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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]

(. . .)

81
Article 66 [became CISG article 81 ]

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

SECTION III. EFFECTS OF AVOIDANCE

A. UNCITRAL text

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

"Article 66 [became CISG article 81 ]

"(1) Avoidance of the contract releases both parties from their obligations thereunder, subject to any damages which may be due. Avoidance does not affect any provisions of the contract for the settlement of disputes or any other provisions of the contract governing the respective rights and obligations of the parties consequent upon the avoidance of the contract.

"(2) If one party has performed the contract either wholly or in part, he may claim from the other party restitution of whatever he has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently."

[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 66 [became CISG article 81 ] by Norway (A/CONF.97/C.1/L.191 and L. 192) and Canada (A/CONF.97/C.1/L.239).

3. These amendments were to the following effect:

(i) Norway (A/CONF.97/C.1/L.191):

Title of Section III of Chapter IV.

Revise this title to read as follows:

"Effects of avoidance or request for substitute goods".

[Referred to Drafting Committee: see Consideration, 5, below.]

(ii) Norway (A/CONF.97/C.1/L.192):

New paragraph (3).

Add the following new paragraph (3):

"(3) If the contract is not avoided, but the buyer requires delivery of substitute goods and has paid the price, restitution of the goods he has received must be made concurrently with the new delivery."

[Rejected: see Consideration, 5, below.]

(iii) Canada (A/CONF.97/C.1/L.239):

Amend article 66 [became CISG article 81 ] by adding one of the following versions of new paragraph (3):

Alternative 1:

"(3) Notwithstanding paragraph (2), the seller shall not be entitled to claim restitution of his goods where the goods have been delivered to the buyer and the buyer is insolvent or the restitution of the goods would otherwise prejudice the rights of the buyer's creditors."

Alternative 2:

"(3) Notwithstanding paragraph (2), the seller shall not be entitled to claim restitution of the goods where the goods have been delivered to the buyer and, under the applicable municipal law, title in the goods has passed to the buyer."

[Withdrawn: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered this article at its [28th meeting and 33rd meeting] on 28 March and 2 April 1980 respectively [see also 37th meeting of First Committee].

(ii) Consideration

5. At the 28th meeting, the amendment by Norway (A/CONF.97/C.1/L.191) was referred to the Drafting Committee. The amendment by Norway (A/CONF.97/C.1/L.192) was rejected by 7 votes in favour and 23 against, and the UNCITRAL text adopted.

6. At the 33rd meeting, the amendment by Canada (A/CONF.97/C.1/L.239), which was submitted after the close of the deliberations on article 66 [became CISG article 81 ], was withdrawn.

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 81, go to Plenary Conference 11th 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 11, 2000
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