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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 61 [Seller's remedies in general; claim for damages; no period of grace] [1]

[TEXT OF THE UNIFORM LAW]

(1) If the buyer fails to perform any of his obligations [3] under the contract [2] or this Convention [4], the seller may:
(a) exercise the rights provided in articles 62 to 65 [5];
(b) claim damages as provided in articles 74 to 77 [6].

(2) The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies [7].

(3) No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract [8].

[WORDS AND PHRASES, CONCEPTS

1. overview of rights of the seller
2. obligations can be express or implied
3. obligations can follow from the Convention, from established practices or usages
4. obligations under th[e] Convention
5. seller may exercise the rights provided in articles 62 to 65
6. seller's right to claim damages
7. more specific rights may also be available
8. no period of grace may be granted; cross-reference: article 45

[COMMENTARY]

[1] [overview of rights of the seller]

This article gives an overview of the rights of the [seller], provides for a general right to claim damages and determines its relationship with other remedies. That overview, however, is not exhaustive insofar as Chapter V does not only describe in greater detail the legal consequences of claims for damages (Article 74 fol) and of avoidance of contract (Article 81 fol), but provides also other rights, in particular in the event of anticipatory breach of contract and of breach of instalment contracts (Article 77 fol). What is lacking also is the right to interest (Article 78) even though it is of special relevance to the seller. After all, the passing of the risk under Article 69, too, can be regarded as the legal consequence of certain breaches of the buyer's obligations. Here it shall only be indicated that in spite of the great progress made compared to ULIS, the aimed at consolidation of the rights of the seller (O.R., 48) has not fully been achieved; which was not possible anyway because of the complicated substance. Article 61 is insofar misleading to some extent.

[2] [obligations can be express or implied]

The obligations can be agreed expressly or impliedly or they can be the result of an interpretation of the statements made by or other conduct of the parties (Article 8).

[3] [obligations can follow from the Convention, from established practices or usages]

These are the obligations determined, in particular, in Articles 53 to 60. But they also follow from established practices or usages (Article 9), and include obligations that are provided for by the Convention or are determined by interpreting the Convention.

[4] [obligations under th[e] Convention]

This covers, therefore, all breaches of the obligations of the buyer, irrespective of their nature, e.g. deviation in place, time, substance or also modalities of performance, and their importance, and places them under sanctions. It does, however, not include responsibilities like the obligation to examine the goods under Article 38 (differing view held by Knapp/BB, 445).

[5] [seller may exercise the rights provided in articles 62 to 65]

Reference is made here to the right to performance and to avoidance as well as to the specific legal consequence of Article 65 which finds no correspondence in the rights of the buyer. The system of the rights of the seller is easier than that of the buyer, for the obligations of the former are less complicated. The problems involved in the delivery of defective goods and in the existence of third party rights or claims are not existent at all. Regarding the supplementing of these provisions compare note 1.

[6] [seller's right to claim damages]

The right to claim damages is determined here as being the most general sanction in the case of any breach of obligation by the buyer. Compare also note 5 of Article 45. [page 234]

[7] [more specific rights may also be available]

The right to claim damages is complemented in many cases by more specific rights which may supersede the former, but not replace it.

[8] [no period of grace may be granted; cross-reference: article 45]

Compare note 7 of Article 45.

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Pace Law School Institute of International Commercial Law - Last updated September 25, 2002
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