Published by Manz, Vienna: 1986. Reproduced with their permission.
Univ. Prof. Dr. Peter Schlechtriem [*]
4. Specific Performance (Article 28)
Similar to ULIS Article 16 (in conjunction with Article VII of the Hague Convention), Article 28 provides a procedural exception primarily tailored to suit the peculiarities of Anglo-American law, which does not generally provide the remedy of specific performance in the context of most sales contracts. Although legal systems differ in the enforcement of claims for specific performance, even after the elimination of ULIS Article 25, this regulation will not have much impact in actual practice, since parties in international trade normally shun such time-consuming procedures as judicial enforcement of specific performance and, therefore, promptly liquidate their unsuccessful transactions.[222a] On the other hand, where the goods are unique, such as art objects or specially made machines and installations, the remedy of specific performance should be enforceable in Anglo-American courts as well. In Vienna, the word "could" was replaced by "would" at the request of the United Kingdom, thus restricting the possibilities of a judgment compelling specific performance. Article 28 thereby corresponds more closely to ULIS Article 16 in conjunction with Article VIII of the respective Convention. In my opinion, Article 28 may also have significance for German courts: Even where absolute obstacles in performance would release a party from [page 62] its obligations under domestic law, the remedy of specific performance remains intact under the Convention. Nevertheless, a court may not compel an impossible performance; Article 28 allows consideration to be given to the more extensive release that domestic law provides. But this interpretation should not open the road to domestic law whenever CISG gives a remedy unknown to the local law of the forum, such as the claim for repair in Article 46(3).
"Its own law", however, does not refer to the conflict rules of the forum, which would invoke perhaps a foreign law allowing enforcement of specific performance.[226a] A contrary interpretation would be contrary to the purpose of Article 28. [page 63]
* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.(...)
221. Unlike ULIS, CISG does not require a reservation regarding a state's right to refuse to enter decrees of specific performance.
222. See Hartley, supra note 36, at § 3.09 et seq.; but see Ziegel, Remedial Provisions at 9-10.
222a. Honnold, Commentary § 199.
223. Cf. Treitel, 7 Int'l Encyclopedia Comp. L., Vol. VII, Ch. XVI, Remedies § 31 et seq. (1976).
224. See A/Conf. 97/C.1/L.113 and L. 117 (= O.R. 100) (U.S.A.); A/Conf. 97/8 Add. 3 at 15 § 11.
225. See A/Conf. 97/C.1/SR.13 at 7 (= O.R. 302 et seq.) (British reasoning); Farnsworth at 250.
226. See infra at VI.H.
226a. But see Naón § 3.5 at 12.
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