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CISG number

Art. 62

366. The text of article 43, as adopted by the Working Group on the International Sale of Goods, is as follows:

Limitation on seller's rights under article 43

367. The Committee considered a proposal that article 43 read as follows (italicized words are additions to the existing text):

368. Support for this proposal was based on the proposition that the seller should be able to require the buyer to perform his obligations (in practice, usually to pay the price) only if the seller had already performed his own obligations under the contract.

369. However, there was considerable opposition to this proposal on the ground that it would create difficulties in practice. For instance, it was noted that the contract may call for payment of the price before the goods were delivered or the contract may require the opening of a letter of credit prior to delivery. It was also pointed out that the proposal would upset the balance of rights and obligations between the seller and the buyer.

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

Relationship of action for price with principle of mitigation

371. The Committee decided to consider a proposal that would make the right to require payment of the price subject to the principle of mitigation in conjunction with its examination of the principle of mitigation in article 59 (see paras. 502-505 below).

Decision

372. The Committee concludes that no change of substance is called for in respect of this article. It therefore recommends that the Commission should adopt the following text, now renumbered as article 44:

"Article 44

"The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with such requirement." [page 51]

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