Article 46. Buyer's Right to Compel Performance

• Text of Article 46
• Outline of issues
• Descriptors
• Coded case annotations
  -  Guide to case codes
• Case digest and analysis
     -  UNCITRAL's case law digest; and
     -  An analysis of CISG jurisprudence
• Case annotated comparatives
  -  UNIDROIT Principles

TEXT OF ARTICLE 46

(1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.

(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

(3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

46A Buyer's right to require performance (art. 46(1); cf. art. 62)

DESCRIPTORS

Specific performance ; Repair ; Substitute goods

CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

Spain 27 December 2007 Audiencia Provincial [Appellate Court] Navarra (Case involving machine to repair bricks)

Argentina 31 May 2007 National Commercial Court of Appeals, Division "A" (Sr. Carlos Manuel del Corazón de Jesús Bravo Barros v. Salvador Martínez Gares)
 

Austria 12 September 2006 Oberster Gerichtshof [Supreme Court] (CD media case) 46C [translation available]

Germany 21 June 2006 Amtsgericht [Lower Court] Landsberg (Dust ventilator case) [translation available]

China 21 May 2006 CIETAC Arbitration Award [CISG/2006/01] (Diesel generators case) 46C [translation available]
 

Austria 8 November 2005 Oberster Gerichtshof [Supreme Court] [translation available]

Spain 29 March 2005 Juzgado de primera instancia [Court of First Instance] Tudela [translation available]
 

France 26 October 2004 Cour d'appel [Appellate Court] Poitiers 46A [translation available]

Ukraine 19 October 2004 Arbitration Award (Iron and steel castings case) [translation available]

Switzerland 21 September 2004 Amtsgericht [District Court] Luzern-Land [translation available]

Belgium 30 June 2004 Hof van Beroep [Appellate Court] Gent

Spain 28 April 2004 Audiencia Provincial [Appellate Court] Barcelona [translation available]

Switzerland 27 January 2004 Kantonsgericht [District Court] Schaffhausen 46C [translation available]

Switzerland 13 January 2004 Bundesgericht [Supreme Court]
 

Spain 5 November 2003 Audiencia Provincial [Appellate Court] Vizcaya

Russia 25 June 2003 Arbitration Award No. 151/2002 46C [translation available]

Germany 25 March 2003 Landgericht [District Court] Köln [translation available]
 

China 27 December 2002 CIETAC Arbitration Award [CISG 2002/29] (Medicine manufacturing equipment case) [translation available]

Germany 19 December 2002 Oberlandesgericht [Appellate Court] Karlsruhe 46C [translation available]

China 17 December 2002 CIETAC Arbitration Award [CISG 2002/27] (Production line case) 46A [translation available]

Belgium 16 December 2002 Hof van Beroep [Appellate Court] Antwerpen (Steel plates case) [translation available]

China 11 November 2002 CIETAC Arbitration Award [CISG 2002/26] (Platform case) 46B [translation available]

Switzerland 5 November 2002 Handelsgericht [Commercial Court] des Kantons Aargau [translation available]

China 21 October 2002 CIETAC Arbitration Award [CISG 2002/16] (Engraving machine case) 46C [translation available]

Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 [English text]

Switzerland 25 February 2002 Kantonsgericht [District Court] Schaffhausen [translation available]

Austria 14 January 2002 Oberster Gerichtshof [Supreme Court] [translation available]
 

France 24 October 2000 Cour d'appel [Appellate Court] Colmar [translation available]

* Austria 7 September 2000 Oberster Gerichtshof [Supreme Court] [translation available]

China 31 January 2000 CIETAC Arbitration Award [CISG/2000/09] (Clothes case) 46C [translation available]

Russia 24 January 2000 Arbitration award 54/1999 46B [translation available]

China 2000 CIETAC Arbitration Award [CISG 2000/17] (Souvenir coins case) [translation available]
 

United States 7 December 1999 Federal District Court [Illinois] (Magellan International v. Salzgitter Handel) 46A

ICC August 1999 International Court of Arbitration, Case 9083 [translation available]

ICC August 1999 International Court of Arbitration, Case 9887 [English text]

