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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]

(. . .)

48
Article 44 [became CISG article 48 ]

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 44 [became CISG article 48 ]

"(1) Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ], the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without such delay as will amount to a fundamental breach of contract and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. The buyer retains any right to claim damages as provided for in this Convention.

"(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.

"(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under paragraph (2) of this article, that the buyer make known his decision.

"(4) A request or notice by the seller under paragraphs (2) and (3) of this article is not effective unless received by the buyer."

[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 44 [became CISG article 48 ] by Federal Republic of Germany (A/CONF.97/C.1/L.140), Singapore (A/CONF.97/C.1/L.148), Bulgaria (A/CONF.97/C.1/L.160), Japan (A/CONF.97/C.1/L.164), United States of America (A/CONF.97/C.1/L.203), Norway (A/CONF.97/C.1/L.80), Finland (A/CONF.97/C.1/L.141), Norway (A/CONF.97/C.1/L.142), Turkey (A/CONF.97/C.1/L.146) and Pakistan (A/CONF.97/C.1/L.198).

3. These amendments were to the following effect:

Paragraph (1).

(i) Federal Republic of Germany (A/CONF.97/C.1/L.140):

In paragraph (1) of article 44 [became CISG article 48 ], delete the words "Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ]".

[Withdrawn in favour of joint proposal: see Consideration, 8, below.]

(ii) Singapore (A/CONF.97/C.1 /L.148):

Replace the words "without such delay as will amount to a fundamental breach of contract" in the first sentence of paragraph (1) by the words "without unreasonable delay".

[Withdrawn in favour of joint proposal: see Consideration, 10, below.]

(iii) Bulgaria (A/CONF.97/C.1/L.160): Delete in paragraph (1) of article 44 [became CISG article 48 ] the words:

"Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ]".

[Withdrawn in favour of joint proposal: see Consideration, 8, below.]

(iv) Japan (A/CONF.97/C.1/L.164):

Delete the following words at the beginning of paragraph (1):

"Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ]".

[Withdrawn: see Consideration, 10, below.]

(v) United States (A/CONF.97/C.1/L.203):

Revise the first sentence of paragraph (1) of article 44 [became CISG article 48 ] to read as follows:

"(1) Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ] and regardless of any right of the buyer under article 42 [became CISG article 46 ], the seller may even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without such delay as will amount to a fundamental breach of contract and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer."

Alternatively, the first sentence of paragraph (1) may commence as follows:

"(1) Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ], the seller may even after the date for delivery and regardless of any right of the buyer under article 42 [became CISG article 46 ], remedy at his own expense . . ."

[Rejected: see Consideration, 10, below.]

Paragraph (2).

(vi) Norway (A/CONF.97/C.1/L.80):

Add the following in paragraph (2) at the end of the first full stop sentence:

"or, if no time is indicated, within a reasonable time after the buyer has given notice under article 37 [became CISG article 39 ]."

[Rejected: see Consideration, 11, below.]

(vii) Finland (A/CONF.97/C.1/L.141):

Revise paragraph (2) of article 44 [became CISG article 48 ] to read as follows:

"(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time the seller may perform within the time indicated in his request, or, if no time is indicated, within a reasonable time after the buyer has given notice under article 37 [became CISG article 39 ]. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller."

[Rejected: see Consideration, 11, below.]

(viii) Federal Republic of Germany (A/CONF.97/C.1/L.140):

Revise paragraph (2) of article 44 [became CISG article 48 ] to read as follows:

"(2) Unless the buyer has fixed an additional period of time in accordance with paragraph (1) of article 43 [became CISG article 47 ], the seller may request the buyer to make known whether he will accept performance within the time indicated in the request. If the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller."

[Withdrawn in favour of joint proposal: see Consideration, 11, below.]

(ix) Japan (A/CONF.97/C.1/L.164):

Delete the last sentence of paragraph (2) and add a new paragraph as follows:

"(2 bis) The buyer may not resort to any remedy which is inconsistent with performance by the seller during the time necessary for the seller to make such a request, if the seller can do so in accordance with paragraph (1) of this article, and during the time indicated in that request if the seller has requested the buyer in accordance with paragraph (2) of this article."

[Withdrawn: see Consideration, 11, below.]

Paragraphs (2), (3) and (4).

(x) Bulgaria (A/CONF.97/C.1/L.160):

Delete paragraphs (2), (3) and (4) of article 44 [became CISG article 48 ].

[Withdrawn in favour of joint proposal: see Consideration, 12, below.]

(xi) Turkey (A/CONF.97/C.1/L.146):

Delete paragraphs (2), (3) and (4).

