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

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2. The Self-Help Sale [Article 88]

Article 88(1) gives the party who is bound to preserve the goods the option of selling them. If the goods spoil easily or if the preservation cost would be unreasonably high, the party has not only an option of selling the goods but also a duty to take reasonable measures to do so. The danger of deterioration, in the meaning of this provision, applies only to physical deterioration and not to the threat of a drop in the market price.[458]

In contrast to § 373(2) of the German Commercial Code, the party who is entitled to sell the goods is basically free to sell the goods in any way he chooses. The qualification "by any appropriate means" allows, however, for differences in the execution of self-help sales in various countries on the basis of domestic rules or customs, so that, indirectly, domestic law may exert an influence. The party who is entitled or bound to sell the goods must, however, notify the other party of his intentions. After lengthy debates in Vienna, the word "reasonable" was inserted in paragraph (1) to qualify the notice, with the goal of making it clear that [page 109] the notice should afford the other side the time and opportunity to avoid the self-help sale.[459] Presumably, however, a notice giving a date for the self-help sale can be sent before expiration of the "unreasonable delay" which is a basic prerequisite for such a sale ("an unreasonable delay . . . in taking possession of the goods or in taking them back or in paying the price or the cost of preservation").[460] On the other hand, when a party has a duty to sell perishable goods, as described in paragraph (2), he need only inform the other party to the extent notice is possible (Article 88(2) sentence 2).

The party entitled or obligated to sell the goods can retain the reasonable cost of preserving and selling the goods from the proceeds of the sale (Article 88(3)). If he stores and sells the goods himself, then, by analogy, he must be allowed to charge an appropriate compensation for these services.[461] [page 110]

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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.

458. See Secretariat's Commentary at 197 § 6, but cf. also O.R. 174, 175 for the redrafting in the Plenary.

459. See A/Conf. 97/C.1/SR.33 at 7 § 54 (= O.R. 413) (working group's reasons for the proposal).

460. Cf. A/Conf. 97/C.1/SR.31 at 4-5 (= O.R. 400 et seq.) (as to the fears that the period could be doubled).

461. Huber at 17.

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