Friday, August 26, 2011

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Monday, August 22, 2011

Career Objectives

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The focus of my career path is to reach a leadership position that requires a commitment to and a passion for excellence in the products I help produce and the customers I serve. I understand that to remain in this very unstable industry is to accept a challenge and face difficult decisions. If the textile industry is to keep its foothold in the southeast, it will require a new generation of leaders to continually challenge its boundaries through innovation, experimentation, and application of proven knowledge. I want to be one of those leaders and I believe that studying the principles described in the Master of Business Administration literature will make me a value to the industry, while helping me reach my personal goals.


Continuing my education is important to me because although I feel that I currently possess the tools that will make me a benefit to my employer in the short term, I do not feel that I have all the skills that will be needed to position myself for a rewarding career in the long term. I want to work in a successful environment that demands the utilization of personal and team skills and the development of new skills and ideas. Further, I want to continually confront my boundaries and expand my experience base. Lastly, I want to achieve all these goals through the balance and support of my personal life.


I am pursuing a degree program for a variety of reasons. First, since I have committed several years to the industry, I feel that a more comprehensive understanding of the business environment than I currently posses will be beneficial to both my employer and me. Second, realize that although a background in is a good foundation for my career, I will benefit from continual development, through both education and work experience. The successful completion of the coursework outlined in the literature will force me to develop a business sense and deepen my knowledge of business transactions. Third, the program offers me a grand opportunity to continue my career while studying business principles that are applied in the learning laboratory of the business world every day. Additionally, the presence of many locations will assist my completion the program, as my employer has locations throughout the state and it is likely that I will be relocated one or more times in the next few years.


Finally, and most importantly, I have chosen the MBA program because I want to be a more competitive force in the business environment. The MBA program will provide me with the best opportunity to better myself, because it will allow me to continue my education while pursuing my career objectives.


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Friday, August 19, 2011

Business Resumption When Disaster Strikes

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A Crisis Plan is a ‘Must Have’ for Every Company


This article brings forth worst case scenario issues as a role playing development process. One worst case scenario is if a dirty bomb exploded within a 10-mile radius of business. What would the business do? What contingency plan is in place for such a disaster? Would the company cease operations or could the company survive such a catastrophe? The article suggests that without the creation and maintenance of a crisis plan the cards would be stacked against the company in such a crisis situation.


Key Point 1


Quite possibly the most notable points made in this article is the author’s opinion, that the time to figure out all of the crisis management details is before not after or during the actual crisis. Without a crisis management plan to resort too, many situations could “spiral out of control”(Moed, 00). Important information, such as, insurance policies, phone numbers, files, programs, etc. could disappear in a crisis, but if a there was a detailed contingency program in place then these items would be available when needed.


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Key Point


Crisis management must be a team effort to be successful. Major departments within a company need to work together to properly prepare for a crisis. These departments should role play major disasters and create an evaluation system to measure the performance of department executives. Edward Moed of PepperCom suggests a five step approach to evaluating management’s preparedness during a role play situation. The system should measure the composure of executives and evaluate their ability to collect information; whether there was a proper assessment of the challenges and barriers; evaluation of the reaction to the crisis and whether the action plan was implemented properly; an evaluation of the evaluating process and goals; and the overall success of the of the hypothetical crisis with suggestions for future crisis management. The article suggests that the actual management of the crisis can be more important than the crisis itself (Moed, 00). A small crisis could explode into a crisis of real significance due to poor management and improper responses.


My Company


Cal-Care Medical does not have a disaster plan available. There are some simple steps they have taken to prevent complete destruction of the business in the event of fire or other disaster. The company has a tape backup of all the computer systems, which is sent home with an employee once a week. It has been suggested that this is not the best method of backing up the computer files, because restoration from tape backup is a tedious time consuming process.


At this time, a catastrophic event would probably equal the demise of the business. There are insurance policies for such incidents, but by the time new facilities were constructed our clients would have disappeared. Without advanced relocation contracts or equipment borrowing capabilities, it would be extremely difficult to maintain our current patient load.


Cal-Care does not currently role play as the article suggested because they haven’t had a focus on disaster recovery. I personally, have not prepared a disaster plan for the company. After reading the article and listening to my instructor it has become apparent that this is a serious issue. I disagree with the companies past decisions not to develop a crisis plan. If the company does not want to dedicate some resources to the preservation of the business during a crisis, then they are playing Russian roulette with a loaded gun pointed straight at the heart of the company. Many people rely on our business to be there every day, not only our clients but our employees as well. There must be a disaster plan in place in order to bring the company back to its normal operating speed within the shortest amount of time possible.


References


Moed, E. (00). Disaster Recovery Journal A Crisis Plan Is A ‘Must Have” For Every


Company. Volume 15, Issue 4 � Fall 00.





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Wednesday, August 17, 2011

function of education

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it is very important to students to nuture a good qulified education.id ko i fi o tod kaidoa


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Essay The essay must be at least 50 words long! The most important function of education at any level is to develop the personality of the individual and the significance of his life to himself and to others. This is the basic architecture of a life; the rest is ornamentation and the decoration of the structure.


--Martin Luther King Jr.


As a teacher I realize that I must learn to put my own thoughts and beliefs aside to acknowledge the thoughts and beliefs of my students. I must create a classroom environment, which allows students to feel comfortable about asking questions and sharing opinions within the class.


As a teacher I am responsible for encouraging my students to open their minds and use their imaginations. As an educator I must learn what types of learning styles each one of my students have, and use appropriate materials in each one of their lesson plans.


I realize that as an educator I will be a role model for my students. As a teacher I must keep in mind that each one of my students comes from a different background and that each student has different needs. One of my goals is to help my students through Maslows Hierarchy of Needs. I am responsible for taki








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Sunday, August 14, 2011

the essay

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my - Although young women are much more independent, outspoken and


have many more choices, in comparison with Emma‘s world, social


acceptance and popularity is still a priority.


- The lack of social awareness and responsibility is presented by Chers


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ideas of contributing to society as “helping lonely teachers find


romance’ and donating expensive athletic equipment to the Pismo


beach disaster.


- Heckerling presents a world where such attempts are regarded as self


serving, ineffectual or examples of a “post adolescent idealistic


phase!


- Although young women are much more independent, outspoken and


have many more choices, in comparison with Emma‘s world, social


acceptance and popularity is still a priority.


- The lack of social awareness and responsibility is presented by Chers


ideas of contributing to society as “helping lonely teachers find


romance’ and donating expensive athletic equipment to the Pismo


beach disaster.


- Heckerling presents a world where such attempts are regarded as self


serving, ineffectual or examples of a “post adolescent idealistic


phase!


- The main threat to the heroine‘s happiness is their own lack of- Although young women are much more independent, outspoken and


have many more choices, in comparison with Emma‘s world, social


acceptance and popularity is still a priority.


- The lack of social awareness and responsibility is presented by Chers


ideas of contributing to society as “helping lonely teachers find


romance’ and donating expensive athletic equipment to the Pismo


beach disaster.


- Heckerling presents a world where such attempts are regarded as self


serving, ineffectual or examples of a “post adolescent idealistic


phase!


- The main threat to the heroine‘s happiness is their own lack of


awareness, their cluele- Although young women are much more independent, outspoken and


have many more choices, in comparison with Emma‘s world, social


acceptance and popularity is still a priority.


- The lack of social awareness and responsibility is presented by Chers


ideas of contributing to society as “helping lonely teachers find


romance’ and donating expensive athletic equipment to the Pismo


beach disaster.


- Heckerling presents a world where such attempts are regarded as self


serving, ineffectual or examples of a “post adolescent idealistic


phase!


- The main threat to the heroine‘s happiness is their own lack of


awareness, their cluelessness.


- Austen may criticise the triviality of the female lives, the obsession


with matchmaking and marriage and the propensity to judge people


according to social rank rather than individual worth, but she leaves us


in no doubt of the correct moral and social values and those that wish


threaten to undermine society.- Although young women are much more independent, outspoken and


have many more choices, in comparison with Emma‘s world, social


acceptance and popularity is still a priority.


- The lack of social awareness and responsibility is presented by Chers


ideas of contributing to society as “helping lonely teachers find


romance’ and donating expensive athletic equipment to the Pismo


beach disaster.


- Heckerling presents a world where such attempts are regarded as self


serving, ineffectual or examples of a “post adolescent idealistic


phase!


- The main threat to the heroine‘s happiness is their own lack of


awareness, their cluelessness.


- Austen may criticise the triviality of the female lives, the obsession


with matchmaking and marriage and the propensity to judge people


according to social rank rather than individual worth, but she leaves us


in no doubt of the correct moral and social values and those that wish


threaten to undermine society.ssness.


- Austen may criticise the triviality of the female lives, the obsession


with matchmaking and marriage and the propensity to judge people


according to social rank rather than individual worth, but she leaves us


in no doubt of the correct moral and social values and those that wish


threaten to undermine society.


awareness, their cluelessness.


- Austen may criticise the triviality of the female lives, the obsession


with matchmaking and marriage and the propensity to judge people


according to social rank rather than individual worth, but she leaves us


in no doubt of the correct moral and social values and those that wish


threaten to undermine society.


awareness, their cluelessness.


- Austen may criticise the triviality of the female lives, the obsession


with matchmaking and marriage and the propensity to judge people


according to social rank rather than individual worth, but she leaves us


in no doubt of the correct moral and social values and those that wish


threaten to undermine society.


Please note that this sample paper on the essay is for your review only. In order to eliminate any of the plagiarism issues, it is highly recommended that you do not use it for you own writing purposes. In case you experience difficulties with writing a well structured and accurately composed paper on the essay, we are here to assist you. Your persuasive essay on the essay will be written from scratch, so you do not have to worry about its originality.

