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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]

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46
Article 42 [became CISG article 46 ]

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 42 [became CISG article 46 ]

"(1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with such requirement.

"(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach and a request for substitute goods is made either in conjunction with notice given under article 37 [became CISG article 39 ] or within a reasonable time thereafter."

[Go to Secretariat Commentary on the above text]

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

B. Amendments

2. Amendments were submitted to article 42 [became CISG article 46 ] by the United States of America (A/CONF.97/C.1/L.180), Norway (A/CONF.97/C.1/L.79), Germany, Federal Republic of (A/CONF.97/C.1/L.135), Denmark (A/CONF.97/C.1/L.138), Finland (A/CONF.97/C.1/L.139), Sweden (A/CONF.97/C.1/L.173), Joint Proposal of Finland, Germany, Federal Republic of, Norway and Sweden (A/CONF.97/C.1/L.199) and Japan (A/CONF.97/C.1/L.161).

3. The amendments were to the following effect:

Paragraph (1).

(i) Norway (A/CONF.97/C.1/L.79):

(1) The buyer may require performance by the seller [of his obligations] unless the buyer has resorted to a remedy which is inconsistent with such requirement.

[Withdrawn: see Consideration, 5, below.]

New paragraph 1 (bis).

(ii) United States of America (A/CONF.97/C.1/L.180):

After paragraph (1) of article 42 [became CISG article 46 ] add a new paragraph (1 bis) to read as follows:

"(1 bis) The buyer may not require performance by the seller if the buyer can purchase substitute goods without substantial additional expense or inconvenience."

[Rejected: see Consideration, 6, below.]

Paragraph (2).

(iii) Norway (A/CONF.97/C.1/L.79):

"(2) Where the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is not reasonably practicable for the seller, or to deliver substitute goods if the lack of conformity constitutes a fundamental breach.

"(3) Any request for repair or substitute goods may be made only in conjunction with notice given under article 37 [became CISG article 39 ] or within a reasonable time thereafter."

[Withdrawn in favour of joint proposal of Finland, Germany, Federal Republic of, Norway and Sweden (A/CONF.97/C.1/L.199): see Consideration, 7, below.]

(iv) Federal Republic of Germany (A/CONF.97/C.1/L.135):

Revise paragraph (2) of article 42 [became CISG article 46 ] to read as follows:

"(2) If the goods do not conform with the contract, the buyer may require the seller to remedy a lack of conformity in the goods by repairing them or to deliver substitute goods unless it is reasonably not practicable for the seller to repair the goods or to deliver substitute goods. Any request to repair the goods or to deliver substitute goods may be made only in conjunction with notice given under article 37 [became CISG article 39 ] or within a reasonable time thereafter."

[Rejected: see Consideration, 8, below.]

(v) Denmark (A/CONF.97/C.1/L.138):

Replace paragraph (2) of article 42 [became CISG article 46 ] by the following text of paragraphs (2) and (3):

"(2) Where the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair unless this is not reasonably practicable for the seller, or, if the lack of conformity constitutes a fundamental breach, to deliver substitute goods.

"(3) Any request for repair or substitute goods may be made only in conjunction with notice given under article 37 [became CISG article 39 ] or within a reasonable time thereafter."

[Withdrawn in favour of amendment of Finland: see Consideration, 7, below.]

(vi) Finland (A/CONF.97/C.1/L.139):

Replace paragraph (2) of article 42 [became CISG article 46 ] by the following text of paragraphs (2) and (3):

"(2) Where the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair if such a repair does not cause the seller unreasonable costs or harm. If the lack of conformity constitutes a fundamental breach, the buyer may require the seller to deliver substitute goods.

"(3) Any request for repair or substitute goods may be made only in conjunction with notice given under article 37 [became CISG article 39 ] or within a reasonable time thereafter."

[Withdrawn in favour of joint proposal of Finland, Germany, Federal Republic of, Norway and Sweden: see Consideration, 7, below.]

