Examples of using Declaration of avoidance in English and their translations into Russian
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Official
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Colloquial
Timing of the declaration of avoidance of the contract article 64 2.
It only denied the seller's claim for loss of interest on the resale price difference,since the seller had resold the goods prior to the declaration of avoidance.
This notice is different from the declaration of avoidance governed by article 26.
The declaration of avoidance was held to be timely even though it was only raised during the course of the proceedings.
Once the price has been paid, the declaration of avoidance is subject to certain rules of timing.
A declaration of avoidance after several time extensions had been granted was found to be timely as well, as was a declaration within 48 hours.
CLOUT case No. 238[Oberster Gerichtshof, Austria,12 February 1998](declaration of avoidance too early) see full text of the decision.
The court deemed the declaration of avoidance to have been made in timely fashion with the meaning of article 49(2)(b)(i) CISG.
The same decision also indicates that article 82 only encompasses loss of ordeterioration in the goods that occurs before the declaration of avoidance is made.
Period of time for declaration of avoidance when the price has been paid(article 64(2)) 11.
Thus, the article will not apply if the aggrieved party has not declared the contract avoided when entitled to do so orif the aggrieved party has not made an effective declaration of avoidance.
Period of time for declaration of avoidance of delivered goods article 49 2.
Nonetheless, in the view of the Arbitral Tribunal, the failure to perform was not fundamental(Art. 25 CISG), though serious;thus it could not lead to a declaration of avoidance of the contract.
In accordance with article 26 a declaration of avoidance is effective only if the aggrieved party gives notice to the other party.
The tribunal noted that the buyer's substitute transaction was madein a timely manner, since the decisive date was the declaration of avoidance by the buyer, and not the seller's request for a higher price.
According to the Court, the declaration of avoidance could not be based on article 49(1)(b) CISG since the plaintiff had effected delivery.
Insofar as the wording of the seller's letter on the avoidance of the contract may have left doubt about thestatus of the contract, the subsequent lawsuit was found to have replaced the declaration of avoidance.
The court ruled on the requirements to be fulfilled for a declaration of avoidance of a contract within the meaning of article 49(1)(a) CISG.
With respect to the declaration of avoidance pursuant to Art. 26 CISG, the court noted that the buyer had opted for avoiding the contract in response to the seller setting a deadline for avoidance and to claim for damages.
The court thus held that the contract was avoided pursuant to the declaration of avoidance subsequently made by the defendant under Article 73(1) and(2), and 25 CISG.
In addition, the appellate court found the defendant to have declared the contract avoided within a reasonable time(article 49(2)(b) CISG), even thoughapproximately five weeks had elapsed between the delivery of the repaired furniture and the declaration of avoidance.
Even though the plaintiff based his conditional declaration of avoidance on Section 326 of the German Civil Code(BGB), it was valid under articles 63 and 64 CISG as well.
Although the plaintiff did not expressly declare the contract avoided as required by article 26 CISG, his refusal to perform, expressed in writing in connection with the claim for repayment,was considered a sufficient notice of the declaration of avoidance.
The Tribunal decided that,for the part of loss incurred after the declaration of avoidance, the seller had no right to claim damages- due to the seller's failure to mitigate the loss.
However, contrary to the Regional Court's reasoning in first instance, the Higher Regional Court stated that the requirement of article 49(2)(b)CISG to declare the contract avoided within a reasonable time does not allow to consider the buyer's refusal of payment to be an implied declaration of avoidance.
The court held that an explicit declaration of avoidance was unnecessary once the seller refused to perform its delivery obligation and that to insist on such a declaration would be contrary to the principle of good faith article 7(1) CISG.
Since this had not been the case, and the buyer had not declared partial avoidance of the contract(i.e. only with reference to the equipment intended for the ice production),the court left undecided whether the buyer's declaration of avoidance had been timely and effective under Article 49(2)(b)(i) CISG.
Due to his serious and ultimate refusal to perform,the plaintiff could not rely on the requirement of a declaration of avoidance under article 49(1a) CISG without contravening the prohibition of"venire contra factum proprium", an established principle of good faith.
CLOUT case No. 107[Oberlandesgericht Innsbruck, Austria, 1 July 1994]; see also Tribunale di Busto Arsizio, Italy, 13 December 2001, available in Rivista di DirittoInternazionale Privato e Processuale, 2003, 150-155, also available in Unilex declaration of avoidance before waiting for result of seller's attempt to cure would be contrary to good faith.
One court found that the mere purchase by the buyer of substitute goods does not constitute a valid(implicit)notice of declaration of avoidance; another court decided that the fact that the buyer sends back the delivered goods without further explanation does not amount to a valid notice of declaration of avoidance.