CISG
number
LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference
[Outline of committee proceedings]
Document A/CONF.97/11 [Original: English 7 April 1980]
 71 |
A. UNCITRAL text [1978 draft]
B. Amendments
C. Proceedings in the First Committee
D. Subsequent proceedings
E. Overview comments
1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:
"Article 62 [became CISG article 71 ]
"(1) A party may suspend the performance of his obligations if it is reasonable to do so because, after the conclusion of the contract, a serious deterioration in the ability to perform or in the creditworthiness of the other party or his conduct in preparing to perform or in actually performing the contract gives good grounds to conclude that the other party will not perform a substantial part of his obligations.
"(2) If the seller has already dispatched the goods before the grounds described in paragraph (1) of this article become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. This paragraph relates only to the rights in the goods as between the buyer and the seller.
"(3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice to the other party thereof and must continue with performance if the other party provides adequate assurance of his performance."
[Go to Secretariat Commentary on the above text]
[See also pre-Conference observations and proposals by Governments and International Organizations]
2. Amendments were submitted to article 62 [became CISG article 71 ] by the Federal Republic of Germany (A/CONF.97/C.1/L.187), and Canada and Australia (A/CONF.97/C.1/L.224) prior to the 27th meeting.
3. These amendments were to the following effect:
Paragraph (1).
Federal Republic of Germany (A/CONF.97/C.1/L.187):
[Adopted: see Consideration, 5, below.]
Paragraph (3).
Federal Republic of Germany (A/CONF.97/C.1/L.187):
[Rejected: see Consideration, 7, below.]
New article 62 bis.
Canada and Australia (A/CONF.97/C.1/L.224):
[Rejected: see Consideration, 8, below.]
C. Proceedings in the First Committee
(i) Meetings 4. The First Committee considered article 62 [became CISG article 71 ] at its [26th meeting, 27th meeting, 34th meeting and 35th meeting]
on 27th and 28th March and 3rd and 4th April 1980 respectively, and at its [37th meeting and 38th meeting] on 7 April 1980.
(ii) Consideration Paragraph (1). 5. At the 26th meeting, the amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.187) was adopted by 18 votes in favour and 15 against, and the UNCITRAL text adopted, subject to the amendment. Paragraph (2). 6. At the 26th meeting the UNCITRAL text was adopted. Paragraph (3). 7. At the 26th meeting, the amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.187) was rejected, and the UNCITRAL text adopted. New article 62 bis. 8. At the 27th meeting, the amendment by Canada and Australia (A/CONF.97/C.1/L.224) was rejected. 9. At the 34th meeting, the Committee, by 27 votes in favour and 6 against, adopted a motion to consider an amendment by Egypt (A/CONF.97/C.1/L.249) submitted after the close of the deliberations on article 62 [became CISG article 71 ]. 10. This amendment was to the following effect: Egypt (A/CONF.97/C.1/L.249):
"(2) If the party which has been notified fails to provide the assurances described under paragraph (1) of this article, the other party may declare the contract avoided."
11. An amendment was also submitted by Italy (A/CONF.97/C.1/L.251) which was to the following effect:
Italy (A/CONF.97/C.1/L.251):
12. At the 35th meeting, the Committee considered together the amendments by Egypt to articles 62 and 63 [became CISG article 71 and CISG article 72 ] (A/CONF.97/C.1/L.249 and L.250). The amendments were rejected by 19 votes in favour and 19 against.
13. At the 35th meeting, the Committee established an ad hoc working group composed of the representatives of Argentina, Egypt, Finland, France, German Democratic Republic, Germany, Federal Republic of, Iraq, Mexico, Republic of Korea and United States of America to consider articles 62 and 63 [became CISG article 71 and CISG article 72 ] and submit a proposed text of these articles to the Committee.
14. At the 37th meeting, the ad hoc working group submitted the following text for article 62 [became CISG article 71 ] (A/CONF.97/C.1/L.252):
"(a) a serious deficiency in his ability to perform or in his creditworthiness, or
"(b) his conduct in preparing to perform or in performing the contract."
15. At the 38th meeting, an oral amendment to delete from the text submitted by the ad hoc working group the words "if it is reasonable to do so" was adopted by 17 votes in favour and 13 against. A further oral amendment to replace the phrase "when, after the conclusion of the contract" by "if, after the conclusion of the contract" was adopted. A further oral amendment to replace the phrase "it appears" by the phrase "it becomes apparent" was adopted by 20 votes in favour and 5 against. The text submitted by the ad hoc working group, subject to the amendments adopted as noted above, was adopted by 31 votes in favour and 4 against. The amendment by Italy (A/CONF.97/C.1/L.251) was withdrawn.
16. At the 38th meeting, paragraphs (2) and (3) of the UNCITRAL text were adopted.
17. At the 38th meeting, articles 62 and 63 [became CISG article 71 and CISG article 72 ], as amended, were together adopted by 35 votes in favour and none against.
[For subsequent Conference material on the development/approval of the final text of CISG article 71, go to Plenary Conference 9th meeting and 10th meeting]
[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]
(. . .)
Pace Law School Institute of
International Commercial Law - Last updated September 11, 2000