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Friday, August 12, 2011

Comparing The Great Santini and Death of a Salesman

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Elementary school taught everyone that to compare and contrast two things, the best way to go about doing that is with a Venn diagram. Truthfully, this is an effective method, but it is quite rudimentary under the circumstances. The Great Santini by Pat Conroy and Death of a Salesman by Arthur Miller are two books that can become victims of the dreaded Venn diagram. The two stories are accounts of the lives of two families, each living out its version of the American Dream. The focus of both stories is on the father and how he interacts with everyone and everything around him. Bull Meechum of The Great Santini is a marine, raising his children as hogs and expecting only the best, if not better, from his brood. Willy Loman of Death of a Salesman also expects great things from his children, to the point that he refuses to believe that either of his sons is a failure, even when it is clear that they are. Although the two men themselves have many similarities, there are also other similarities between the two stories. One similarity is the role of the first son in the two anecdotes. Also, there is the role of the second child. Finally, both stories involve characters that are realizing what it means to be a man and what responsibilities come with the title.





Bull Meechum is the father of four kids two boys and two girls. His oldest son is Ben, a senior in high school who is well on his way to a career in basketball. As the son of a marine, Ben has been raised to take orders, no matter what the possible consequences may be. At the beginning of the story, Ben is talking to his father about his future. When Ben vehemently expresses his interest in pursuing basketball, Bull protests and reminds his son that he will serve in the marines for his four years, and then he can do whatever he wants. Unfortunately, Bens basketball calling is cut short because of his fathers hot headed insistence that Ben must take out a player on the other team, resulting in a broken arm and Bens expulsion from the team. Like Ben, Biff Loman, the son of Willy Loman and the older of two boys, is a rising sports star. Biff is a football player for his school but his commitment to the sport results in a failing math grade. When Biff finds out his grade, he is willing to go to summer school immediately, but his father persuades him otherwise, telling him that he will be fine without summer school, though Willy does not remember that this is how the account takes place. It is not until later when Willy visits Bernard that he realizes that it is his own fault that his son never succeeded in making something out of his life. Although both sons have issues with standing up to his over powering father, they do finally fight back. Through Bens experience with Toomers death and Biffs comprehension that his fathers idea of what the future holds is horribly skewed, the two boys realize that it is better to fight back and disobey the orders that they have always followed. Still, no matter what Ben and Biff do, whether it is good or bad, they still receive the majority of the attention of their fathers.





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Mary Anne Meechum and Happy Loman are the second children of their individual families. Both Mary Anne and Happy play the role of the less important child, receiving less respect and attention from their entire family. For Mary Anne, the lack of attention that she is given is even harder for her to accept because she is a drama queen, craving the spot-light at all times. At one point, in attempts to catch her fathers interest, Mary Anne tells Bull that she is pregnant and that the father of the baby is everything that her father could ever hate about someone a black pacifist. Even when she tells him all of this, he continues to ignore her, getting mad that she is interrupting him while he reads the paper. The same kind of thing happens to Happy. In an endeavor to get his parents attention, he announces that he is getting married, to which they nonchalantly respond with little more than a go to bed. All that these two victims of second-child syndrome want is a little respect and an occasional word of approval.





In the process of becoming an adult, respect, among other things, is something that is taken for granted as a privilege that comes with age. Willy does have his familys respect, but he has a horrible fear of losing that admiration. For that reason, when he does not have enough money to pay the bills, Willy borrows money from Charley so his family will not notice the difference. In Bulls case, he has his childrens respect because he is not actually their father, but essentially their drill sergeant, and they are not really his children, but in fact his hogs. Willy and Bull seem to feel that as the heads of their respective homes, it is their job to be the manly man. In some cases, the man of the house is known to have some sort of immoral streak. In Bulls case his appalling facet is that when he gets very angry, he takes it out on Lillian, his devoted and loving wife. For Willy, his vice is the affair that he is having. Learning what it means to be a man is not only important for Willy and Bull, but also for Biff and Ben. The two boys go through the process of becoming men in much different ways. To start with, Biff has to finally accept responsibility at a much older age than most boys would. He is already thirty-four when he realizes that if he ever wants to turn his life around he is going to have to do it one step at a time. Ben on the other hand is only a senior in high school when he takes charge of not only his life, but also the lives of the rest of his family. One of Bens lessons in becoming a man is the experience that he has with Toomers death. He also finds out that defending his mother when his father is hitting her is also one of his new responsibilities as a man. It is finally evident that Ben has accepted the role as the man of the house after his fathers death. When the family is moving back to Atlanta and Ben follows the old custom of his father of getting his family up at three in the morning to avoid traffic, its clear that he has truly become a man.





Becoming a man; the first child; the second child; all of these are topics that The Great Santini by Pat Conroy and Death of a Salesman by Arthur Miller have in common. Through the relationships between father and child, the two books can be compared and contrasted. Not only can the stories be compared by their relationships concerning the father and child, but also just the fathers themselves can be compared and contrasted in so many ways that one could probably write a thorough essay just comparing Bull Meechum and Willy Loman.








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Thursday, August 11, 2011

Dramatic Elements Found in Two of Lillian Hellman's Books

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Every play written uses dramatic elements. The main dramatic elements are plot, character, theme, and language. Lillian Hellman, who wrote The Little Foxes and Another Part of the Forrest, incorporates these elements skillfully in both of her plays. The plays are set during the spring of 100 and take place in the Deep South part of the United States. The first one written, The Little Foxes, is actually set twenty years after the other play, Another Part of the Forest. Just as every other play, the Little Foxes has included the dramatic elements in her play, particularly the plot, character, and language that all incorporate an underlying theme of greed.


The character, which includes the physiological and psychological makeup of each person in the play, properly incorporated the greed and oppression of the time. Ben and Oscar are brothers who are possessive, scheming, and greedy individuals. These two characters make the play very interesting. Both brothers’ physiological makeup fit the play perfectly. This is because Ben tires to look like a nice guy on the outside but has only one motive that drives his character. This motive is money. He will do anything to get his cotton mill deal to go through. Then there is Oscar. He is also a lot like Ben, but on the surface not as nice. Because of these two characters, the rest of the characters feed of their hatred and ulterior motives. Another character is Leo who is a weak unprincipled son of Oscar and Birdie. This character is not emotionally strong compared to Ben or Oscar, but still has a very well written part. Birdie is then obviously Oscar’s wife. Birdie has one of the most complex characters in the whole play. Her psychological make up is very complex. Her character has very quick mood changes and subsequently does not seem like she has much power in the physiological makeup of the whole group. Next, there is Regina, who is married to Horace and a sister of Oscar and Ben. She undoubtedly has the most devious psychological makeup of all the other characters put together. She has a very cold heart towards her husband. This was the most thoroughly created character in the whole play although it was also the most troubled character. Every line that she said was written for a specific purpose and was usually only to help herself. Married to Regina is Horace. Horace’s character was a very weak and sick old man. Although his part was written beautifully, he should have been a bit wiser to what Regina was planning. He was almost too stereotypical of an old man to be interesting. For this reason, he became predicable by the end of the play. There were also two servants in the house, whose parts although small, added a real sense of the racial conflict of the time. These characters were perfectly created with their physiological and psychological attributes that added the extra tension for the time. Horace and Regina also had a daughter. Her name was Alexandra. Her character was also built really well, except that she was too passive and did not react as well as she should have while Regina mentally destroyed Horace. Lastly, there is the brief appearance of the character named Mr. Marshall. This character although very small was created extremely well. Just like Ben and Oscar, he had only one thing on his mind. Although his ulterior motive was greed, he hid that very well while he pretended to have a good time making friends with the family. Then when it came down to business, he was very keen and right to the point. Greed.


Not only are the characters created exceptionally well, but the plot of the Little Foxes was also very beautifully planed out and written with the underlying theme of greed showing up throughout it. This is a major strength of the play. This play takes place in a little picturesque home in the South of the US with a prosperous but oppressive family during the spring of 100. This is where the tension starts to build. The play starts out with a family gathering. The audience finds out at the end of this gathering that Ben’s ambition is to erect a cotton mill. Ben and Oscar have two thirds of the money and are looking for a third party to put up the rest of the money that they need. They are hoping though that the missing money will come from Horace, who was in a hospital for the past five months in Baltimore with a heart condition. After the dinner party, the men start to talk about their money problems with their sister Regina and try to get her interested in the deal. They figure that once she is hooked, that she would get Horace to come home and they would get their money. The brothers have said that they have tried to get in touch with Horace by writing him, but the letters Horace sends back never have anything mentioning the money. Regina then sends her daughter Alexandra to get her dad from Baltimore. Regina tells Alexandra that Horace is not sick anymore and is ready to come home. Although Alexandra goes, she is still real skeptic about his condition. She still doesn’t believe that Horace is strong enough to come home. Once Horace walks into the door at home, he is tormented by his relatives within the first hour about the cotton mill, but he refuses to commit his money. Desperate for the money, Leo and his father Oscar, plan for Leo to “borrow” eighty thousand dollars worth of bonds form Horace’s safe-deposit box. Leo is a banker at the bank where Horace keeps, therefore he knows where Horace’s safe deposit box is that contains all Horace’s money. However, knowing that his life would be short lived, Horace got the box brought home to him to check it out. Horace usually looks at the box only once every six months. If that were the case, then Leo could have put all the bonds back by the time that Horace was suppose to get the box because Leo would have made at least that much money back from the mill. However since Horace retrieved the box early, he discovered the theft and informed his wife that he willed the bonds to her so it would be her problem instead of his. He promises to say nothing about the theft, calling it a loan. Regina then starts talking about their painful and dysfunctional life together, causing Horace to have a very severe heart attack. Fumbling with his medicine, he drops it. Regina then refuses to get his other medicine from upstairs, hoping that the efforts of him climbing the stars would prove fatal, and sure enough, they did. Regina then blackmails her brothers into giving her 75% of the cotton mill shares for the money that Leo put up. This is instead of the brothers planned 1/%. If the brothers didn’t give her the 75%, then she would reveal the theft of the bonds. However, one final ingenious point was brought up by Ben asking Regina, “What was a man in a wheelchair doing on a staircase?” (The Little Foxes pg. 77) This ending is probably the plays biggest strength. The audience thinks that Regina will get away with her husband’s murder but then with only a few pages left Ben revels that line. Overall, the plot of this play is very well written. There is not a dull moment in the play, and all the action and every major plot point is positioned perfectly.


