In January 2026, an irrigation equipment distributor in Bordeaux orders 6,000 brass fittings from a manufacturer in Bursa, Turkey, for 184,000 euros, delivery FCA Bursa at the end of April, with a 30% down payment. On 2 April, the manufacturer writes that the rise in brass prices forces it to postpone production “to a date to be communicated”. The distributor waits three weeks, chases twice, then orders from Italy at 231,000 euros and claims the difference and its down payment from the Turkish supplier. The supplier replies that the contract was never avoided, that the Italian order was placed on the buyer’s own initiative, and that it is ready to deliver in June.
Nothing about this dispute is unusual. Its outcome depends almost entirely on the order in which the buyer acted. This page walks through the steps the Vienna Convention on the International Sale of Goods requires of a buyer facing a defaulting foreign supplier (characterising the breach, fixing a deadline, suspending, avoiding, replacing, quantifying), then flags what changes when the contract is governed by domestic French law.
1. First, check which text governs the order
This question comes before all the others, because the buyer’s tools are not the same. Between a French company and a supplier established in a State party to the Vienna Convention of 11 April 1980, which is the case of Turkey as well as China, Germany, Italy and the United States, the Convention applies automatically to the formation of the contract and to the rights and obligations of the parties (CISG, Art. 1(1)(a) and Art. 4). It gives way only to an express exclusion accepted by both parties (CISG, Art. 6).
A reference to “French law” in general terms of purchase does not exclude it: the Convention is part of French law. What such a clause does, if it was accepted, is make French law applicable to the matters the Convention does not govern. Failing that, for those residual matters, the seller’s law applies (Regulation (EC) No 593/2008, Art. 4(1)(a)).
In the Bordeaux example, no exclusion was agreed. The Convention therefore governs avoidance, the substitute purchase and damages. Articles 1217 et seq. of the French Civil Code, which the distributor’s legal department cited spontaneously in its reminders, are not the right basis.
The point is not academic. The Civil Code allows a creditor to have the obligation performed itself at the debtor’s expense after a simple formal notice (French Civil Code, Art. 1222); the Convention has no such mechanism in that form. The Civil Code allows the court to reduce a manifestly excessive penalty clause (French Civil Code, Art. 1231-5); under the Convention, the validity of such a clause is a matter for the law applicable to the contract (CISG, Art. 4(a)). A letter based on the wrong text is not void, but it tells the other side that the buyer does not know which ground it is fighting on.
2. Characterise the breach: delay, defect or refusal
The Convention distinguishes according to how serious the breach is. Only a fundamental breach allows the contract to be avoided immediately, and it is defined demandingly: the breach must cause the buyer such detriment as substantially to deprive it of what it was entitled to expect under the contract, unless the seller did not foresee such a result and a reasonable person of the same kind would not have foreseen it either (CISG, Art. 25).
A mere delay is not, as a rule, a fundamental breach. It becomes one when the delivery date was itself essential, because the contract said so or because the circumstances known to the seller made it clear: seasonal goods, parts intended for a production line that has stopped, products ordered for a dated event. Hence the value of writing into the contract that the dates are essential, and why.
A refusal to deliver at the agreed price is different in kind. A supplier that makes delivery conditional on a price increase the contract does not provide for is refusing to perform the contract as concluded. When the refusal is clear, it amounts to the declaration that it will not perform referred to in the Convention, and it opens the way to the anticipatory avoidance discussed below. The Bursa manufacturer, by postponing production indefinitely because of rising raw material prices, did not formally refuse; it made delivery on the agreed date manifestly impossible. The nuance matters for what follows.
3. Fix an additional period, the safest route
The Convention’s most effective tool is also its least used. The buyer may fix an additional period of time of reasonable length for the seller to perform (CISG, Art. 47(1)). If delivery does not take place within that period, or if the seller declares that it will not deliver within it, the buyer may declare the contract avoided without having to show that the breach was fundamental (CISG, Art. 49(1)(b)). Where goods are not delivered, the additional period turns an uncertain debate about the seriousness of the breach into a question of dates.
During that period, the buyer may not resort to any other remedy, except to claim damages for delay (CISG, Art. 47(2)). It should therefore not fix one by reflex if it intends to avoid immediately for fundamental breach.
The letter must also have the intended effect. A vague phrase such as “as soon as possible” fixes no period at all, and a period found to be unreasonable may be extended by the judge or the arbitrator, which pushes back avoidance and the substitute purchase accordingly. The right length depends on the nature of the goods, the manufacturing time remaining, transport and what the supplier knew about the urgency. There is no standard length, and disputes are won or lost on that calibration.
