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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 28
Specific Performance

A.  Specific Performance and Forum Law
B.  Award of Specific Performance: 2-Step Process

A. Specific Performance and Forum Law

140. As noted previously, and as more fully developed later in connection with the discussion of remedies for breach, the Convention accepts - as a starting point the logic of Civil law systems with respect to specific performance: if a promisor fails to perform his promise, the most natural means of promise 'enforcement' is to simply require that he perform the promised act: e.g. require that the seller deliver that which has not yet been delivered or (re) deliver goods which conform to the contractual description, or (in the case of buyer's breach) require that the price agreed be paid.[l] But Article 28 sets forth an important general proviso in this regard:

'If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention.'

In contrast with Civil law systems, Common law systems have traditionally placed the remedy of specific performance in a low position on the remedial scale, and Article 28 - which was primarily designed to accommodate the Common law view - is evidence of the compromise which the Convention's remedial system represents.

1. See generally supra No. 44. Re. Article 46 (seller's breach), see infra No. 213 et seq., re. Article 62 (buyer's breach) see infra No. 255 et seq.

B. Award of Specific Performance: 2-Step Process

141. Article 28 requires that a court (or arbitral tribunal) which is asked to 'require performance' under the Convention engage in a 2-step process. First, it must determine whether the remedial rules in Chapters II or III of Part III themselves would make specific performance available to the injured party in the particular case.[l] Then, if the answer to the first question is yes, the court must proceed to apply the 'safety-valve' test in Article 28.

So, even when a court holds that the applicable (Chapter II or III) Convention rule would require a non-performing party to perform, the court must also consider whether such specific relief would be available pursuant to the domestic sales law of the forum State.[2] And if specific relief would not be so available under the domestic rules, the forum court is 'not bound' to require performance under the Convention.

On the one hand, it may be said that Article 28 tends to maintain domestic conceptions of the proper rule for specific performance, even though the Convention in other respects must be interpreted with the need for international uniformity in [page 81] mind.[3] Then again, it should be remembered that the rule of Article 28 in practice will be severely limited: on the one hand, although the provision might sometimes hamper the effort of a seller still in possession to recover the price, monetary damages will always remain a viable altemative;[4] and an injured buyer will hardly ever seek to enforce the seller's performance by judicial means, in that the remedy of (avoidance) and damages will nearly always be preferred.[5] [page 82]

1. Re. Article 46 (seller's breach), see infra No. 213 et seq. Re. Article 62 (buyer's breach), see infra No. 255 et seq.
2. Regarding the application of Article 28 in a Common law jurisdiction, see Lookofsky, Understanding the CISG in the USA (1995) 6-4. See also generally Kastely, 'The Right to Require Performance in International Sales,' 63 Wash. L. Rev. 607 [available at <http://www.cisg.law.pace.edu/cisg/biblio/kastely1.html>] and Huber in Schlechtriem, Commentary on the UN Convention on the International Sale of Goods (Oxford 1998) at 198 ff. Regarding specific performance in Civil and Common law systems, see Treitel, G., Remedies for Breach of Contract (Oxford 1988) Chapter 3.
3. Regarding Article 7(1), see supra Nos. 75 et seq.
4. Re. the seller's right to secure specific performance see infra No. 255 et seq. Re. the seller's right to damages see infra Nos. 252 and 287 et seq.
5. Re. buyer's right to damages under Article 45 see infra Nos. 210 and 287 et seq..

Pace Law School Institute of International Commercial Law - Last updated April 1, 2005
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