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CISG
number


LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

G. Report of the First Committee
[Outline of committee proceedings]
Document A/CONF.97/11 [Original: English 7 April 1980]

(. . .)

42, 43
Article 40 [became CISG article 42 and CISG article 43 ]

A. UNCITRAL text [1978 draft]
B. Amendments
C. Proceedings in the First Committee
D. Subsequent proceedings
E. Overview comments

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 40 [became CISG article 42 and CISG article 43 ]

"(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial or intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that that right or claim is based on industrial or intellectual property:

"(a) under the law of the State where the goods will be resold or otherwise used if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or

"(b) in any other case under the law of the State where the buyer has his place of business.

"(2) The obligation of the seller under paragraph (1) of this article does not extend to cases where:

"(a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or

"(b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.

"(3) The buyer does not have the right to rely on the provisions of this article if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he became aware or ought to have become aware of the right or claim."

[Go to Secretariat Commentary on the above text]

[See also pre-Conference observations and proposals by Governments and International Organizations]

B. Amendment

2. Amendments were submitted to article 40 [became CISG article 42 ] by Finland (A/CONF.97/C.1/L.133), Nigeria (A/CONF.97/C.1/L.159), German Democratic Republic (A/CONF.97/C.1/L.134) and the Federal Republic of Germany (A/CONF.97/C.1/L.129).

3. These amendments were to the following effect:

Article as a whole.

Finland (A/C0NF.97/C.1/L.133):

Amend the drafting of articles 39 and 40 [became CISG article 41 and CISG article 42 ] by substituting the expression "industrial or intellectual property" by the words "industrial property or other intellectual property".

[Withdrawn by Finland but reintroduced by Argentina and adopted: see Consideration, 5, below.]

Paragraph (1).

Nigeria (A/CONF.97/C.1/L.159):

Paragraph (1) of article 39 [became CISG article 41 ] and paragraph (1) of article 40 [became CISG article 42 ] should be remitted to the Drafting Committee with a view to merging both articles into one.

[Withdrawn: see Consideration, 6, below.]

Article 40 [became CISG article 42 ], paragraph (2).

There were no amendments.

[UNCITRAL text adopted: see Consideration, 7, below.]

Article 40, paragraph (3) [became CISG article 43 ].

German Democratic Republic (A/CONF.97/C.1/L.134):

Revise paragraph (3) of article 40 [became CISG article 43 ] to read as follows:

"(3) The buyer does not have the right to rely on the provisions of this article if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he became aware or ought to have become aware of the right or claim, at the latest within two years after the date of delivery."

[Rejected: see Consideration, 8, below.]

New article 40 bis [became CISG article 43 ].

Federal Republic of Germany (A/CONF.97/C.1/L.129):

After article 40 [became CISG article 42 ], add a new article 40 bis [became CISG article 43 ] reading as follows:

"The seller is not entitled to rely on the provisions of article 39 [became CISG article 41 ], paragraph (2), and of article 40 [became CISG article 42 ], paragraph (3), if he already knew of the right or claim of the third party and the nature thereof."

[Adjourn consideration until after consideration of article 38 [became CISG article 40 ]: see Consideration, 9, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 40 [became CISG article 42 and CISG article 43 ] at its [17th meeting, 21st meeting and 22nd meeting] on 21st and 25th March 1980 respectively [see also 37th meeting of First Committee].

(ii) Consideration

Article as a whole.

5. At the 17th meeting, the amendment by Finland (A/CONF.97/C.1/L.133) was withdrawn but was reintroduced by Argentina and adopted by a vote of 29 in favour and 3 against, and the UNCITRAL text adopted subject to the amendment.

Paragraph (1).

6. At the 17th meeting, the amendment by Nigeria (A/CONF.97/C.1/L.159) was withdrawn, and the UNCITRAL text adopted.

Paragraph (2).

7. At the 17th meeting, the UNCITRAL text was adopted.

Paragraph (3).

8. At the 17th meeting, the amendment by the German Democratic Republic (A/CONF.97/C.1/L.134) was rejected by a vote of 5 in favour and 11 against, and the UNCITRAL text adopted.

New article 40 bis [became CISG article 43 ].

9. At the 17th meeting the Committee decided to postpone consideration of the amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.129) until after consideration of article 38 [became CISG article 40 ]. At the 22nd meeting, the amendment was adopted by a vote of 19 in favour and 4 against, and the UNCITRAL text adopted subject to the amendment.

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 42 and of CISG article 43, go to Plenary Conference 7th meeting]

[E. Overview Comments]

[English translation of report on the significance of the deliberations on this article at the Diplomatic Conference: prepared by Peter Schlechtriem, based on notes taken at the conference and published shortly thereafter]

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Pace Law School Institute of International Commercial Law - Last updated September 8, 2000
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