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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 62 [Seller's right to require performance] [1]

[TEXT OF THE UNIFORM LAW]

The seller may require the buyer to pay the price, take delivery or perform his other obligations [2], unless the seller has resorted to a remedy which is inconsistent with this requirement [3].

[COMMENTARY]

[1] This article provides for the right of the seller to obtain or require performance which does not, however, constitute a sanction but a pursuance of initial rights under the contract (Knapp/BB, 453). Where they are disturbed, which makes up the substance of a breach of contract, they can no longer be fulfilled in the original manner whereby the right to obtain performance strictly speaking becomes a right to require approximate performance.

Concerning the right to obtain performance where impediments exist that are beyond the control of the debtor, compare note 13.6. of Article 79; where they are caused by the creditor under Article 80.

[2] The implementation of the right to obtain performance by way of the courts is subject to the prerequisites of Article 28. The enforcement of the taking delivery of the goods and the performance of the other obligations is not only complicated under common law, but procedurally, tactically and above all in regard to enforceability also under continental European laws.

Under common law, the right to payment of the price can only be ascertained under restrictive conditions, and its recoverability often involves problems when the buyer has not yet taken delivery of the goods (Honnold, 355 fol). When the buyer neither pays nor takes delivery of the goods, the seller will, just to mention the most important options, do the following (Honnold, 358 fol; Sevón/Dubrovnik, 221 fol): Where he is still in possession of the goods he may, to the extent that the relevant conditions are given, resell them by way of self-help or emergency sale and require the buyer to pay the costs and damages (lower sales price) (Articles 85, 87 and above all Article 88; Article 74 fol). He can also, without setting a Nachfrist -- however, a Nachfrist is more effective so as not to have to prove the [page 235] fundamentality of the breach of contract -- make the contract void (Article 63 fol) and claim damages, typically after a substitute sale.

Where a possible suit would have to be filed not in a common law country, the seller could concentrate from the beginning on the recovery of the sales price. Pursuant to Article 80, the non-taking delivery of the goods would not be an obstacle for it. But this is the way which the seller will generally choose when the buyer has already taken delivery. Avoidance of the contract with its further consequences may be chosen only when it might lead to the recovery of the goods and the goods are wanted.

[3] [remedies that may be inconsistent]

      [3.1] In the event of an avoidance of contract, the right to obtain performance becomes irrelevant (Article 64). The specification obligation is extinguished when the seller makes the specification himself (Article 65). This provision does apply, however, also when rights are given and exercised under the contract which are inconsistent with the right to obtain performance or right to termination.

      [3.2] On the other hand, the exercise of the right to obtain performance does not exclude transition to other rights which are also inconsistent with it (as explained also in note 3.1.) when the right to require performance does not lead to the intended result (Knapp/BB, 454 fol).

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