(vii) Sweden (A/CONF.97/C.1/L.173):

"(2) The buyer may require the seller to remedy a lack of conformity in the goods by repairing them only if the seller can do so without unreasonable inconvenience or unreasonable expense.

"(3) The buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach and it is reasonably practicable for the seller to supply substitute goods."

[Withdrawn in favour of joint proposal of Finland, Germany, Federal Republic of, Norway and Sweden: see Consideration, 7, below.]

New paragraph (3): addendum to UNCITRAL text paragraph (2).

(viii) Joint Proposal of Finland, Germany, Federal Republic of, Norway and Sweden (A/CONF.97/C.1/L.199):

"(3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair unless this is not reasonably practicable for the seller. A request for repair must be made either in conjunction with notice given under article 37 [became CISG article 39 ] or within a reasonable time thereafter."

[Adopted as jointly modified orally by France, the Union of Soviet Socialist Republics and the United States of America: see Consideration, 9, below.]

New paragraph (2 bis).

(ix) United States of America (A/CONF.97/C.1/L.180):

After paragraph (2) of article 42 [became CISG article 46 ] add a new paragraph (2 bis) to read as follows:

"(2 bis) The buyer loses the right to require performance unless he requests and institutes legal action for it within a reasonable time and before changes in market or other conditions make the exercise of the right unfair or oppressive."

[Rejected: see Consideration, 10, below.]

New paragraph (4).

(x) Japan (A/CONF.97/C.1/L.161):

Add the following paragraph to the proposal in A/C0NF.97/C.1/L.139:

"(4) If the buyer has required to remedy the lack of conformity in accordance with paragraphs (2) and (3) of this article, the buyer may not declare the contract avoided unless the seller has declared that he will not comply with the request or a period of time of reasonable length has passed after that request."

[Withdrawn: see Consideration, 11, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 42 [became CISG article 46 ] at its [18th meeting, 19th meeting and 23rd meeting] on 21st, 24th and 25th March 1980 respectively [see also 37th meeting of First Committee].

(ii) Consideration

Paragraph (1).

5. At the 18th meeting, the amendment by Norway (A/CONF.97/C.1/L.79) was withdrawn.

New paragraph (1) (bis).

6. At the 18th meeting, the amendment by the United States of America (A/CONF.97/C.1/L.180) was rejected by 7 votes in favour and 34 against.

Paragraph (2).

7. At the 18th meeting, the amendment by Denmark (A/CONF.97/C.1/L.138) was withdrawn in favour of the amendment by Finland (A/CONF.97/C.1/L.139). An ad hoc working group was established composed of the representatives of Finland, Germany, Federal Republic of, Norway and Sweden to prepare a common text. The amendments by Norway (A/CONF.97/C.1/L.79), Finland (A/CONF.97/C.1/L.139) and Sweden (A/CONF.97/C.1/L.173) were withdrawn.

8. At the 19th meeting, the amendment by Germany, Federal Republic of (A/CONF.97/C.1/L.135) was rejected by 17 votes in favour and 17 against, and the UNCITRAL text adopted.

New paragraph (3): addendum to UNCITRAL text paragraph (2).

9. At the 19th meeting, the joint proposal of Finland, Germany, Federal Republic of, Norway and Sweden (A/CONF.97/C.1/L.199) was jointly modified orally by France, the Union of Soviet Socialist Republics and the United States of America, by the addition of the following words: "unless this is not reasonable taking account of all the circumstances." The joint proposal, as modified, was adopted by 31 votes in favour, with no votes against and referred to the Drafting Committee and the UNCITRAL text adopted.

New paragraph (2 bis).

10. At the 19th meeting, the amendment by the United States of America (A/CONF.97/C.1/L.180) was rejected.

New paragraph (4).

11. At the 19th meeting, the amendment by Japan (A/CONF.97/C.1/L.161) was postponed until consideration of articles 43, 44 and 45 [became CISG article 47 , CISG article 48 and CISG article 49 ]. At the 23rd meeting the amendment, as modified orally, was withdrawn.

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 46, go to Plenary Conference 8th 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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