sellers who fail to get it right the first time around. While it may be an established rule that the seller has the right to make good a defective tender through subsequent performance if he can do so within the time left for performance,1
further intimations of the existence of a right to cure in English sale of goods law are hard to come by. There are in fact very little guarantees for the seller that, instead of paying damages, he may remedy a defective performance through repair or replacement of the goods. The balance is generally struck in favour of the buyer, who, by exercising his right to reject the goods and terminate for breach, can put an early stop to any attempts at cure by the seller.
However, why not adopt a more positive stance towards cure? This article seeks to show that the prevailing opinion on the existence—or, perhaps more accurately, nonexistence—of a right to cure in English sale of goods law is misguided. Contractual
* Lecturer in Law, Oriel College, Oxford. I am grateful to Professor Sir Roy Goode, Professor Ewan McKendrick, Professor Francis Reynolds and Professor Hugh Beale for helpful comments on an earlier draft. The usual disclaimer applies.
The following abbreviations are used in the footnotes:
Benjamin
: AG Guest et al
(eds), Benjamin’s Sale of Goods
, 7th edn (London, 2006);
Bradgate & Twigg-Flesner: R Bradgate and C Twigg-Flesner, Blackstone’s Guide to Consumer Sales and Associated Guarantees
(Oxford, 2003);
Bradgate & White: R Bradgate and F White, “Rejection and Termination in Contracts for the Sale of Goods”, in J Birds, R Bradgate and C Villiers (eds), Termination of Contracts
(London, 1995) 51;
CISG: UN Convention on Contracts for the International Sale of Goods 1980;
Goode: R Goode, Commercial Law
, 3rd edn (London, 2004);
Treitel: Sir G Treitel, The Law of Contract
, 11th edn (London, 2003).
1. The most notable cases are Motor Oil Hellas (Corinth) Refineries SA
v. Shipping Corp of India (The Kanchenjunga)
[1990] 1 Lloyd’s Rep 391 (HL), 399 and Borrowman Phillips & Co
v. Free & Hollis
(1878) 4 QBD 500 (CA). See further Antonia Apps, “The right to cure defective performance” [1994] LMCLQ 525; Goode, 343.
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