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CISG number

Art. 45

230. The text of article 26 as adopted by the Working Group on the International Sale of Goods is as follows:

Paragraph (1)

231. The Committee considered a suggestion that the enumeration of remedies in article 26(1) did not make it clear whether the buyer could claim damages in addition to exercising the rights provided in articles 27 to 33. It was suggested that this problem might be overcome by placing appropriate connecting words between subparagraphs (a) and (b) of article 26(1). Despite the preference of some representatives that the draft Convention not allow an accumulation of remedies, the generally accepted view was that the buyer should not be deprived of the right to claim for any damages he might have suffered by the mere fact that he had exercised other remedies. Even in cases where the buyer had declared the price reduced pursuant to article 31, he might have suffered additional damages, for instance because of delay. It was considered that the remedy scheme of the Convention should not preclude the buyer from obtaining such damages from the seller. It was pointed out that the Working Group on the International Sale of Goods had not placed the word "and" between subparagraphs (a) and (b) of article 26(1) since accumulation of remedies may not be appropriate in all cases. It was also pointed out that the Working Group was of the opinion that this result could be more clearly obtained by the language of article 26(2). However, the Committee considered that since the draft text might be misunderstood, it should be sent to the Drafting Group for possible clarification. The Drafting Group was also requested to consider whether any articles should be added or deleted from the enumeration of provisions contained in articles 26(1)(a) and (b).

Paragraph (3)

232. The Committee considered a proposal that article 26(3) be deleted. It was stated in support of this proposal that the object of the Convention should be to maintain the contract with the result that the seller should be permitted to apply to a court for a period of grace to perform the contract. In opposition to the proposal, it was stated that to allow a court to grant delay of grace would mean in some legal systems that a seller who performed within the additional time would not have breached the contract and could not, therefore, be liable for any damages for late delivery. As a result the Committee did not retain this proposal.

Exclusivity of remedies

233. The Committee considered a proposal that the Convention limit the rights of the buyer to those conferred on him by the Convention so that, except in cases of fraud, remedies based upon national law are excluded.

234. In support of this proposal it was stated that exclusion of national law remedies was desirable on grounds of uniformity since those remedies may permit a party to escape from the application of the sanctions in the draft Convention. On the other hand, the continued right to resort to national law remedies in cases of fraud would permit the continued application of the public policy of the State concerned.

235. In opposition to this proposal it was stated that even if the proposal were accepted, national rules which affected the formation and validity of the contract could still be applicable because these matters were excluded from the ambit of the draft Convention by article 7. The proposal contained the added risk that it may be interpreted in some legal systems to prevent the buyer from relying upon remedies stipulated in the contract despite the existence of article 5 which gave supremacy to the will of the parties. It was also pointed out that in situations where defective products had caused damage it may be inadvisable to protect the seller by preventing the buyer from relying on remedies in tort.

236. The Committee, after deliberation, did not retain the proposal.

Decision

237. The Committee concludes that no change of substance is called for in respect of this article, now renumbered as article 27. The Committee therefore recommends that the Commission should adopt the following text:

"Article 27

"(1) If the seller fails to perform any of his obligations under the contract and this Convention, the buyer may:
"(a) Exercise the rights provided in articles 28 to 34;
"(b) Claim damages as provided in articles 56 to 59.
"(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.
"(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract." [page 42]

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