The Little Foxes is a very complex play, but the underlying theme is very simple - Greed and oppression. Firstly, the greed is seen from the very first scene when Mr. Marshall is at dinner with the family. Then when the men start to talk business, all anybody wants to do is to get rich. It is especially obvious for the character of Regina. She is very self-centered and greedy. This is why she watches her husband die. The main reason why Horace doesn’t want to give his money to build the cotton mill is because he’s “sick” of exploiting black people. Although he did before, Horace now feels that that it is wrong that he doesn’t want to have a part in it anymore. Horace feels that he has enough money, but Regina doesn’t care about anything except that she wants even more. Then Regina goes over the top and gets even more greedy and blackmails her own brothers for a bigger share of the mill. She attains the power to do this because once Horace died, she could then say that the bonds were stolen by Leo instead of what lent, which was Horace was going to say to save Leo the trouble. Although Leo did steal the bonds, Horace was going to say that he lent them to Leo so he wouldn’t get in trouble. Therefore, Regina now wants 75% of the mill for the money that she put up. The play’s strength is shown in this area because the underlying theme of Greed ties everything perfectly together. Although every play has an underlying theme, some are harder to see than others and therefore sometime the theme gets lost in the story. This play was well written because the theme did not get lost and there was no way that one could miss it. Secondly, the theme of oppression, although not as prominent as greed, was still there. Since the play takes place in 100, there were still parts of the south that used slavery. Since the blacks were still being oppressed in these areas there were still problems that the addressed. An example of this oppression was when Cal talked to Oscar about Oscar’s over hunting. Cal was stating how Oscar just shoots the animals and does not even take them home to eat them. He just shoots them for the fun of it, not for the necessity of food. Cal then states that the black people haven’t tasted meat since the cotton picking was over. Oscar replies by saying that if he finds any “nigger” hunting that Cal knows what would happen. In other words, the black person found hunting would be killed. The main issues of this play are greed and oppression.


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Lastly, the language of a play does not only include words, but it also includes gestures, costumes, sounds, lighting moods, intentions, and meanings that also further the theme of greed. The writing of the play is beautiful and is one of the major strengths of the play. The spoken language was written with a southern accent, which was also very well done. All the characters also speak in their different social class styles. For example, the servants speak with very poor grammar and then on the other hand, Ben or Mr. Marshall speak in a very dignified manner. Besides the spoken language, the play has many written stage direction which almost all highlight the characters’ ideas. Since though there are so many stage directions though, one has to be careful to make sure that they all further and enhance the plot of the play. The intentions and meanings of the language also came through exceptionally clear. From the very beginning of the play, the reader knows exactly what every character’s ulterior motive is and almost every character has one. Because of the very clear character makeup, this enhances all themes, meanings, and intentions of the play and characters.


Lillian Hellman, who wrote The Little Foxes, does a brilliant job of using the main dramatic elements in her play. Although there are a few weaknesses in the dramatic elements, there are not nearly enough to hinder the brilliance of the character, plot, theme, and language of the play.





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Wednesday, August 10, 2011

Comparative Essay: "Oedipus Rex" and "A Doll's House".

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In the play “Oedipus Rex” when the second messenger enters he states to Oedipus, “The greatest griefs are those we cause ourselves.” This line is the basis of the theme for both Oedipus and A Doll’s House. Even though the two plays are very different and set in different times the underlying lesson they are both addressing is the same. Both Oedipus and Nora wind up having to answer for the sins they have committed.


Oedipus is a character of grand magnitude. He is a king, rich, powerful a leader of a nation that has a plague running through it. When the play opens we learn from the Priest that “The herds are sick; children die unborn, And labor is vain. The god of plague and pyre Raids like detestable lightning through the city, And all the house of Kadmos is laid waste”. The people are looking to Oedipus for an answer that will set things right again and rid them from this curse. “Therefore, O mighty King, we turn to you; Find us our safety, find us a remedy.” It is revealed that the answer to the ills of the nation can be found by finding the man who had killed the King that preceded Oedipus as ruler. Oedipus vows to find this man and obtain revenge for the murder of his predecessor. He is unaware that the person he is seeking is himself. When Oedipus is told by the profit, Teiresias, that it is himself that he seeks, Oedipus responds by calling him a “sightless, witless, senseless, mad old man!” Oedipus is in extreme denial of his deeds. It does become clear to Oedipus that indeed he had a marriage that was based on lies and deception. He had fulfilled the prophecies and murdered his father, married his mother and he was indeed both father and brother to his children. He had a marriage that was based on a lie and when the lie surfaced it was horrific enough to cause the queen to kill herself and Oedipus to blind himself and impose on himself an exile which would cause him to give up his children forever.


Although Nora was a much simpler person who had committed crimes of much less magnitude the results of her actions were similar. She also had entered into a marriage that was based on lies. It was her covering up of her lies and her petty crime that caused her to become disillusioned with her life. She had forged her father’s signature on a promissory note and that was a criminal action. She was being blackmailed by Krogstad and when she tries to talk to her husband about this he expresses his opinion concerning Krogstad’s similar indiscretion as having “morally destroyed him”. Torvil tells Nora “Because an atmosphere of lies contaminates and poisons every corner of the home. Every breath that the children draw in such a house contains the germs of evil.” Nora has decided that she must leave her life and family.


Although the circumstances of the lives that Oedipus and Nora were living were very different, the factor that caused them to both enter into a self imposed exile away from their children was the same. Both characters were in marriages that they thought were good and living what they thought was a happy family life. Both of their illusions of happiness were toppled by the realizations that their own actions were the cause of their own and their family’s grief.


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Tuesday, August 9, 2011

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Goodman


By Justin Wray


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Justin Wray English Composition Mr. Eustis 5/8/00 The Theme of Young Goodman Brown What is theme? Theme is what the author is saying about the subject of the story. In Young Goodman Brown the subject of the story is hypocrisy. In Young Goodman Brown, Hawthorne writes in detail how hypocrisy can change a person for the worse. In the opening pages of the story you can see how hypocrisy is already starting to change Goodman Brown for the worse. As he starts out on his errand that he has to run, Goodman Brown decides to walk as Hawthorne puts it A dreary road darkened by all the gloomiest trees of the forest, which barely stood aside to let the narrow path creep through, and closed immediately behind. (141). The forest is an important symbol in this story. The forest symbolizes evil and it symbolizes evil because of the darkness of the forest. As Goodman Brown and his companion continue their journey through the dark forest Goodman Brown starts to realize this errand that he is running is no ordinary one. Goodman Brown knows that he is doing something scorned down on by Puritan beliefs as he says the following My father ever went into the woods on such an errand, nor his father before him. We have been have been a race of honest men and good Christians since the days of the martyrs. And shall I be the first of the name of Brown that has ever took this path and kept. (141). So basically what he is saying in that quote is that he knows what he is doing is wrong, but he doesnt care. Goodman Brown is hard to convince that his family and the Puritans in general are not as righteous and pure as he thinks they are. The companion tries endlessly to convince Goodman Brown that his own family is not as pure as it seems. The traveler tells Goodman some stories of his own family doing dirty things such as setting fire to an Indian Village and lashing a Quaker woman. However Goodman does still not believe any of what the traveler is saying. Continuing on the path Brown and his companion stumble upon Deacon Gookin and his Goody Cloyse and Goodman is astonished by this because he would have never thought that the good wife would be so far in the forest that late at night. By seeing the good wife in the forest at that time of night makes Goodman not want to go on. While sitting on a stump, Goodman yells out Friend, my mind is made up. Not another step wills I budge on this errand. What if a wretched old woman choose to go to the devil when I thought she was going to Heaven! Is that any reason why I should quit my dear Faith and go after her? (14) Basically he is quitting what the errand because he senses that what the companion has told him is to eat at him. In other words the hypocrisy is starting to enter his soul and he is trying to keep it from doing that by stopping the journey. Another example of what Hawthorne is saying about hypocrisy in the story is the part where Goodman hears what the Deacon says as he passes by in the carriage. Goodman is astonished by the words he hears coming from the carriage. Also Brown is amazed that the Deacon would have traveled that far into the dark and dreary forest. As Hawthorne puts it Young Goodman Brown caught hold of a tree, for support, being ready to sink to the ground, faint and over-burthened with the heavy sickness of his heart. He looked up to the sky doubting whether there really was a Heaven above him. (144) Basically Goodman cannot believe what he just heard from the leaders of the Religion of the puritans; he is amazed that impurity lies within the most religious people of the Puritans. It makes him believe what the companion told him about pureness. Seeing all of this makes him say that if no one else wants to stand true to the beliefs of the puritans, not even the Deacon himself, then he was going to be the one who does. Moreover witnessing all of that Goodman finally understands that purity is no longer what all mankind strives for. As Brown stands their he looks up to see what was once a blue sky has suddenly turned gray. This Gray sky symbolizes the impurity or hypocrisy that has taken over the earth. Goodman also hears sounds from the cloud, which also represent deceit and wickedness. Goodman is really bothered by this and he says, My Faith is gone there is no good on earth, and sin is but a name. Come Devil! for to thee the world given. (145). All Goodman is saying is that the devil can come and take over the world because it is full of sin and wickedness. In the same way as the others who have given into hypocrisy Goodman himself now gives into the hypocrisy. Hawthorne writes, In truth all through the haunted forest there could be nothing more frightening than the figure of Goodman Brown. This is Hawthorns cunning way of saying that Goodman he turned for the worse Brown has now at this point done a complete 60 of his usual pure ways and runs around the forest making obscene gestures and terrible remarks. Hypocrisy has swamped Goodmans soul to the point where he has a dream that these couples gets converted from Christians to Devil Worshipers and are encouraged to not to look to God but look to the Devil for Guidance and follow the ways of the devil. Hawthorne writes a line to show my point, Faith! Faith! look up to Heaven, and resist the Wicked One! So in other words dont look to god is what Hawthorne is saying. In conclusion Young Goodman Brown is a story about hypocrisy and how it came corrupt the purest of peoples minds if they choose to let it in. This story also shows that even though puritans all may act pure on the outside, they arent really as pure as everybody makes them out to be .