Russia 27 July 1999 Arbitration award 302/1996 46A [translation available]

ICC July 1999 International Court of Arbitration, Case 9448 [English text]

ICC June 1999 International Court of Arbitration, Case 9187 [English text]

* France 26 May 1999 Cour de Cassation [Supreme Court] [translation available]
 

* Germany 26 November 1998 Landgericht [District Court] Memmingen [translation available]

Russia 17 November 1998 Arbitration award 164/1996 46B [translation available]

Belgium 4 November 1998 Hof van Beroep [Appellate Court] Antwerp (I.S. Trading v. Vadotex) [translation available]

* Switzerland 28 October 1998 Bundesgericht [Supreme Court] (Meat case) [translation available]

Germany 22 September 1998 Oberlandesgericht [Appellate Court] Oldenburg 46A [translation available]

Switzerland 21 September 1998 Handelsgericht [Commercial Court] Zürich (Catalogue case) [translation available]

ICC March 1998 International Court of Arbitration, Case 9117 [English text]

* France 29 January 1998 Cour d'appel [Appellate Court] Versailles 46C [translation available]
 

China 4 July 1997 CIETAC Arbitration Award [CISG/1997/19] (Gear processing machine case) 46B ; 46C [translation available]

Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe [translation available]

Germany 24 April 1997 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

China 11 April 1997 CIETAC Arbitration Award [CISG/1997/05] (Silicon metal case) [translation available]

* Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz

* ICC January 1997 International Court of Arbitration, Case 8786 [English text]
 

Netherlands 21 November 1996 Arrondissementsrechtbank [District Court] Rotterdam

* Germany Germany 3 April 1996 Bundesgerichtshof [Supreme Court] [translation available]

* France 23 January 1996 Cour de Cassation [Supreme Court] [translation available]
 

* United States 6 December 1995 Federal Appellate Court [2nd Circuit] (Delchi Carrier v. Rotorex) 46B

Hungary 5 December 1995 Budapest Arbitration award Vb 94131 46C [translation available]

* Germany 12 October 1995 Landgericht [District Court] Trier [translation available]

* Egypt 3 October 1995 Arbitration award (Cairo Chamber of Commerce & Industry) [translation available]

Germany 21 September 1995 Landgericht [District Court] Kassel [translation available]

Germany 20 September 1995 Oberlandesgericht [Appellate Court] Nürnberg

Switzerland 30 June 1995 Gerichtskommission [Judicial Commission] Oberrheintal (Sliding doors case) [translation available]

* Germany 9 June 1995 Oberlandesgericht [Appellate Court] Hamm 46B ; 46C [translation available]

* France 26 April 1995 Cour d'appel [Appellate Court] Grenoble (Marques Roque v. Manin Riviére) 46C [translation available]

* Switzerland 26 April 1995 Handelsgericht [Commercial Court] Zürich [translation available]

* Germany 5 April 1995 Landgericht [District Court] Landshut [translation available]

ICC January 1995 International Court of Arbitration, Case 7754 [English text]
 

* Germany 9 November 1994 Landgericht [District Court] Oldenburg 46C [translation available]

United States 9 September 1994 Federal District Court [Northern Dist. NY] (Delchi Carrier v. Rotorex) 46B

Germany 6 July 1994 Landgericht [District Court] Oldenburg

* Austria 1 July 1994 Oberlandesgericht [Appellate Court] Innsbruck [translation available]

China 6 April 1994 CIETAC Arbitration Award [CISG/1994/05] (Printing machine case) 46C [translation available]

Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] [translation available]

Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 119/93] [translation available]

* Germany 18 January 1994 Oberlandesgericht [Appellate Court] Frankfurt [translation available]

ICC 1994 International Court of Arbitration, Case 7565 [English text]
 

Germany 14 April 1993 Amtsgericht [Lower Court] Cloppenburg [translation available]
 

* Germany 17 September 1991 Oberlandesgericht [Appellate Court] Frankfurt [translation available]

CASE DIGEST AND ANALYSIS
-   UNCITRAL's case law digest; and
-   An analysis of CISG jurisprudence

DIGEST OF ARTICLE 46 CASE LAW

Meaning and purpose of the provision

1. Article 46 gives the buyer a general right to require the seller to perform its contractual obligations in kind. While paragraphs 2 and 3 deal with replacement and repair of non-conforming goods in the sense of article 35 and articulate some restrictions for these specific remedies, paragraph 1 applies to all other cases.