In the Bordeaux example, a letter dated 3 April setting 30 April as the delivery date, failing which the contract would be avoided, would have allowed the distributor to avoid on 1 May beyond any argument. It could have ordered from Italy that same day. It could then have claimed from the Turkish supplier the return of the 55,200-euro down payment with interest from the date it was paid, the 47,000-euro difference between the contract price and the replacement price under Article 75 and, if the contract had made them foreseeable, the consequences of the delay for its own customers. And the supplier could not seriously have argued that the contract was still alive or that it remained willing to deliver in June, since the whole point of the additional period was to fix the date after which its delivery was no longer expected. One letter. Three weeks earlier.
4. Suspend and avoid before the due date
The Convention does not force the buyer to wait for the delivery date before reacting to an announced default. Two mechanisms, often confused, are open to it.
The first is suspension. A party may suspend the performance of its obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of its obligations as a result of a serious deficiency in its ability to perform, in its creditworthiness, or in its conduct in preparing to perform (CISG, Art. 71(1)). The buyer can thus hold back a balance or a second instalment. It must give notice immediately, and resume performance if the supplier provides adequate assurance (CISG, Art. 71(3)).
The second is anticipatory avoidance. If, before the date for performance, it is clear that one party will commit a fundamental breach, the other may declare the contract avoided (CISG, Art. 72(1)). If time allows, it must first give reasonable notice so that the other party can provide adequate assurance (CISG, Art. 72(2)). That formality is not required if the supplier has declared that it will not perform (CISG, Art. 72(3)).
Suspension keeps the contract alive while the picture becomes clearer. Anticipatory avoidance ends it. Between the two, the buyer chooses according to whether it still needs this supplier and whether it has an alternative source.
5. Give notice of avoidance, or nothing is avoided
A declaration of avoidance is effective only if made by notice to the other party (CISG, Art. 26). It cannot be inferred from silence, from an order placed elsewhere or from an email expressing disappointment. It must be an unequivocal declaration that the contract is at an end, sent by means appropriate in the circumstances; a delay or loss in transmission does not deprive the buyer of the right to rely on it (CISG, Art. 27).
Avoidance releases both parties from their obligations, subject to any damages, and leaves in place the provisions on dispute settlement (CISG, Art. 81(1)). Above all, it opens the way to restitution: a party that has performed may claim back whatever it supplied or paid (CISG, Art. 81(2)). A seller bound to refund the price must also pay interest from the date of payment (CISG, Art. 84(1)). The down payment made to the Bursa manufacturer can therefore be recovered with interest, but only if the contract has been avoided, which the distributor never did.
One last deadline needs watching. When the seller has eventually delivered, even late, the buyer loses the right to avoid unless it does so within a reasonable time after becoming aware that delivery has been made (CISG, Art. 49(2)(a)). Accepting the goods without reservation and then trying to avoid two months later does not work.
6. The substitute purchase, at the right time and the right price
The Convention gives the buyer a particularly reliable way of calculating its loss. If the contract is avoided and, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement, it may recover the difference between the contract price and the price of the substitute transaction, as well as any further damages (CISG, Art. 75). If it has not made a substitute purchase, it may recover the difference between the contract price and the current price at the time of avoidance, if the goods have a current price (CISG, Art. 76(1)).
Three conditions can be read in the text, and each has been litigated. The purchase must follow avoidance: an earlier purchase is not a substitute within the meaning of Article 75, even if it meets the same need. It must be reasonable: same quality, same quantity, market price, no upgrade and no bundling with other requirements. It must take place within a reasonable time: waiting for prices to fall before buying, or conversely buying in a panic at the top of the market without consulting anyone, exposes the buyer to a reduction.
The buyer should keep evidence of how it went about it: enquiries, competing quotes, reasons for the choice. In the Bordeaux example, the Italian order was placed before any avoidance and without any documented competitive process. The distributor can obtain the 47,000-euro difference only as general damages, by proving that this extra cost was a foreseeable consequence of the breach.
7. Quantify the loss: foreseeability and mitigation
Damages cover the loss suffered and the profit lost, but they may not exceed the loss which the seller foresaw or ought to have foreseen at the time the contract was concluded, in the light of the facts it knew or ought to have known (CISG, Art. 74). Penalties imposed on the buyer by an end customer, the loss of a contract or the shutdown of a production line are recoverable only if the supplier knew, or ought to have known, that its goods were going into a chain exposed to those consequences. A framework agreement that describes the intended use of the goods and the existence of downstream penalties settles the question in advance.