[Rejected: see Consideration, 12, below.]

(xii) Pakistan (A/CONF.97/C.1/L.198):

Paragraphs (2), (3) and (4) of article 44 [became CISG article 48 ] may be deleted.

[Rejected: see Consideration, 12, below.]

(xiii) Norway (A/CONF.97/C.1/L.142):

Paragraphs (2), (3) and (4) should be transferred to a new article 44 bis, to be given the sub-title "Interpellation".

[Referred to Drafting Committee: see Consideration, 12, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered this article at its [20th meeting and 22nd meeting] on 24 and 25 March 1980 [see also 37th meeting of First Committee].

(ii) Consideration

5. At the 20th meeting, a motion for the adjournment of the debate on this article was adopted by 19 votes in favour and 15 against.

Paragraph (1).

6. At the 22nd meeting, the Committee considered the following joint proposal:

Bulgaria, Canada, German Democratic Republic, Germany, Federal Republic of, Netherlands, Norway, United States of America (A/CONF.97/C.1/L.213).

Alternative 1:

Paragraph (1).

Revise paragraph (1) of article 44 [became CISG article 48 ] to read as follows:

2 "(1) The seller may remedy at his own expense the failure to perform his obligations only if this is consistent with the reasonable interests of the buyer, does not cause him unreasonable inconvenience and the resulting delay does not amount to a fundamental breach of contract. The buyer retains any right to claim damages as provided for in this Convention."

Alternative II:

Paragraph (1).

Revise paragraphs (1) and (2) of article 44 [became CISG article 48 ] to read as follows:

"(1) Subject to article 45 [became CISG article 49 ] the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. The buyer retains any right to claim damages as provided for in this Convention.

"(2) The seller may request the buyer to make known whether he will accept a remedy of his failure to perform, unless the buyer has fixed an additional period of time in accordance with article 43 [became CISG article 47 ] or declared the contract avoided in accordance with article 45 [became CISG article 49 ]. If the buyer does not reply within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller."

Alternative III:

At the end of article 45(1)(a) [became CISG article 49(1)(a) ], add the following words:

". . . and the seller does not remedy the failure in accordance with article 44 [became CISG article 48 ]."

7. It was noted during the consideration of this joint proposal that Alternative III in the proposal formed part of Alternative I.

8. At the 22nd meeting, the amendments of the Federal Republic of Germany (A/CONF.97/C.1/L.140) and Bulgaria (A/CONF.97/C.1/L.160) were withdrawn in favour of the joint proposal (A/CONF.97/C.1/L.213).

9. At the 22nd meeting, Alternative I of the joint proposal (A/CONF.97/C.1/L.213) was rejected by 7 votes in favour and 17 against. Paragraph (1) of Alternative II of the joint proposal (A/CONF.97/C.1/L.213) was adopted in replacement of paragraph (1) of the UNCITRAL text by 19 votes in favour and 7 against. Paragraph (2) of Alternative II of the joint proposal (A/CONF.97/C.1/L.213) was rejected by 10 votes in favour and 16 votes against.

10. At the 22nd meeting, the amendment of Singapore (A/CONF.97/C.1/L.148) was withdrawn in favour of the joint proposal. The amendment of Japan (A/CONF.97/C.1/L.164) was withdrawn, and the amendment of the United States (A/CONF.97/C.1/L.203) was rejected by 10 votes in favour and 10 votes against.

Paragraph (2).

11. At the 22nd meeting, the amendment of the Federal Republic of Germany (A/CONF.97/C.1/L.140) was withdrawn in favour of the joint proposal (A/CONF.97/C.1/L.213). The amendments of Norway (A/CONF.97/C.1/L.80) and Finland (A/C.1/L.141) were orally amended by the deletion of the words "under article 37 [became CISG article 39 ]" from each of the amendments. The amendments, as orally amended, were rejected by 7 votes in favour and 24 against. The amendment by Japan (A/CONF.97/C.1/L.164) was withdrawn.

Paragraphs (2), (3) and (4).

12. At the 22nd meeting the amendment by Bulgaria (A/CONF.97/C.1/L.160) was withdrawn in favour of the joint proposal (A/CONF.97/C.1/L.213), the amendments by Turkey (A/CONF.97/C.1/L.146) and Pakistan (A/CONF.97/C.1/L.198) were rejected, and the amendment by Norway (A/CONF.97/C.1/L.142) was referred to the Drafting Committee.

13. The text of paragraph (1) of Alternative II of the joint proposal (A/CONF.97/C.1/L.213) and paragraphs (2), (3) and (4) of the UNCITRAL text were adopted.

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 48, 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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