Based upon the preceding information and the analysis of the case presented to us, the following are our observations. 1) The fact that only 50% of the goods provided conformed to the contract, namely were football boots, and the rest were not, we would consider there to have been a breach of contract. Additionally, in our opinion, the seller would and should have known that this was the case and that the 50% of slippers substituted would not be deemed fit for the purpose.
Therefore, we would also conclude that the breach could be deemed fundamental. 2) A fundamental breach under CISG does allow the buyer the remedy of avoiding (or canceling) the contract. Such a breach also provides the ability of the buyer to claim for all damages resulting from the breach. 3) The seller, to the bank that issued the irrevocable letter of credit, has submitted all documentation relating to the contract. According to the prevailing regulations, this commits the issuing bank to make the payment.
The only exception to this rule is if a fraudulent transaction has taken place. Conclusion Having studied the case in detail, together with all the relevant laws, it is our advice that, unless the buyer can prove that a fraud has been conducted by the seller, the opportunity to be able to stop the issuing bank from making payment are limited, if not impossible. In respect of the contract itself, we are of the opinion that the buyer has every right to avoid the contract if they so wish.
Should they do so, we would consider that they would be entitled to a claim for damages as provided for within the Vienna Convention. The alternative is that they give the seller the opportunity to remedy the breach. However, this will not affect their ability to claim damages, which still exists.
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