2. The right to require performance is subject to the restriction regarding specific performance set forth in article 28. If the seized court does not grant such remedy under its own national law, it will not be bound to grant it under the Convention.[1] Therefore the courts of those jurisdictions that do not allow for specific performance may refuse to grant specific performance of the obligation in dispute and may only award damages.

3. The fact that the right to performance is ranking first in the list of remedies mentioned in articles 46 2 reflects that under the Convention the contractual bond should be preserved as far as possible while the termination of the contract should be available as a last resort (ultima ratio)[2] only if the continuation of the contract would be no longer tolerable because of the severe breach of contract the seller has committed (see art. 49). The same concept applies when the buyer has breached the contract (arts. 62 and 64).

4. Despite its importance, the right to require performance has not been the subject of much case law. In practice other remedies -- in particular the right to claim damages -- are preferred.

General requirements

5. The right to require performance presupposes that the obligation in dispute exists and has thus far not been fulfilled.

6. Furthermore the buyer must "require" performance. This means a clear demand that the disputed obligation should be fulfilled.[3] Under the conditions of article 46(2) and (3) notice of it must be given within a reasonable time. The buyer is also entitled to set an additional period of time for performance in accordance with article 47.

The general right to require performance (Article 46(1))

7. Except in cases covered by article 46(2) and (3), the buyer has a general right under article 46(1) to ask for the seller performance of any due obligation in kind. Thus the buyer is entitled to request that the goods be delivered, that the seller extends a stipulated bank guaranty or respects an exclusive sales obligation.[4] The buyer could claim and -- subject to the restrictions imposed by article 28 -- enforce these obligations with the assistance of the courts.

8. If performance in kind is impossible -- e.g., a unique good has been sold and afterwards destroyed -- then the buyer's right to require performance is also extinguished.

9. Article 46(1) restricts the right to compel performance when the buyer has already resorted to a remedy inconsistent with performance. Such inconsistency exists between performance and avoidance, but also between performance and price reduction.[5] However, the buyer can combine its request for performance and a claim for any remaining damage, e.g., caused by delayed performance.[6] The buyer having once requested performance can still opt for a different remedy, e.g., declare the contract avoided if all the requirements for avoidance are met. Only if the buyer has fixed an additional period of time for performance is the buyer for that period excluded from requesting other remedies except damages under article 47.

10. The general right to require performance need not be claimed within a certain period of time apart from the normal period of limitation according to the applicable national law[7] or, as far as it applies, according to the United Nations Convention on the Limitation Period in the International Sale of Goods. This contrasts with the notice requirement in article 46(2) and (3); but also under article 46(1) a clear declaration that the buyer requests the performance of a contractual obligation is needed.[8]

Delivery of substitute goods (Article 46(2))

11. Article 46(2) presupposes (a) that the seller has delivered non-conforming goods; (b) that the non-conformity constitutes a fundamental breach of contract; and (c) that the buyer has requested replacement within a reasonable time. Given these conditions the buyer is entitled to require delivery of substitute goods.

12. The non-conformity of the goods has to be determined according to article 35 which includes the delivery of defective goods, of different goods (aliud), defects in packaging, and deficiencies in quantity.[9]

13. A fundamental breach with regard to non-conformity of the goods occurs when the delivery of the defective goods substantially deprives the buyer of what the buyer is entitled to expect under the contract (art. 25). A fundamental breach under article 46(2) has to be determined in the same way as under article 49 and in accordance with the general definition given in article 25. Leading court decisions on the point (although rendered in respect of art. 49) have held that a non-conformity concerning quality remains a non-fundamental breach of contract as long as the buyer can -- without unreasonable inconvenience -- use the goods or resell them even with a rebate.[10] Thus, e.g., the delivery of frozen meat which was too fat and too wet and therefore according to expert opinion worth 25.5% less than meat of the contracted quality was considered not to constitute a fundamental breach of contract since the buyer had the opportunity to resell the meat at a lower price or to process it otherwise.[11] On the contrary, if the non-conforming goods cannot be used or resold with reasonable effort this constitutes a fundamental breach.[12] The same is true where the goods suffer from a serious defect -- although they may still be used to some extent (e.g. flowers which should flourish the whole summer but did so only for a minor part of it)[13] or where the goods have major defects and the buyer needs the goods for manufacture.[14] The same solution has been reached where the non-conformity of the goods resulted from added substances the addition of which was illegal both in the country of the seller and the buyer.[15]