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Buyer's Right to Withhold Performance and Termination [Avoidance] of Contract under the UN Sales Convention

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1. Withholding Performance


1.1 Introduction


1.1.1. Concept of the Right


Withholding performance under the Convention, as in English law, means that the buyer is entitled to refuse to perform his obligation without being required or even being entitled to terminate [avoid] the contract. Obviously, if the requisites for the latter remedy are met and the buyer, before fulfilling his obligations, has declared the contract avoided in accordance with Arts. 4, 51, 7 or 7 of the Convention, he is no longer obliged to perform his obligations (Art. 81(1)). But such requisites may not be met or the buyer may not wish to declare the contract terminated, but rather demand goods fully conforming with the contract.


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In the provisions regulating the buyers remedies for sellers breach, although the Convention gives specific rights to withhold performance in certain cases, it does not make a general statement that the buyer is entitled to withhold performance of his obligations. The question is, therefore, whether the buyer has a general right to withhold performance of his obligations under the contract where the seller has performed his delivery obligations in a way which does not correspond with the contract or the Convention.


In this respect, some commentators have tried to infer from the Conventions provisions that the buyer should be given a general right to refuse to take delivery. But it seems that they have failed to distinguish between the buyers right to refuse to recognise goods the seller delivers as the contract goods and his right to refuse to take delivery and, consequently, they have relied on the provisions which concern the former rather than the latter. It is probably for the reason that the Convention does not expressly impose, as English law does, on the buyer a duty to accept what the seller delivers as the contract goods. It is, however, proposed to examine these two possible rights separately. Although in practice both may often arise at the same time, in some cases, the right to refuse to accept arises where the buyer has already performed his duty to take over the goods as defined in Art. 60.


1.1.. Importance of the Right


From the buyers point of view, the existence of the right to refuse to recognise the goods offered as the contract goods seems important, since the buyer will thus be entitled to resort to the remedies provided under Art. 46() or (). But what significance follows from the right to refuse to take delivery? It seems that the existence of the right to refuse to take delivery would also be significant for the buyer, not only in respect of the link between delivery and payment (Art. 58(1), ()), but also in regard to the passing of the risk (at least where the case falls into the scope of Art. 6). That is to say, as long as the seller does not deliver the goods in accordance with the contract and the Convention, the buyer can refuse to take delivery and thereby return the risk to the seller. The seller would face delay, and in order to avoid the undesirable consequences of delay, he would strengthen his efforts to perform. Since taking delivery and payment of the price generally are linked, the buyer would have the further advantages of paying later and not for non-conforming goods, for the seller who wants to obtain payment must take action against the buyer.


More importantly, the right will be significant where the seller fails to fulfil his obligations with respect to the place of delivery (Art. 1), or to specify the goods by notice (Art. (1)). The significance of the right is for the reason that the remedy prescribed under Art. 46(), () does not apply here, since it only relates to the sellers obligation to deliver conforming goods under Art. 5 and probably Arts. 41 and 4. In such cases, if the buyer has such a right he can refuse to take delivery and subsequently require performance according to Art. 46(1), and fix an additional period of time in accordance with Art. 47(1).


The remedy will also be significant for the buyer where the seller partially or fully fails to perform his obligations relating to the quantity, quality and other description required by the contract (Art. 5) or fails to fulfil his duty under Arts. 41 and 4, that is where the goods delivered are not free of the rights or claims of third parties. In such cases, the right to refuse to take delivery would be useful for the buyer where he wishes to require the seller to repair the non-conformity under Art. 46(). In such situations, the buyer can, if he is entitled, by turning the risk of the goods to the seller persuade him to cure the non-conformity as quickly as possible. Accordingly, in the case of the sellers failure to deliver goods in accordance with Arts. 5, 41 and 4, the buyer is not required to take delivery of them in order to have them cured later, but he can refuse to take delivery until cure is made.


Having considered the concept and importance of the remedy, the following discussion will try first to answer the question whether the Convention has recognised a general right to withhold performance and then to ascertain how the given right will work in different types of failure by the seller to perform his obligations.


1.. Withholding Performance as a General Right?


A close examination of the Convention provisions clearly shows, it is suggested, that the Convention has recognised the right to withhold performance for an aggrieved buyer in some occasions. However, in some cases the Convention has expressly applied the rule and in others it has impliedly recognised it.


1..1. Prospective Non-Performance


The Convention has expressly applied the right to withhold performance in Art. 71(1) under the heading of the right to suspend the performance of obligations. Under this provision, whenever it is apparent that a party, say the seller, will not be able to deliver goods or documents, the buyer is given a right to suspend the required steps leading to payment, such as the establishment of a letter of credit (Art. 54). However, the provision comes into operation only where it becomes apparent that the seller is about to commit non-performance of a substantial part of his obligations; it does not concern where the seller has performed his delivery obligations in a way which does not correspond with the contract requirements.


For the provision to be applied, certain requirements are to be satisfied.


First, the inability to perform must be apparent after the conclusion of the contract. If it was already apparent at the time of making the contract that one party would not be able to perform, the other party is not entitled to suspend his obligations.


Second, the appearance of prospective failure to perform must be caused by either a serious deficiency in the ability to perform, or in creditworthiness, or by conduct in preparing to perform or actually performing the contract (Art. 71(1)(a) and (b)).


Third, the expected failure must relate to a substantial part of the obligations of the party who is about to commit the breach. There is, thus, no right to suspend where the prospective breach only relates to a minor part of the obligations.


1... Actual Non-Performance


The right to withhold performance is also impliedly recognised by Art. 58(1) of the Convention. Under this provision, where the contract is silent as to the time of payment, the buyer is under the duty to pay only when the seller places the goods or the documents controlling their disposition at the disposal of the buyer. Hence, where the seller has failed to place the goods or documents at the buyers disposal, the latter is entitled to refuse to pay as long as the sellers failure continues.


Similarly, it seems that the Convention has also accepted the right to withhold performance where the seller has delivered non-conforming goods. In that event, the buyer is impliedly given a right to refuse to recognise the sellers non-conforming delivery as a conforming delivery. The buyers entitlement to refuse to accept the sellers non-conforming delivery can be inferred when it is proved that under the Convention the buyer is under a further duty to accept what the seller delivers in performance of the contract. The Convention provides no clear provision for this purpose. It simply provides The buyer must pay the price for the goods and take delivery of them as required by the contract and the Convention (Art. 5).


What is certain is that recognising the goods delivered as conforming to the contract is not the same as taking delivery, or even taking over the goods as prescribed by Art. 5. The duty to take delivery is defined by Art. 60. Under this Article the buyers duty to take delivery consists of two elements The first element is that he must do all the acts which could reasonably be expected of him in order to enable the seller to make delivery. For example, if the contract requires him to arrange for the carriage of the goods (as is often the case under the terms of an f.o.b. contract), he is bound to make the necessary contracts of carriage in order to enable the seller to deliver (hand the goods over to the first carrier for transmission to the buyer (Art. 1(a)). The second element of the buyers duty to take delivery is to take over the goods. It is the case where the seller is bound under the contract to make delivery by placing the goods at the buyers disposal at a particular place or at the sellers place of business (Art. 1(b) and (c). In such cases, the buyer will be regarded as having taken delivery when he has physically removed the goods from that place.


As is seen, taking delivery, as defined under Art. 60, is not inconsistent with the case where the buyer has done all the acts which enabled the seller to make the delivery but the buyer is nonetheless required to accept the goods in the sense that he is not allowed to reject them. This is where the buyer after receiving the goods when examining them (Art. 8) has realised that they are in conformity with the contract and the Convention. Accordingly, taking delivery does not include what is called here the duty to accept the goods. Under this interpretation, the buyer is under two separate duties to take delivery of the goods and to accept (not reject) them if they are in conformity with the contract.


This duty is clearly inferable from the provisions of Arts. 46() and 4(1)(a). The first provision gives the buyer a right to require the seller to tender replacement goods, and the second entitles him to avoid the contract provided that the sellers breach amount to a fundamental breach. Similarly, Art. 46() enables the buyer to demand that the seller repair the lack of conformity where it is reasonable having regard to all the circumstances. Beyond these circumstances, the buyer is not entitled to resort to these remedies but he has to accept them as the contract goods, otherwise he will be in breach of the contract. Accordingly, the buyer is under the duty to accept the sellers delivery where the lack of conformity does not fall into the foregoing circumstances.


Assuming that the buyer is under a reciprocal duty to accept the sellers delivery where it accords with the contract and the Convention, he will be entitled to refuse to accept where it does not conform to the contract terms and the Convention. This right not only corresponds with commercial practice, but can clearly be inferred from the provisions allowing the buyer to require the seller to tender substitute goods or to repaire them (Art. 46() and ()). These provisions, by allowing the buyer to require the seller to make a fresh tender or cure the non-conformity by way of repair (as the case may be) where the seller has delivered goods which do not conform with the contract and this Convention, presuppose that the buyer is entitled to refuse to accept them as the contract goods. Accordingly, it is quite possible for the buyer to retain his right under Art. 46(), () after having taken delivery or taken the goods over. This is the reason why Art. 86(1) speaks of the buyers right to reject after he has received the goods from the seller.


