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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

Articles 87 and 88
Deposit in Warehouse; Sale of Goods Preserved

323. A seller or buyer who is bound to take steps to preserve the goods (in accordance with the rules set forth above)[1] may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable.[2] [page 171]

Where one party is bound to preserve the goods on the other's behalf,[3] and there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, then the party in possession may sell them by any appropriate means provided that reasonable notice of the intention to sell has been given to the other party.[4] If, however, the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordance with Articles 85 or 86 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell.[5]

A party selling the goods, either by right or by reason of duty, has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance.[6]

1. Regarding Articles 85 and 86, see supra No. 321 et seq.
2. Article 87.
3. Regarding Articles 85 and 86, see supra No. 321 et seq.
4. Article 88(l). See, e.g., the decision of Tribunal Cantonal de Vaud (Switzerland) of 17 May 1994, reported [at <http://cisgw3.law.pace.edu/cases/940517s1.html> and] in UNILEX (seller was neither entitled to export nor to sell to a third party the unpaid support base; although Art. 88(1) CISG grants the seller who is under an obligation to preserve the goods the right to sell them, if there is an unreasonable delay by the buyer in taking possession of the goods or in paying the price, a different order can be granted by the court in proceedings for a summary injunction, especially where the goods are not subject to rapid deterioration (re. Art. 88(2), see text infra with following note) and since an authorization by the court to sell the unpaid goods would have been contrary to Swiss rules of civil procedure).
5. Article 88(2). See, e.g., the decision of Tribunal Cantonal de Vaud (Switzerland), cited in the preceding note.
6. Article 88(3).
[page 172]


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