14. Special problems arise when the goods are -- even seriously -- defective but reparable. Several courts have found that easy reparability of defects excludes any fundamentality of the breach.[16] At least when the seller offers and effects speedy repair without any inconvenience to the buyer courts will not find that a breach is fundamental.[17] This is in line with seller right to cure as provided for in article 48 of the Convention.

15. Article 46(2) requires a notice within reasonable time. The request for substitute goods can be coupled with the notice of lack of conformity under article 39 for which then the time limits under that provision apply. It can, however, also be given within a reasonable time afterwards.

16. It has to be noted that the right to require delivery of substitute goods can in principle only be exercised if the buyer is able to return the delivered goods in substantially the condition in which he received them (art. 82).

Repair (Article 46(3))

17. Article 46(3) provides for a right to repair if the delivered goods do not conform to the contract in the sense of article 35. Moreover, repair must be reasonable in the light of all the circumstances. Finally, the buyer must give timely notice of its request for repair.[18]

18. It is necessary that the goods are reparable so that the defect can be cured by repair. A request for repair would, however, be unreasonable if, e.g., the buyer could easily repair the goods himself. But the seller remains liable for any costs of such repair.[19]

19. Repair is effectively executed when after repair the goods can be used as agreed.[20] If the repaired goods subsequently become defective the buyer must give notice of the defects.[21] It has been held that as to this notice the period of time of article 39 applies.[22] However, the request for repair can be notified within a reasonable time thereafter.[23] A first notice within two weeks, a second notice after a month and further notices after six and eleven months have been regarded as notices within a reasonable time.[24]

FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. See Digest, article 28.

2. See [AUSTRIA Oberster Gerichtshof [Supreme Court] 7 September 2000, available online at <http://cisgw3.law.pace.edu/cases/000907a3.html>].

3. The commentary on the draft Convention prepared by the UNCITRAL Secretariat contained an example of an ambiguous request that could be interpreted as either a demand for performance or a modification of the delivery date:

Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 38.

4. In these cases the buyers, however, resorted to other remedies, namely damages and as far as possible avoidance: compare, e.g., [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>] (late delivery); [EGYPT Arbitration Award Cairo Chamber of Commerce and Industry 3 October 1995, available online at <http://www.cisg.law.pace.edu/cisg/wais/db/cases2/951003e1.html>] (extension of bank guaranty); CLOUT case No. 2 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 17 September 1991, available online at <http://cisgw3.law.pace.edu/cases/910917g1.html>] (breach of exclusive sales agreement).

5. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 38, at para. 7.

6. Id at para. 4.

7. See for example CLOUT case No. 346 [GERMANY Landgericht [District Court] Mainz 26 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981126g1.html>].

8. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 38, at paras. 4-5.

9. See Digest, article 35.

10. CLOUT case No. 171 [GERMANY Bundesgerichtshof [Supreme Court] 3 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960403g1.html>]; CLOUT case No. 248 [SWITZERLAND Bundesgericht [Supreme Court] 28 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981028s1.html>].

11. CLOUT case No. 248 [SWITZERLAND Bundesgericht [Supreme Court] 28 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981028s1.html>].

12. CLOUT case No. 150 [FRANCE Cour de Cassation [Supreme Court] 23 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960123f1.html>] (artificially sugared wine); CLOUT case No. 79 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 18 January 1994, available online at <http://cisgw3.law.pace.edu/cases/940118g1.html>] (shoes with fissures in leather); [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>] (T-shirts which shrink by two sizes after first washing).