1... Early or Excessive Delivery


A further application of the right to withhold performance can be found under Art. 5. Under this provision, where the seller has made an early delivery, the buyer is entitled to refuse to take delivery of such a delivery (Art. 5(1)). He is also given a right to refuse to take delivery of the excess quantity where the seller has delivered greater than the contract quantity (Art. 5()).


1..4. Buyers Right to Refuse to Take Delivery as a General Remedy


Although the refusal to take delivery under this Article is mentioned in the catalogue of the buyers remedies in Art. 45, it can only be exercised in reference to the special case of early or excess quantity delivery under Art. 5. No clear provision is provided by the Convention to determine whether the buyer is entitled to refuse to take delivery of the goods delivered to him by the seller where they do not accord with the contract terms and the Convention, such as the cases where the seller has failed to perform his duty under Arts. 1, (1), 5, 41 and 4.


Some commentators, as already pointed out, have suggested that such a right, to some extent, can be inferred from the interpretation of the relevant provisions of the Convention. In justifying the view, they argue that this rule can be inferred not only from the express granting of that right under Art. 5 for cases of early delivery and delivery of excess quantity, but also from the fact that Art. 86(1) presupposes the existence of a right to reject. The advocates of the existence of this general remedy have also resorted to the link between payment and delivery (Art. 58(1), ()) and the right of the buyer to examine the goods under Art. 58(), and to Arts. 46(1) and 47(1) by saying that they are at least consistent with the assumption of the buyers right to refuse the taking delivery under certain conditions.


However, it seems that, although the view can be supported under the Convention, the provisions referred to above do not help to establish such a rule. This is because, first, although the first paragraph of Art. 5 can be relied on for this purpose, it is only applied to the case of early delivery. The second paragraph is entirely irrelevant. It simply provides that the buyer can refuse to accept the sellers offer of an extra quantity where he has delivered a quantity of goods greater than that provided for in the contract. It does not say that the buyer is entitled to refuse to take delivery of the whole goods the seller has delivered as contract goods. Secondly, Art. 86 presupposes that the buyer who has received the goods which do not correspond with the contract requirements is entitled to reject them. Such a statement, as indicated previously, is consistent with the principle that he can refuse to accept them as contract goods, not that he is entitled to refuse to take delivery which this Article presupposes has taken place in advance. This is the reason why these two Articles used different terminologies.


Nevertheless, it can be said that the Convention has impliedly recognised a right to refuse to take delivery for an aggrieved buyer under certain circumstances. This rule is inferable from taking into consideration the question in the light of the principles of the Convention upon which it is based. Under these principles, it might be concluded that the buyer is not obliged to take delivery where the sellers delivery is not in conformity with the contract and the Convention. For it is one of the principles of the Convention that the seller has to deliver in full conformity with his obligations and the buyer is only required to take delivery of such a performance. This principle can be inferred through the examination of the relationship between the main duties of the parties under the Convention. The essential duties of both the seller and the buyer, i.e., delivery, taking delivery of the goods and payment of the price, are provided by Arts. 0 and 5 of the Convention. Although the relationship between the buyers duty to take delivery and the sellers obligation to deliver goods is not expressly defined by the Convention, it seems that these two duties are interdependent. Some commentators have argued that such a relationship can be inferred from Art. 58(1) and () by saying that this Article qualifies the buyers duty to pay the price to the condition that the sellers delivery is to be in accordance with the contract and the Convention. However, it seems that Art. 58 is provided only to state that the sellers duty to deliver and the buyers duty to pay the price are concurrent obligations and they are to be performed at the same time when the contract is silent as to the time of payment. It is not intended to define the main duties of the parties. The main obligations of the parties are defined by Arts. 0 and 5. Although these two Articles do not expressly refer to each other, it is suggested that they must be read in connection with each other. Thus, the seller is obliged to deliver the goods, provided that the buyer is ready and willing to pay the price for the goods and take delivery of them as required by the contract and this Convention, and the buyer is bound to pay and take delivery, provided that the seller is ready and willing to deliver the goods as required by the contract and this Convention. Accordingly, the buyers duty under Art. 5, i.e., taking delivery and paying in exchange for the sellers delivery, is conditioned by the qualification that the sellers delivery conforms with the terms of the contract and this Convention. In accordance with this interpretation. the buyers duty to take delivery and pay the price under Art. 5 may be re-phrased as follows


It is the buyers duty to take delivery of goods delivered to him by the seller provided they are delivered in accordance with the terms of the contract and this Convention.


On this interpretation, where the seller has delivered goods in a way which does not conform with the contract terms and the Convention, the buyer is not in principle bound to take delivery of them. In more clear words, as long as the seller has not fulfilled his duty to deliver in accordance with the contract and the Convention, the buyers duty to take delivery has not indeed arisen. He is, therefore, under no obligation to perform his duty to take delivery under Art. 5.


1..5. Grounds for the Right


In the absence of an express statement by the Convention, in describing the right, its legal basis must be identified by interpreting the provisions of the Convention and taking into account the general principles upon which it is based. As pointed out above, the Convention, when supplying the provision regulating the timing of the performance, has at least implicitly referred to the interdependence of the sellers obligation to deliver and the buyers duty to pay. In that case, Art. 58(1) provides that the buyer, unless otherwise agreed, must pay the price when the seller places either the goods or the documents controlling their disposition at the buyers disposal in accordance with the contract and this Convention. It seems that this sub-paragraph intends to state that the sellers obligation to deliver the goods and hand over the documents controlling their disposition and the buyers duty to pay the price are tied together so that failure of one party to perform his duty would entitle the other to rely on the rule. A close examination of Arts. 46, 5, 58 and 71 of the Convention leads one to the conclusion that the Convention has based the right to withhold performance on the theory of reciprocal obligations. It is under this rule that the obligations are to be exchanged for each others performance at the same time, and refusal of one party justifies the other partys refusal to perform as long as the defaulting party continues his refusal.


The question which arises here is What degree of lack of conformity enables the buyer to refuse to perform his duty to accept and take delivery of the goods? No clear provision can be found under the Convention for this purpose. It can be said, however, that since the buyer by refusing to accept and take delivery of the non-conforming performance simply refuses to perform his counter-obligation, his option to do so need not be based on a showing of fundamental breach. He is only required to demonstrate that the sellers delivery is not in accordance with the contract and the Convention. This is because the right of refusal is based on the theory of reciprocity of the parties obligation rather than the theory of fundamental breach. However, in granting the right to refuse, one cannot be generous. Accordingly, the substance and the limits of the right to refuse to accept and take delivery have to be determined in detail according to the system of the buyers remedies under the Convention. The proposition would not, therefore, be acceptable that the goods should be in conformity of the contract in every aspect, otherwise there shall seemingly be a right of refusal. Such a broad proposition seems to undermine the system of remedies prescribed by the Convention. In one case, the Convention has referred to the criterion upon which the buyer may withhold performance (Art. 71(1)). In that case, it provides that the buyer will be entitled to do so where the sellers non-performance relates to a substantial part of his obligations. However, it is not clear what lack of conformity will enable the buyer to refuse to accept the goods in the case of delivery of non-conforming goods. It seems that the buyer is certainly not entitled to refuse to accept the goods for minor non-conformity. This right may be available for him where the sellers failure to perform his obligations in accordance with the contract terms and the Convention has attained a certain degree of seriousness. Close consideration of Arts. 46(), () and 71(1) of the Convention supports this restriction. Moreover, it accords with the principles of good faith (Art. 7(1)) and mitigation (Art. 77).


1.. Special Cases


1..1. Partial Delivery and Partial Non-Conforming Delivery


Although Art. 5() entitles the buyer to refuse to take delivery of the excess quantity, it does not make clear whether the buyer has the right to refuse to take delivery where the seller delivers less than the contract quantity. It could be argued that according to the principles already dealt with, the buyer can refuse to perform his obligations on account of the sellers partial non-delivery. The view can also be supported by the fact that short delivery gives the buyer the right to terminate the contract in its entirety in certain circumstances (Art. 51() which includes the right to refuse to perform his obligations insofar as this has not taken place. The same logic justifies the buyers right to refuse to perform until complete delivery in conformity with the contract is offered.


A further question is Does the buyer have the option to refuse to perform in respect of the missing part or non-conforming part where the seller has delivered goods some part of which conform with the contract? Art. 51(1) seems to enable the buyer to treat the missing and the non-conforming part (as the case may be) as the subject of separate contracts for the purpose of remedy and to resort to his remedies under Arts. 46-50. But those provisions do not include such an option. Can the buyer treat the missing or non-conforming part as the subject of a separate contract for the purpose of the right to refuse to perform for the proportion of the missing or the non-conforming part? Since he is entitled to terminate the contract with respect to the missing or the non-conforming part if the requirements of fundamental breach or Nachfrist notice procedure are satisfied, it can be said, by analogy, that he is entitled to refuse to perform the contract to the proportion of the missing part. The view can also be supported by Art. 58(1) which provides that the buyer is not bound to pay only when the seller places the goods at the buyers disposal in accordance with the contract. By analogy, the same rule is applicable where only part of the goods is in conformity with the contract. The same rule would be applicable to an instalment where the seller has delivered a defective instalment, since Arts. 51 and 7 are in fact concerned with a similar case, i.e., where the contract is severable.


1... Tender of Non-Conforming Documents


Although the Convention has referred to the sellers duty to deliver goods and documents in accordance with the contract terms (Arts. 0 and 4), it does not deal properly with the issue. It is therefore not quite clear whether the buyer has two separate rights to refuse to accept non-conforming documents and goods, and if so, what relation there is between these two rights. It appears that the issue must be examined according to the same principles as elaborated for goods.