The injured party must also take reasonable measures to mitigate the loss, failing which the seller may claim a reduction equal to the loss that could have been avoided (CISG, Art. 77). In the Bordeaux example, three weeks of passive waiting will be held against the distributor.
Finally, any sum in arrears bears interest (CISG, Art. 78). The Convention does not set the rate, which is determined by the law applicable to the contract under the conflict rules, often the seller’s law where no choice was made.
The supplier will almost always try to escape liability by pleading force majeure. According to the prevailing view of the courts of the Contracting States, a rise in raw material prices is not an impediment within the meaning of Article 79, which requires an impediment beyond the debtor’s control that it could not reasonably be expected to have taken into account, avoided or overcome (CISG, Art. 79(1)). And even where the exemption applies, it covers damages only; it deprives the buyer neither of avoidance nor of the refund of its down payment (CISG, Art. 79(5)).
8. When domestic French law applies
If the parties have expressly excluded the Convention in favour of domestic French law, or if the contract falls outside its scope (a supply in which the services component predominates, for example, under Article 3(2) of the Convention), the Civil Code takes over with tools that are similar but distinct.
The creditor may suspend performance of its own obligation as soon as it is manifest that the other party will not perform when due and that the consequences of that failure are sufficiently serious for it, provided that it gives notice as soon as possible (French Civil Code, Art. 1220). After formal notice, it may have the obligation performed itself within a reasonable time and at a reasonable cost, and claim reimbursement from the debtor (French Civil Code, Art. 1222). It may terminate the contract by notice, at its own risk, after a formal notice stating expressly that, failing performance within a reasonable time, it will be entitled to do so, save in cases of urgency (French Civil Code, Art. 1226). Damages are limited to what was foreseeable, except in the case of gross or wilful misconduct (French Civil Code, Art. 1231-3), and the court may reduce or increase a penalty clause that is manifestly excessive or derisory (French Civil Code, Art. 1231-5).
The logic stays the same. Write before you act, and act in the right order.
How the firm can help
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Frequently asked questions
How long should I give the supplier in the additional period?
The Convention requires a period “of reasonable length” without putting a figure on it (CISG, Art. 47(1)). It is assessed according to the nature of the goods, the manufacturing time remaining, transport and the urgency known to the seller. There is no standard length: goods in stock and a custom production run do not call for the same period. A period that is too short is not void for that reason, but it is in principle extended to a reasonable length, which delays avoidance and the substitute purchase accordingly. A vague formula, on the other hand, starts no period at all.
Can I withhold payment for an earlier delivery to offset the delay on another?
Not freely. In a contract for delivery by instalments, each instalment has its own regime, and withholding a payment due for a conforming delivery exposes the buyer to a breach of its own. The Convention allows a party to suspend its own obligations when it becomes apparent that the other will not perform a substantial part of its obligations (CISG, Art. 71), and to avoid the contract for the future when a failure gives good grounds to conclude that a fundamental breach will occur with respect to future instalments (CISG, Art. 73(2)). Set-off as such is a matter for the law applicable to the contract.
Can the supplier still deliver after missing the date?
Yes, in principle, as long as the contract has not been avoided. The seller may remedy any failure even after the date for delivery, provided it can do so without unreasonable delay and without causing the buyer unreasonable inconvenience (CISG, Art. 48(1)). If it asks the buyer whether it will accept late performance and the buyer does not reply within a reasonable time, the seller may perform within the time indicated in its request (CISG, Art. 48(2)). A buyer that no longer wants the goods must therefore reply, and avoid.
Can my notice of avoidance be sent by email?
Yes. The Convention imposes no particular form on a notice of avoidance, provided it is given by means appropriate in the circumstances (CISG, Art. 26 and 27). Email is appropriate where the parties habitually use it in their dealings. Two precautions remain useful: send it to the usual contractual contacts and to the supplier’s management, and back it up with a method that provides proof of receipt. If the contract prescribes a form of notice, that form must be followed.
In the same series, for the overall map of risks: International supply chains: the legal risks for a company that buys abroad; on compliance: Forced labour and deforestation: what EU regulations require of importing companies; on leaving the relationship: Ending a relationship with a foreign supplier: notice, abrupt termination and governing law.