13. CLOUT case No. 107 [AUSTRIA Oberlandesgericht [Appellate Court] Innsbruck 1 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940701a3.html>].

14. See CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Appellate Court [2nd Circuit] 6 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (lower cooling capacity and higher power consumption than contracted of compressors delivered for the manufacture of air conditioners); CLOUT case No. 150 [FRANCE Cour de Cassation [Supreme Court] 23 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960123f1.html>] (artificially sugared wine); CLOUT case No. 315 [FRANCE Cour de Cassation [Supreme Court] 26 May 1999, available online at <http://cisgw3.law.pace.edu/cases/990526f1.html>] (metal sheets absolutely unfit for the foreseen kind of manufacture by the buyer's sub-buyer) (see full text of the decision).

15. In result CLOUT case No. 150 [FRANCE Cour de Cassation [Supreme Court] 23 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960123f1.html>] (artificially sugared wine which is forbidden under EU-law and national laws); CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (also artificially sugared wine).

16. CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>].

17. CLOUT case No. 152 [FRANCE Cour d'appel [Appellate Court] Grenoble 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426f2.html>]; CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>].

18. As to this requirement see CLOUT case No. 225 [FRANCE Cour d'appel [Appellate Court] Versailles 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f1.html>].

19. CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950609g1.html>] (see full text of the decision).

20. CLOUT case No. 152 [FRANCE Cour d'appel [Appellate Court] Grenoble 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426f2.html>].

21. [GERMANY Landgericht [District Court] Oldenburg 9 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941109g1.html>].

22. Id.

23. CLOUT case No. 225 [FRANCE Cour d'appel [Appellate Court] Versailles 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f1.html>] (see full text of the decision).

24. Id.

Reprinted by special permission of Northwestern University School of Law. 34 Northwestern Journal of International Law and Business (Winter 2004) 299-440.[*]

[...]

1. Right to Substituted or Repaired Goods

Article 46 gives the buyer the right to demand performance of the unperformed elements of a contract, a concept that draws from the civil law system but is considered an extraordinary remedy in the common law system.[623] Under Article 46, the buyer may demand delivery of substitute goods if the lack of conformity of the goods constitutes a fundamental breach if he gives notice under Article 39 or within a reasonable time thereafter.[624] However, this right may be limited in some countries by Article 28, which relieves a court of the obligation to order specific performance if such a remedy would not be granted under domestic law.[625] Finally, unless it is unreasonable under the circumstances, the buyer may require the seller to remedy the lack of conformity by repair. The request for repair must be made either in conjunction with notice give under Article 39 or within a reasonable time thereafter.[626] The buyer is not obliged to require the seller to remedy a breach; [627] he may instead move to his own [page 402] remedies such as declaring avoidance and seeking damages.

If the seller delivers only part of the goods, or if only part of the goods delivered is in conformity with the contract, the buyer's remedies apply with respect to the missing or non-conforming part.[628] Partial non-performance can be the basis for avoidance of the contract only if it amounts to a fundamental breach. [629] Conversely, if the seller delivers the goods early, or if the seller delivers a quantity of goods greater than that provided in the contract, the buyer may refuse early delivery [630] and refuse delivery of excess goods.[631] If the buyer does take delivery of the excess goods, he is obligated to pay for them at the contract rate.[632] [page 403]

[...]

FOOTNOTES

* For a subsequent text on this subject by these authors, see Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer & Marisa Pagnattaro, "International Sales Law: A Critical Analysis of CISG Jurisprudence", Cambridge University Press (2005) 241 p.

[...]

623. See Enderlein & Maskow, supra note 20, at 177. Enderlein and Maskow describe the right to require performance of the contract in Article 46 as "an expression of the maxim pacta sunt servanda." They note that specific performance is a secondary remedy under the common law principles and in the UCC, but in theory it is more available under civil codes. See also, Siegfried Eiselen, A Comparison of the Remedies for Breach of Contract under the CISG and South African Law, in Aufbruch nach Europea (Basedow et al. eds., 2001) available at <http://cisgw3.law.pace.edu/cisg/biblio/eiselen2.html> (comparing specific performance in Article 46(1) with principles drawn from common law countries).

