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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 62
Sellerís Right to Performance

1.  Right to Require (Specific) Performance
2.  Other Convention Limitations
3.  Specific Performance Limited by Forum Law

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 require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.' [page 135]

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]

1. See supra No. 43.

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]

1. Article 85: infra No. 321.
2. Article 88(2): infra No. 323. See also Hager, Schlechtriem, Commentary (1998) p. 485.
3. See Honnold, Uniform Law (1999) pp. 460-462 [available at <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>]. Regarding Article 7, see supra. No. 75 et seq.
4. Regarding Article 77, see infra No. 294 et seq.
5. See Walt, S., op. cit. (No. 214) at pp. 215-216.
6. See A/CONF./97/5, para. 3 of the Secretariat's Commentary to Article 73 of the 1978 Draft Convention and Walt, op. cit.

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]

1. Supra No. 140 et seq.
2. Regarding specific performance in Civil and Common law systems, see Treitel, Remedies for Breach of Contract, Chapter 3. [page 136]
3. It remains to be seen whether Article 28 will tend to maintain domestic conceptions of the proper rule for specific performance or whether the Convention will be interpreted with the need for international uniformity in mind. Regarding Article 7(1) see supra No. 75 et seq. 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>].


Pace Law School Institute of International Commercial Law - Last updated April 5, 2005
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