According to the principles explained above, it seems that where the seller fails to tender the shipping documents, the buyer is entitled to refuse to pay the price, since where the contract does not specify otherwise, the buyer is under the duty to pay the price only when the seller places the ... documents controlling their disposition at the buyers disposal (Art. 58(1). In other words, the sellers duty to hand over the documents controlling the disposition of the goods at the buyers disposal and the buyers duty to pay the price are to be fulfilled at the same time. However, it seems that the rule prescribed under Art. 58(1) would not be applicable to all shipping documents, since the Convention qualifies the non-defaulting buyers right to withhold performance of his obligation to pay the price with the qualification that the documents should be those controlling their disposition. Accordingly, the sellers failure to tender documents which lack this qualification is to be placed within the category of defective delivery rather than non-delivery.


Where the seller tenders documents which do not correspond with the contract requirements, the buyer is not required to take delivery and pay the price in exchange for such documents, since, as the last phrase of Art. 0 and Art. 58(1) provides, the seller must tender documents which are in conformity with the contract, otherwise the buyer is not obliged to accept and pay for them. Furthermore, it seems that the right to refuse to take over the documents could be inferred from the obligation of the seller under Art. 4. Under this Article, the seller is obliged to hand over the documents at the time and place and in the form required by the contract. In addition, rejection of non-conforming documents is a well-accepted customary law which is to be given effect under Art. . Accordingly, where documents tendered by the seller do not show the respective conditions in respect of the goods and documents, the buyer would be entitled, under some circumstances, to refuse to accept them.


Rejection of Goods and Documents. From the preceding discussions it has been made clear that the Convention allows the buyer to reject defective documents. However, it contains no clear provision to regulate the case where the subject of the documents is defective. Does the buyer have a further right to reject the non-conforming goods when they are landed?


It seems that since the sellers duties to deliver the goods and the relevant documents are two separate obligations (Arts. 0-4), breach of each would give rise to a separate right to refuse to accept. Accordingly, the buyer should be given the right to refuse to accept the goods when they arrive. He should also be entitled to reject documents which do not comply with the contract even though the goods themselves are perfectly in accordance with the contract.


On the above interpretation, the question arises whether the right of rejection of non-conforming goods is impaired by the acceptance of the documents. What is certain is that where the given defect is reflected on the documents, the buyers acceptance may be treated as a waiver of his right to reject for the defect in the goods. But where the buyer accepts the documents, for example, a bill of lading, which turns out to have been falsely dated, it would not, it seems, prevent him refusing to take delivery of the goods on discharge from the ship. Although, the question is not expressly addressed by the Convention, it can be argued that, under the Convention, the buyer would lose the right to rely on the lack of conformity of the goods only if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he discovered it or ought to have discovered it (Art. (1)). Therefore, he can rely on an unspecified defect if at the time of acceptance he had neither knowledge nor means of knowledge of it. He can also rely on the non-conformity of the goods, even if at the time of acceptance of the documents with a minor defect he had neither knowledge nor means of knowledge of another defect in respect of the goods.


. Termination [Avoidance] of Contract


.1. Introduction


In the preceding part, it was seen that the Convention has given the buyer a right to withhold performance of his obligations as long as the seller has not fulfilled his delivery obligations in accordance with the contract and the Convention. This remedy, as already indicated, is distinguishable from the remedy of termination [avoidance] in terms both of the ground on which it is available and its effects. Withholding performance is based on the theory of reciprocity of obligations and will be justified where the lack of conformity is not minor, while termination is primarily based on the doctrine of fundamental breach. Termination, as will be seen below, will bring the contract to an end, while withholding performance will not affect the legal existence of the contract.


The following discussion first examines the circumstances in which the buyer will be entitled to terminate the contract for the sellers non-conforming delivery and then addresses the mechanism of exercising the right and the circumstances in which the buyer may lose his right to terminate. Finally, it takes a short look at the effects termination may have on the rights and liabilities of the parties.


.. Grounds for Termination


General Review. As a general rule, the Convention grants an aggrieved buyer the right to declare the contract terminated provided that the failure by the seller to perform any of his obligations amounts to a fundamental breach of contract as defined in Art. 5. However, the buyer may also be entitled to terminate the contract without being required to rely on the doctrine of fundamental breach. This possibility arises where the buyer resorts to the provision authorising him to request the seller to perform within a specified additional period of time of reasonable length (commonly referred to in the literature as the Nachfrist notice) (Art. 47). As will be seen, failure to comply with this request may be regarded as another ground upon which the buyers termination may be justified (Art. 4(1)(b)).


..1. Fundamental Breach


..1.1. Significance and Concept of the Test


Fundamental breach is one of the pillars of the Convention because various sanctions available to the buyer and seller, as well as certain aspects of the passing of risk, depend on this concept. Above all, the concept of fundamental breach is a key to the system of termination under the Convention. The Convention in several places bases the buyers right of termination on the fundamental breach test. Accordingly, the main question is What is fundamental breach? Art. 5 of the Convention defines it in the following terms


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, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.


In international sale contracts, it is a fresh legal concept, born from compromise and open to different interpretations. It should therefore be interpreted in its own context by taking into account the legislative history of its development.


..1.. Elements Constituting the Test


Art. 5 of the Convention sets up two major criteria for defining fundamental breach. First, the breach must result in a detriment to the innocent party; second, it must substantially deprive the innocent party of what he is entitled to expect under the contract. The last phrase of the Article also provides for the party in breach an avenue to escape from the drastic effects of his breach, if he can prove that he did not foresee (or could not have foreseen) the consequences of his breach. Meditation over the key words of definition employed in Art. 5 detriment, substantial and foreseeability, gives rise to some constructive questions What is detriment? What detriment is substantial? and When is the foreseeability test applied?


(I) Detriment. The first foundation for a breach being fundamental is that it must cause the non-breaching party detriment. The Convention itself does not contain any definition of the term detriment. Nor does it give any example of detriment that rises to the level of a fundamental breach. Confronted with such a newcomer word in the field of international sale, commentators have taken diverging views in its interpretation.


In the absence of precise definition, it seems that the term must be interpreted in light of the Conventions legislative history as well as its intended purpose. The legislative history of Art. 5 shows that the test developed out of the debate over the weaknesses of the 164 Uniform Law on the International Sale of Goods (hereinafter, ULIS)s criterion for defining the fundamental breach doctrine. The draftsmen, in avoiding the difficulty of subjectivity of the ULIS test, accepted the detriment criterion so as to present an objective test for determining the fundamentality of the breach. But the history of the word detriment is short. It was proposed in the sixth session of the UNCITRAL Working Group in 175, and was retained in the 178 Draft proposal. The nature and concept of the term has not been examined, either during the UNCITRAL Working Groups sessions nor in the 180 Diplomatic Conference. The only thing said with respect to the term detriment was that the Working Group report was quoted as pointing out the advantage of stressing that the term detriment had to be interpreted in a broader sense and set against the objective test of the contents of the contract itself.


However, an unofficial commentary by the UNCITRAL Secretariat on Art. of the 178 Draft Convention may provide some guidance as to the meaning and application of this term. The Secretariat Commentary stated that [t]he determination whether the injury is substantial must be made in the light of the circumstances of each case, e.g., the monetary value of the contract, the monetary harm caused by the breach, or the extent to which the breach interferes with other activities of the injured party. From this comment, it is possible to conclude that the drafters intended the word detriment to be synonymous with injury and harm, and it can also be exemplified by monetary harm and interference with the other activities.


The term can be further clarified by considering its purpose. The purpose is simply to allow the injured party to terminate the contract, demand substitute goods, or to prevent the risk of loss from passing to the buyer. These purposes, as will be seen later, clearly require a broad sense which is beyond the realm of compensation for damages. Accordingly, keeping in mind both its history and purpose, the term has to be interpreted in a broad sense and any narrow construction must be excluded.


(II) Substantial Deprivation. The second major requirement for a breach to be regarded as fundamental is that the detriment caused by the breach must have some degree of seriousness so that it substantially deprives the victim of breach of what he is entitled to expect under the contract. Unlike the nature of detriment, which was not much at issue either by UNCITRALs Working Group or in the Diplomatic Conference, the degree of its effects was and still is controversial. In this connection, the first question is What criteria should be applied to determine whether the detriment sustained by the victim of breach has resulted in fundamental breach?


The legislative history of the provision shows that it was controversial. Examination of the legislative history of Art. 5 shows that it was first suggested that to ascertain whether breach was fundamental, it should have been proved that the detriment caused by the breach was substantial and the Committee welcomed that proposal and inserted it into the definition of fundamental breach. In the Diplomatic Conference, however, the debate on the words substantial detriment to the other party was extensive. Some delegations labelled it something between vague, subjective and objective and flexible. The main objection to the substantial criterion was that substantial as an adjective caused as much uncertainty as fundamental itself, and, therefore, required an objective yardstick. Various proposals were offered for this purpose. Eventually, in order to reconcile the different proposals, it was decided that for a breach to be fundamental, it must result in such detriment as substantially to deprive the victim of breach of what he is entitled to expect under the contract.


