Avoidance of Contract Under the CISG with Turkish Suppliers: When Can a Buyer Walk Away?

A foreign buyer can avoid, meaning terminate, a sales contract with a Turkish supplier under the CISG only where the breach is fundamental, or where the seller fails to deliver or cure within an additional reasonable period the buyer has fixed for performance, and the buyer must declare avoidance to the seller within the applicable time limits or lose the right.

Avoidance under the CISG is the mechanism by which a party ends the contract because of the other side's breach. It is a significant remedy, since it releases both parties from their remaining obligations and can trigger claims for restitution and damages, so the CISG restricts it to serious breaches rather than any deviation from the contract.

The CISG allows avoidance for fundamental breach, meaning a breach that results in such detriment to the other party as substantially to deprive it of what it was entitled to expect, unless the breach was not foreseeable. It also allows avoidance where the seller fails to deliver within an additional period of reasonable length fixed by the buyer, known as a Nachfrist notice. Where these CISG standards need supplementation on ancillary matters, Turkish domestic contract principles under the Turkish Code of Obligations No. 6098 may be relevant.

In practice, Turkish courts and arbitral tribunals applying the CISG examine whether the breach genuinely deprived the buyer of the substantial benefit of the bargain, rather than accepting any non-conformity or delay as automatically fundamental. Late delivery alone is commonly treated as fundamental only where time was of the essence or was made so through a Nachfrist notice that expired without performance.

There is ongoing debate over how foreseeability interacts with the fundamental breach threshold, particularly where the buyer has a specific resale market or end use the seller was unaware of. Practitioners also debate how promptly a declaration of avoidance must follow discovery of the breach, since unreasonable delay can be treated as inconsistent with a genuine intention to terminate.

Before declaring avoidance, the buyer should assess whether the breach is genuinely fundamental or whether a Nachfrist notice fixing an additional period for performance would strengthen the position. The buyer must also be prepared to make restitution of any goods received and to account for any benefit derived from them.

A declaration of avoidance for late delivery must generally be made within a reasonable time after the buyer becomes aware that delivery has been made, or after the additional period fixed has expired without delivery. For other breaches, avoidance must be declared within a reasonable time after the buyer knew or ought to have known of the breach. Missing these windows can extinguish the right to avoid, leaving only damages or other remedies.

Disputes about whether avoidance was validly declared, and its consequences, are decided by the court or arbitral tribunal with jurisdiction under the contract, commonly a Turkish commercial court where the supplier is sued locally, or an arbitral tribunal under an arbitration clause.

Key evidence includes the contract terms on delivery and quality, any Nachfrist notice sent to the supplier and proof of when it was received, correspondence showing the buyer's assessment of the breach, and documentation of the goods' condition and any restitution made. Evidence of the buyer's own contractual downstream obligations can help demonstrate why a breach was fundamental.

Buyers often mistakenly assume that any defect or delay justifies immediate termination; in practice, avoidance without a genuinely fundamental breach or a properly expired Nachfrist period exposes the buyer to a counterclaim for wrongful termination. Another common mistake is delaying the avoidance declaration while continuing to negotiate, which can undermine the claim that avoidance was validly and timely declared.

Can a buyer avoid the contract for any defect in the goods? No. Avoidance requires a fundamental breach that substantially deprives the buyer of what it was entitled to expect, or an expired Nachfrist period for late delivery.

What is a Nachfrist notice? It is a notice fixing an additional reasonable period for the seller to perform; if the seller fails to deliver within that period, the buyer may often avoid the contract even without proving fundamental breach.

What happens to goods already delivered if the contract is avoided? The buyer generally must make restitution of the goods, and both parties account for any benefits derived, alongside any claim for damages.

Is there a deadline to declare avoidance? Yes, avoidance must be declared within a reasonable time in the circumstances; unreasonable delay risks losing the right to avoid.

We help foreign buyers assess, before any declaration is made, whether a breach by a Turkish supplier genuinely meets the fundamental breach threshold or whether a Nachfrist notice should be used first, since a premature or invalid avoidance declaration can expose the buyer to significant counterclaim risk.