RESPONDENT (Masako Kawazoe)

Issue2: SUPERB could not legally exercise the right to avoidance the contract , on 9^th

October 1996.

We would like to insist that article 49 (1)(b) does not apply to the present case where SUPERB declared the contract avoided.

The article 49(1)(b) together with 47(1) requires that following 2 conditions are fulfilled.

Point 1: the case is the case of non-delivery

Point 2: an additional period is fixed by the buyer and the term of period is a time of reasonable length.

However point1 the present case is not the case of non-delivery under article 49(1)(b) and point2 an additional period that SUPERB fixed is not reasonable long under article 47(1).

As regards point1

In the present case, the control system itself was delivered by CONTROLS on 20 August. The delivery was performed by CONTROLS. Therefore the fact of present case does not meet the required of non-delivery of article 49(1)(b).

As regards point2

SUPERB contents that the period of 3 weeks provided reasonable time for installation of the control system. However this assertion is not correct. On the industry practice, two months are scheduled for the installation in normal situation.

Therfore, the additional period that SUPERB fixed does not meet the period of time of reasonable length in article 47(1).

The third point as an issue of article 48(2)

0n 19 September CONTROLS requested in the letter SUPERB to make known whether he will accept to complete the installation by 30 October , but SUPERB did not reply to this request. CONTROLS’s letter of 19 September discribed above fulfils the requirement.

In view of the above considerration of point1 and point2 as well as point3, SUPERB had no right to declare the contract avoided on 9 October under article 49(1)(b) and if SUPERB had it, SUPERB cannot exercise it on the day under 48(2). In short. SUPERB

Couldn’t avoid the contract leagally.