However, in relying on the phrase the buyer was entitled to expect, one should be careful. It does not mean that the only criterion for this purpose is the buyers expectations from the contract, as the language of Art. 5 seems to suggest. His expectations are qualified by the last phrase what he is entitled to expect under the contract. It seems that this limitation introduces an important qualification and ensures that it is not solely the buyers expectations which are relevant. The buyer is clearly entitled to expect to receive the performance promised by the seller, but since this depends on the sellers contractual undertaking, it is defined as much by the sellers expectations as by the buyers. Thus, suppose that the buyer is deprived of the opportunity to obtain a particular benefit he expected to receive from the sellers performance but of which he has not informed the seller. Can it be said that the buyer is entitled to expect that benefit under the contract? Moreover, as will be seen in detail, the test of the buyers expectations is further limited by the qualification, which takes account of what the seller could reasonably foresee. This makes clear that if the buyer is deprived of a benefit which the seller could not foresee and could not reasonably be expected to foresee, the breach is not fundamental. Accordingly, the degree of the requisite substantiality of deprivation caused by detriment must be ascertained within the framework of the amount of detriment incurred by the buyer in respect of those expectations required under the contract. The legitimate expectation interest test of Art. 5, as described above is, therefore, the only criterion in determining whether or not deprivation is substantial.


The question which arises here is whether the only source for the buyers expectation interests is the terms of the contract, as the language of Art. 5 shows where it says he is entitled to expect under the contract -- which in principle refers to all the terms of the contract whether express or implied. Does it mean that any other circumstances of the case are not to be taken into account? The question came into view at the Vienna Conference when the German delegation proposed to amend the draft Art. on fundamental breach so that the determination of whether or not a detriment was substantial would have been determined by the express or implied contract terms themselves. This amendment was criticised by a number of representatives as too narrow. A substantial number of delegations suggested that the court has to examine the terms of the contract as well as the surrounding facts. It was on this general understanding that the text accepted by the Conference referred to the phrase what he is entitled to expect under the contract.


On this interpretation, the extent to which a party suffers an injury to its expectations will, therefore, be found not only in the language of the contract but in the circumstances surrounding the contractual relationship of the parties. However, it does not mean that the assessment of the existence of substantial detriment will depend on the circumstances of any individual case, even those circumstances take place after the time of making the contract. If some particular circumstances are significant for a contracting party, he should bring them into the other partys attention at the time of contract. Accordingly, it is fair to say that the Convention has not left the determination of the degree of a given detriment, and drawing the line between substantial and insubstantial deprivation, to the judges sole and sovereign appreciation, but requires him to decide in the framework of the contract and the circumstances that existed at the time it was made.


After all above, the main question still remains; At what point does deprivation resulting from detriment reach the threshold of substantial deprivation? The Convention has failed to introduce any concrete factors to guide the judge to decide whether the detriment sustained has attained the sufficient degree of substantial deprivation. The Convention seems to have left the question of determining the sufficient substantial deprivation of the buyer from his contractual expectations to the arbitrators to decide in the light of the circumstances surrounding any particular case. In any case, the court should decide the case by taking into account the value of the goods, the purpose for which the buyer has purchased the goods, and the degree of actual and prospective detriment caused by the breach, and other interference caused by the breach into his activities.


(III) Foreseeability. The foreseeability test in the final conditional clause of Art. 5 constitutes a further qualification. Although the sustained detriment which resulted in substantial deprivation prima facie makes breach fundamental, a breach will not be fundamental if the seller can rely on the last sentence of Art. 5.The legislative history of Art. 5 reveals that the burden of proving foreseeability of loss was originally on the party in breach. The 176 Draft Convention put the onus on the aggrieved party both to show that the breach of contract resulted in a substantial detriment to him and that the party in breach foresaw or had reason to foresee such a result. The Philippines delegate to UNCITRAL subsequently objected that this formulation was unfair to the injured party and that the burden should not rest on him to show that the breaching party ought to have foreseen the result of his conduct. In the light of this objection, the wording of the definition was amended at the 177 session of UNCITRAL so as to require the defaulting party to show that he could not reasonably have foreseen the consequences of his breach. At the Vienna Diplomatic Conference, the Egyptian delegation sought to amend the Draft Art. on fundamental breach by including express language indicating a shift in the burden of proof. The drafters refused to include the language which would raise questions of civil procedure. However, there was a consensus that this burden should be on the party in breach because of the logical difficulty of requiring the non-breaching party to prove what the party in breach actually foresaw or a reasonable man in its position could have foreseen.


The concept of foreseeability developed out of Art. 10 of ULIS which completely based fundamental breach on the foreseeability of events. Art. 5 of the present Convention, however, adds an objective test into the determination of whether a breach is fundamental by asking two questions (1) Did the party in breach foresee that the breach of contract would result in a substantial deprivation of the non-breaching party; and () Would a reasonable person of the same kind in the same circumstances have foreseen such a result. These two questions will require the court to view the contract from the subjective perspective of the party-in-breach, as well as from the objective perspective of a reasonable merchant of the same kind in the circumstances of the party in breach. These subjective and objective elements are cumulative, not alternative. The outcome is that a breach would be regarded as non-fundamental only where courts or tribunals are satisfied that both elements are proved.


The first requirement for negativing the claim for breach under Art. 5 is whether or not the party in breach actually foresaw the harm caused by the given breach. Whether the detriment caused by the breach was actually foreseeable by the seller depends on his knowledge of the facts surrounding the contract. In this respect, as some commentators suggested, factors such as the sellers experience, level of sophistication, and organisational abilities should be considered in showing whether or not the harm in question was foreseeable. In the light of such factors, the court may be satisfied that the seller was able to anticipate and recognise problems in the transaction. However, this requirement is a purely subjective one which focuses solely on the personal position of the breaching party. Certainly, any party who has committed a breach of contract resulting in serious consequences will hardly accept that he foresaw those consequences, but will most likely insist that, unfortunately, he did not foresee, as the Article describes it, such result. The mere allegation, however, does not suffice but, as explained above, the party in breach must prove his allegation.


In this connection, Art. 5 provides a further requirement. This is an objective test requiring the party in breach to show that a reasonable person of the same kind in his circumstances would not have foreseen that the given default would have caused the injuries in question to the innocent buyer. Since parties to international sales contracts are presumed to be merchants, a reasonable person can be construed as a reasonable merchant. A reasonable merchant would, therefore, include all merchants that satisfy the standards of their trade and that are not intellectually or professionally substandard. The features that may characterise reasonable merchants include


(1) The merchants degree of skill and professional qualifications (for example specialised licenses);


() The merchants professional associations or affiliations which may set competency standards;


() The length of the merchants business experience; and


(4) The geographic region in which the merchant does business.


The phrase of the same kind is the first element of precision intended to mitigate the effects of subjectivity of the first criterion of foreseeability. The meaning of the phrase has to be apparently inferred from the purpose of the clause. It is, as Professor Will suggested, provided to tailor a reasonable person to the likeness of the party in breach. The hypothetical merchant ought to be engaged in the same line of trade, doing the same function or operations as the party in breach. Not only must business practices be taken into account, but the whole socio-economic background as well, including average professional standards.


A further element is also provided by Art. 5 for the purpose of precision. Under this requirement, the court must take into account the reasonable merchant in the same circumstances, in which the party in breach was. By this requirement, the court should take into account conditions on world and regional markets, legislation, politics and climate ... in short [the] whole range of facts and events at the relevant time.


As was seen, a party alleged to be in breach thus has a difficult burden, but if he can show that he did not foresee the drastic effects of his default, and can prove that a reasonable merchant facing the same market conditions would not have foreseen such results, then the party claiming breach will not be able to rely on the sellers breach for termination.


Time for Foreseeability. The other issue that arises out of the definition of Art. 5 is At what time is the foresight of the party in breach to be judged? Is the relevant time when the contract was concluded or when the breach was committed, or does it depend on the circumstances of each case? Unlike Art. 10 of ULIS which was quite clear that the time point should have been the time of the conclusion of the contract, the language of Art. 5 does not expressly answer the question. This ambiguity has generated a substantial literature.


It seems that, like the other issues, it would be helpful to analyse the present issue in the light of legislative history of the provision. In the UNCITRAL Working Groups sessions and at the 180 Vienna Conference, some delegates proposed that this element be amended to restrict consideration to those circumstances that the party in breach could have foreseen when the contract was made. In UNCITRALs final [177] review of the sales provisions, one delegate proposed to limit the time for foreseeability to the time of the conclusion of the contract. Under another view, it was thought that it would be fairer to refer to the time at which the breach was committed. The decision was recorded as follows The Commission, after deliberation, did not consider it necessary to specify at what moment the party in breach should have foreseen or had reason to foresee the consequences of the breach. Finally, the UNCITRAL Draft Convention after some discussion preferred not to specify that point, thus leading the Secretariat Commentary to note that in case of dispute, that decision must be made by the tribunal.


As has been seen, the general understanding of the issue prior to the Vienna Diplomatic Conference was that the relevant time for foreseeability was left open. At the 180 Diplomatic Conference, the issue again came into focus and there were various attempts to specify the point in time at which the foreseeability standard is to be applied. One proposal would have limited Art. 5 to foreseeability at the time when the contract was concluded. The right to damages under Art. 74 is so limited. Had the proposal to similarly limit Art. 5 been approved, it would clearly have eliminated the possible anomaly of a right to avoid a contract even where there is no right to damages. However, this proposal was not approved nor did the delegates approve a related proposal which would have required foreseeability to be related to the reasons for the conclusion of the contract, or any information disclosed at any time before or at the conclusion of the contract. The Official Records indicate that the latter proposal was withdrawn following the statement that information provided after the conclusion of a contract could modify the situation as regards both substantial detriment and foresight. Although the other delegates were not unanimous, a substantial number favoured leaving the question at large to be decided by the adjudicating body, taking into account the circumstances surrounding the case in question.


As the preceding analysis shows, the travaux pr�paratoires offer no help to the court. Accordingly, one may argue that the question was deliberately left unanswered because the working groups could not agree on the answer. They therefore left the question to the courts. There is, therefore, no reason to impose an interpretation on Art. 5s foreseeability requirement that ignores post-formation developments. However, on this approach, one has to be in conformity to Honnolds view that information received by the seller later than the breach should not have any value attached to it.


