[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).]

1. Right to Require (Specific) Performance

255. If a buyer fails to perform his promise to pay, to take delivery, etc. the Convention permits the seller to require that he perform as promised. Article 62 provides:

The seller may demand performance unless he has resorted to an inconsistent remedy. The 'inconstent' remedy is avoidance, since, by definition, a party who rightly avoids (terminates) a contract puts an end to both parties' right to demand specific relief.[1]

2. Other Convention Limitations

256. In certain circumstances other Convention provisions will affect the seller's right to compel buyer's performance, e.g., to take delivery or pay the price. Not only must the seller take appropriate steps to preserve goods in his possession;[1] if the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, the seller who is otherwise bound to preserve the goods must also take reasonable measures to sell them.[2]

Arguably, the 'duty' which obligates a contracting party to mitigate could be interpreted as a general Convention principle, particularly when combined with a Convention interpretation promoting the observance of 'good faith.'[3] However, because the Convention version of the mitigation rule applies expressly as a limitation on the right to recover damages,[4] and because of the legislative history rejecting an amendment to expand the express scope of the mitigation rule,[5] there is considerable support for the view denying the application of mitigation as a limitation of the right to claim performance.[6]

3. Specific Performance Limited by Forum Law

257. Article 61(1) cannot be read without reference to Article 28.[1] A court or arbitral tribunal asked to require that buyer perform must not only determine whether the letter of Article 61 so permits.

Therefore, even if a court holds that, under the Convention remedial scheme, the seller can require that buyer 'perform' his obligations, it must also consider whether such specific relief would be available pursuant to its own domestic sales law, i.e. the law of the forum State.[2] If specific relief is not so available, the forum court is 'not bound' to require performance under the Convention. In particular, as regards Common law fora, Article 28 may assume significance in cases where the seller demands performance while still in possession of the goods.[3]