Published by Manz, Vienna: 1986. Reproduced with their permission.
Univ. Prof. Dr. Peter Schlechtriem [*]
The seller's option to specify the goods under Article 65 met with considerable misgivings in Vienna. In the end, it was maintained. The provision's opponents argued that the seller was sufficiently protected by the remedies of avoidance and damages, while its proponents, arguing primarily from the restrictive conditions under which the seller must exercise his option, insisted that the buyer was sufficiently protected and that the provision achieved an overall balance between the interests of the seller and those of the buyer. The special rules for [page 85] the sale to the buyer's specifications means not only that the seller has an additional remedy - namely the possibility to specify without prejudice to his other remedies - (Article 65(1)) - but also that an offer to contract where the goods have not been specified may be sufficiently definite to form a valid contract. The reservation of the other remedies makes it clear that the seller can also sue for damages, and, in case the failure to specify constitutes a fundamental breach, avoid the contract. The seller may also avoid the contract where the buyer fails to specify within an additional period of time fixed by the seller under Article 63(1) and the failure to specify in effect constitutes a failure to take delivery. [page 86]
* 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.(...)
337. See A/Conf. 97/C.1/SR.26 at 2 et seq. (= O.R. 372 et seq.) (discussion at the 26th session of the First Committee).
338. This concerns the seller's duties to communicate the specifications - a communication which is effective upon receipt, to fix a reasonable period of time for the buyer to make the specifications (Article 65(2), which corresponds to the German Commercial Code § 375(2) sentence 2), and to consider the buyer's needs to the extent they are known to the seller (Article 65(1)).
339. An Iraki motion similar to German Commercial Code § 375(2), which would have granted the seller the additional right to avoid the contract when the buyer delays specification, even when the delay does not constitute a fundamental breach (A/Conf. 97/C.1/L.110= O.R. 125), did not find majority support and was therefore withdrawn.
340. See Secretariat's Commentary at 156-57 §§ 4-5.
341. See Huber at 518; Secretariat's Commentary at 157 § 8.
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