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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 82

E.  Buyer’s Obligation to Return Goods in Condition Received
F.  Exceptions to the Return-of-Goods Rule

E. Buyer's Obligation to Return Goods in Condition Received

313. It follows from the general restitution rule that a seller who has delivered the goods either wholly or in part may claim restitution from the buyer of the goods supplied.[1] Article 82(1) sets forth a corollary of the general rule: the buyer loses the [page 168] right to declare the contract avoided if it is impossible for him to make restitution of the goods substantially in the condition in which he received them. At the same time, this principle applies in cases where the buyer demands that the seller perform in natura by re-delivering substitute goods:[2] the buyer loses the right to demand redelivery if he cannot return the goods in the condition received.[3]

1. Article 81, supra No. 312.
2. Regarding Article 46(2), see supra No. 216.
3. Article 82(1).

F. Exceptions to the Return-of-Goods Rule

314. The general rule (that the buyer loses the right to avoid and to demand redelivery if he cannot return the goods in the condition received) is subject to three exceptions.

315. First, the buyer need not return goods substantially in the condition received if the impossibility of making such restitution is not due to the buyer's act or omission.[1] Under this exception, the buyer is relieved of his duty to make restitution not only where the deterioration of the goods is attributable to the seller,[2] but also where the goods are lost or damaged due to force majeure or the act of a third party. It has been suggested, however, that this limitation relieves the buyer of his duty to make restitution only in cases where he has exercised reasonable care in protecting the goods.[3]

1. Article 82(2)(a).
2. As where the goods delivered contain a foreign chemical causing them to decompose.
3. See Honnold, J., Uniform Law (1999) at p. 511 [available at <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>], applying the principle set forth in Article 86(1). See also infra No. 322.

316. Secondly, according to Article 82(2)(b), the buyer need not return goods in the condition received if the goods (or - as is more likely - part of the goods) have perished or deteriorated as a result of the examination provided for in Article 38.[1]

1. For an extension of this principle, see the decision of the German Supreme Court (BGH), 25 June 1997, NJW 3311, CLOUT Case 235. also reported in UNILEX (buyer, having processed the goods (stainless steel wire), was unable to make restitution in the condition received; however, buyer did not lose right to avoid, as the non-conformity could only be discovered upon processing which - in this case - had actually augmented value of goods). Regarding Article 38, see supra No. 186.

317. Finally, the buyer need not return the goods in the condition received if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or ought to have discovered the lack of conformity.[1] In this case, however, the buyer must account to the seller for all benefits derived by such sale or consumption.[2]

1. Article 82(2)(c).
2. Regarding Article 84(2), see infra No. 319.
[page 169]


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