Published by Manz, Vienna: 1986. Reproduced with their permission.

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1. The Obligation to Preserve the Goods (Articles 85 and 86)

If the buyer delays in taking delivery or, in cases where the seller is obligated to hand over the goods only in exchange for payment, in making payment, the seller in possession must take appropriate measures -- such steps as are possible and reasonable -- to protect the goods against loss or damage (Article 85 sentence 1).[page 108][455] The seller's duty to preserve the goods applies especially to those cases in which, even though the seller still has control over the disposition of the goods, the risk of loss has already passed to the buyer (cf. Article 69(1)). The seller has the right to retain the goods until he has been reimbursed for his expenses (Article 85 sentence 2).

A comparable situation can arise when the buyer has received the goods but intends to return them.[456] Even though the buyer will generally protect the goods because he otherwise loses the right to avoid the contract or to demand substitute goods if he causes the goods to be lost or damaged (cf. Article 82(1)), Article 86(1) sentence 1 also requires him to protect the goods from insubstantial deterioration. The buyer, too, is entitled to retain the goods until he is reimbursed for the expenses incurred (Article 86(1) sentence 2). Furthermore, if the particular prerequisites of Article 86(2) sentence 1 are met, if the goods have been sent to the buyer or to another location and placed there at the buyer's disposal, and if neither the seller nor someone authorized on his behalf is present at the destination, the buyer must, even when he has not taken possession of the goods, take them into custody and preserve them (Article 86(2) sentence 2).[457] Article 87 permits the goods to be stored at the cost of the other party. [page 109]

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FOOTNOTES

* 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.

455. With regard to Article 74 of the 1978 Draft Convention, it was clarified in Vienna that delay in payment, like delay in taking delivery, can be treated as a prerequisite for the duty to preserve the goods.

456. The discussion on a Chinese motion made it clear that Article 86(1) is not intended to provide an additional right to return the goods. Rather, the right to avoid the contract or demand substitute delivery is presupposed. See A/Conf. 97/C.1/SR.30 at 12-13 (= O.R. 398 et seq.).

457. On the basis of an Australian motion, it was clarified that the buyer in this case can also demand reimbursement for his expenses and retain possession of the goods until he is paid. See Article 86(2) sentence 3; A/Conf. 97/C.1/SR.31 at 2-3 (= O.R. 399 et seq.) (discussion).

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