Anali Pravnog fakulteta u Beogradu

ИСПОРУКА РОБЕ С НЕДОСТАЦИМА У КВАЛИТЕТИ

145

Thus, though the General Usage No. 154 contains the prescription according to which the option of the right to cancel the contract is free and unlimited, the point of view that the buyer is not always being able to résolve for the definite one should be accepted. The first limitation results from the General Usage No. 3 which is quoted: „The principle of good faith bona fide is the underlying principle to which parties must adhéré in transacting business. Parties shall not hâve the right to invoke any of the present usages if the application thereof would resuit in conséquences contrary to the above mentioned principle. „So, if the option of the right to cancel the contract would be contrary to the principle of good faith, the buyer could not résolve for it. The second limitation is to be sought in the existence of such special fair business customs, which exclude the possibility to cancel the contract at some defects. Since such special fair business customs are applied according to the hierarchy of the sources of commercial law priory to the General Usages of Trade, their very existance excludes the possibility for the buyer to use his right and to cancel the contract. The author suggests further on to change the buyer’s right to insist on the performance of the contract and place the goods delivered at the disposai of the seller and as well to formulate it as a daim for the supplemental delivery of other goods which are in conformity with the contract, so that the daim of this right be limited on the case of the delivery of unascertained goods only. Herewith buyer’s rights would not be limited, because the General Usages of Trade partiéulary provide for the right of the buyer to insist on the seller’s removing defects of the goods, which may be as well applied in case of delivery of unascertained goods as of specific goods. The author namely starts from the point that the daim for performance of the contract may be realised either by removing the defects or by a new delivery. As the removing of the defects is specially provided for, the right of the buyer to insist on the performance of the contract should be formulated in this way, so that this possibility is unnecessarily not repeated. The author proposes carrying of a supplément into the General Usages of Trade, by which the seller of defective goods delivery is given a possibility to deliver other goods in conformity with the. contract after the date fixed for the delivery of goods, but only on condition that the buyer is reported about the matter without postponement after the received objections on established defects of goods, and that the delivery is performed in a reasonable time, so that it does not cause the buyer either unreasonable inconvenience or unreasonable expense. As to the buyer’s right to insist on the seller’s removing the defects of the goods delivered, the author makes a proposai to extend it and that they be removed on seller’s expense by the buyer himself. And all that so much more because in the décisions of the court up to now this is recognised, diving the buyer right to daim in extent of damages, caused by delivery of defective goods, as well the Supplement of additional costs, caused by delivery of defective goods, as well the Supplement of additional costs, caused by removing the defects. The proposed changes would, according to the author’s opinion, enable a more elastic régulation of a buyer’s and as well of a seller’s status. This would certainly better correspond to the needs of Contemporary trade.