Nevertheless, there is the possibility of arguing in support of the first approach. As explained when dealing with the concept of the injured partys expectations under the contract, whether or not the injured party was entitled to expect to have a particular benefit should be ascertained within the contract terms and other circumstances which came to the attention of the party in breach at the time of making the contract. The same analysis seems to be applicable to the measurement of foreseeability of the consequences of the breach. It can even go further and argue that the language of Art. 5 is in line with this approach, since it defines the consequences relevant to the determination of fundamental breach in terms of what a party is entitled to expect under the contract and the second sentence of the Article refers to the foreseeability of such result by the party in breach. Accordingly, as contractual expectations are formed at the time of contracting, foreseeability of substantial deprivation of those expectations by the reason of breach should also be measured at that time.


... Nachfrist


As already pointed out, termination of contract is primarily to be justified on the basis of the doctrine of fundamental breach. This criterion is to be applied even where the seller fails to perform his obligations within the contract time. Under this requirement, termination can be a thorny problem, for in any case the buyer must be sure that the breach is fundamental. This will not always be a proper solution for him. Once the seller is, for instance, late in performing, the buyer may rightly be doubtful whether the sellers delay amounts to a fundamental breach. One way to circumvent this problem is by use of the German law solution of Nachfrist according to which, where one party is in default the other party may give him a reasonable time within which he should perform his obligations. If at the end of this additional period of time, the defaulting party has not performed, the innocent party can terminate the contract. In the case of buyers remedies, Art. 47(1) adopted a version of this concept. The provision authorises the buyer to fix an additional period of time of reasonable length for performance by the seller of his obligations. The wording of the provision appears to cover the whole range of obligations arising under the contract and the Convention, such as delivery of all or part of the goods, the remedy of any lack of conformity by repair of the goods or by delivery of substitute goods or performance of any other act which would constitute performance of the sellers obligations. However, Art. 4(1)(b) only refers to the case where the seller has failed to deliver the goods. Accordingly, the question is whether the buyers right to terminate the contract on the basis of Nachfrist notice arises only where the seller has failed to deliver on the date set for delivery in the contract or if it also comes into operation in respect of failure to perform other obligations.


Although ULIS started with the idea that the buyer could avoid a contract only for a fundamental breach (Art. 4), it also allowed the buyer to demand that the seller cure the defect within a reasonable time and, if the seller did not, the buyer could declare the contract avoided (Art. 44()). The UNCITRAL Working Groups early drafts were also broad and covered any failure of the seller to perform any of his non-fulfilled obligations within the additional period of time. However, in 17 at the fourth session several representatives advanced proposals to restrict the notice-avoidance procedure to cases where the seller has not delivered the goods. UNCITRAL accepted those proposals on the ground that the procedure could be abused to convert a minor breach into a fundamental breach by using the Nachfrist system provided under Art. [47(1)] and avoid the contract where the seller did not perform his obligations within the additional time. The restricting provision survived in Art. 45(1)(b) of UNCITRALs 178 Draft Convention. At the Vienna Conference, the question of extension of the buyers right to avoid the contract on the ground of Nachfrist notice was again proposed by some delegations. The debate over the issue centred on whether a distinction should be drawn between non-delivery and non-conformity. Some delegations proposed that, since the aggrieved buyer by virtue of draft Art. 4(1) was empowered to fix an additional period of time for the seller to perform any of his obligations, it was appropriate to widen the sphere of application of draft Art. 45(1)(b) to give the buyer necessary remedies when the seller disregarded his fundamental obligations arising from the additional period of time. But as a result of the opposition of the State delegations, the Diplomatic Conference rejected the proposals to broaden the scope of notice-avoidance to include non-conformity and in order to avoid any possible misunderstanding, it added the phrase in case of non-delivery at the beginning of the notice-avoidance provision in Art. 4(1)(b). Based on this amendment, it can be concluded that the buyers right to avoid the contract on the ground of Nachfrist notice is restricted to non-delivery cases. Accordingly, the buyer will not be entitled to resort to the Nachfrist-notice rule to terminate the contract if the seller has failed to perform his duty to deliver substitute goods or other obligations under the contract and the Convention within the additional time.


The buyer will be entitled to terminate the contract on the Nachfrist-notice procedure where he satisfies the court that he has fixed an additional period of time of reasonable length and demanded that the seller deliver the goods within that period (Art. 47(1)). He also has to prove that the seller has not delivered the goods or had declared that he would not have delivered them within the period so fixed (Art. 4(1)(b).


No clear provision, however, can be found in the Convention to be relied in ascertainment of this vague term. Professor Will suggests that it must be ascertained on the particular circumstances of each case. He also suggests that among the various elements to be taken into consideration are the nature, extent and consequences of the delay, the sellers possibilities of and time needed for delivery, and the buyers special interest in speedy performance.


...1. Perfect Conforming Delivery or Substantially Conforming


Where the seller has delivered the goods subsequent to the buyers request, the latter will not be allowed to refuse to accept them and terminate the contract. The question which arises here is whether only a perfect tender would deprive the buyer of the right to rely on Nachfrist avoidance or a delivery which is substantially in conformity with the contract. Suppose, for example, that the seller is late in delivering the goods and the buyer sends a Nachfrist notice requiring complete delivery and within a reasonable period fixed by the buyers notice the seller delivers all but a small portion of the goods or delivers all, but all or part of them do not conform to the contract terms, can the buyer avoid the contract? Art. 4(1)(b) permits the buyer to avoid if the seller fails to deliver the goods within the period fixed by a Nachfrist notice -- a standard that could be construed to apply even though such failure does not amount to a fundamental breach.


It might be argued that the position is apparently covered by Art. 51(). Under this Article, a buyer who has received goods a part of which is not in conformity with the contract or is missing can avoid the contract in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of contract. Thus a buyer who has received delivery of less than the required amount or non-conforming goods cannot avoid the contract as a whole by using the Nachfrist procedure. Termination can be justified in such a case where the lack of conformity amounts to a fundamental breach. The question can also be answered by the proper construction of the general principles on which the Convention is based (Art. 7()). One of those principles is that avoidance of the contract is effective only where the other side has committed a fundamental breach. Art. 7(1), furthermore, requires that the Convention is to be interpreted to promote ... observance of good faith in international trade. The Nachfrist provisions of the Convention can and should, therefore, be interpreted in a manner that does not undermine the fundamental breach standard for avoidance accepted as a general criterion by the Convention. In the light of these considerations, Art. 4(1)(b) should be construed to permit avoidance only where the seller fails to deliver within the additional time fixed by the buyer in accordance with Art. 47(1), a substantial part of the goods or where the delivered goods are substantially contrary to the contract.


.... Nachfrist Notice and Non-Conforming Documents


The other question which arises is whether the Nachfrist-notice avoidance can be extended to the case of non-tender of documents. There is no express provision in the Convention for such an extension, but Art. 4(1)(b) expressly refers to the case of non-delivery of goods. However, some commentators have suggested that By analogy, the provision also applies to the failure to transfer documents of title. This can be justified on the ground that in an international sale of goods, the parties normally bargain for documents. Without the documents of title, the buyer cannot access or resell the goods bargained for. Accordingly, the same logic which justifies the provision in the case of non-delivery of goods exists in the case of failure to transfer the documents of title.


... Breach of Severable Contract


In the preceding discussions, it became clear that the buyer may be entitled to terminate the contract either on the basis of the doctrine of fundamental breach or the Nachfrist rule. Application of these rules has been examined in respect of the case where the buyer wishes to terminate a non-severable contract as a whole for the reason of the sellers non-conforming delivery or late delivery. The Convention, in addition to that, provides some provisions under which the buyer may be able to terminate the contract in respect of some part of the subject-matter of the contract and keep the contract alive with respect to the other part (Arts. 51(1) and 7(1). In the following, the application of the doctrine of fundamental breach as well as Nachfrist rule is assessed in respect of such cases.


...1. Fundamental Breach and Severable Contracts


Where the seller makes a delivery which includes some non-conforming goods or of less than the required quantity of goods, Art. 51(1) entitles the buyer to exercise his remedies under Arts. 46-50, including Art. 4 which gives him the right to avoid the contract. Although the Convention does not expressly make a distinction between cases where the contract is or is not severable, it seems that, by recognising partial avoidance, Art. 51(1) presupposes that it should be the case where performance of the seller could be divided into conforming and non-conforming parts. Where the non-conforming part is severable, the reference means that both the conditions and the effects of Arts. 46-50 can be applied to that part. It follows that the buyer can treat the missing or non-conforming part as the subject of a separate contract that is severable for remedy purposes, and consequently terminate the contract in respect of that part, provided that the sellers failure constitutes a fundamental breach with respect to that part. In such situations the buyer can avoid the contract in its entirety only if the sellers default amounts to a fundamental breach of contract (italics added) as a whole (Art. 5()).


A similar rule is provided where the seller has committed a breach of contract in respect of one or more instalments under an instalment contract. Art. 7(1) permits the buyer to avoid the contract with respect to [an] instalment if the sellers failure to perform any of his obligations constitutes a fundamental breach of contract (italics added) with respect to that instalment. He is also empowered to avoid the contract in respect of future instalments if the sellers default in relation to any instalment gives the buyer good grounds to conclude that a fundamental breach of contract (italics added) will ocPlease note that this sample paper on Buyer's Right to Withhold Performance and Termination [Avoidance] of Contract under the UN Sales Convention is for your review only. In order to eliminate any of the plagiarism issues, it is highly recommended that you do not use it for you own writing purposes. In case you experience difficulties with writing a well structured and accurately composed paper on Buyer's Right to Withhold Performance and Termination [Avoidance] of Contract under the UN Sales Convention, we are here to assist you. Your persuasive essay on Buyer's Right to Withhold Performance and Termination [Avoidance] of Contract under the UN Sales Convention will be written from scratch, so you do not have to worry about its originality.

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