624. CISG, supra note 4, at art. 46(2).

625. Id. at art. 28 ("unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention").

626. Id. at art. 46(3).

627. See Arbitration Court of the Chamber of Commerce and Industry of Budapest, VB/94131, Dec. 5, 1995 (Hung.) available at <http://cisgw3.law.pace.edu/cases/951205h1.html>.

628. CISG, supra note 4, at art. 51(1). Few cases have been decided under Article 51. See LG Baden-Baden 4 O 113/90, Aug. 14, 1991, supra note 311.

629. CISG, supra note 4, art 51(2).

630. Id. at art. 52(1).

631. Id. at art. 52(2).

632. Id.

[...]

Go to complete text of Analysis of Fifteen Years of CISG Jurisprudence

1. Introduction
2. CISG Art. 28: Specific performance and the rules of the forum
3. CISG Art. 46: Buyer's right to require specific performance
4. CISG Art. 62: Seller's right to require specific performance
5. UNIDROIT Principles Arts. 7.2.1 - 7.2.5: Right to performance
6. Conclusions

I. Introduction

In Part III Sale of Goods, the Convention provides and regulates the respective obligations and rights of the parties to an international sales contract governed by the CISG, including the remedies available to a party for breach by the other party of the latter's corresponding obligations (duties) arising under the Convention.[1]

In Chapter II Obligations of the Seller (Art. 30), Sections I Delivery of the Goods and Handing Over of Documents (Arts. 31 - 34) and II Conformity of the Goods and Third Part Claims (Arts. 35 - 44), the Convention sets forth the seller's obligations to the buyer. The buyer's remedies for seller's breach of these obligations are set forth in Section III Remedies for Breach of Contract by the Seller (Arts. 45 - 52).

In an exercise of structural, as well as substantive, equality between the parties to the contract, in Chapter III, Obligations of the Buyer (Art. 53), Sections I Payment of the Price (Arts. 54 - 59) and II Taking Delivery (Art. 60), the Convention sets forth the buyer's obligations to the seller. The seller's remedies for buyer's breach of the latter's corresponding obligations are set forth in Section III Remedies for Breach of Contract by Buyer (Arts. 61 - 65).

The present analysis focuses on the right of a party to require the other party to perform the latter's obligations to the former pursuant to the Convention's provisions (CISG Arts. 28, 46 and 62).

Under the regime of the UNIDROIT Principles, the counterpart provisions regarding the right of a party to require performance by the other party are set forth in Chapter 7 Non-Performance, Section 2 Right to Performance (Arts. 7.2.1, 7.2.2, 7.2.3, 7.2.4 and 7.2.5).

II. CISG Art. 28: Specific performance and the rules of the forum

The legislative history of and subsequent commentary on CISG Art. 28 reveal the purpose of the provision, its scope and the reason for its inclusion in the Convention as well as the compromises (semantic, substantive and political) that it contains.[2]

The practical effect of CISG Art. 28 is to restrict in some cases an aggrieved party's general right,[3] which is granted pursuant to CISG Arts. 46 (buyer's right)[4] and Art. 62 (seller's right)[5] to require specific performance[6] of the other party's obligation after a breach of contract by the latter.[7]

Although the regime of the Convention's remedies includes these general rules (CISG Arts. 46 and 62) that a party in breach may be compelled to perform his obligations, thus establishing the primacy of the remedy of specific performance under the Convention, it does not specify and instead leaves to the domestic law of the forum any procedural measures necessary to enforce the remedies available under the Convention.

The inclusion of CISG Art. 28 in the text of the Convention, carving out an exception from the general right of an obligee to require specific performance by a defaulting obligor,[8] is seen as constituting a necessary compromise[9] in order to recognize the historically divergent approaches in doctrine and civil procedure to requiring performance[10] under different legal systems - this view is shared among many commentators of the CISG.[11]

Thus, CISG Art. 28 provides that, if one party is entitled to require performance of an obligation by the other party (i.e., in accordance with CISG Arts. 46 and 62):

Essentially, CISG Art. 28 may be applied to determine the question whether an obligee can obtain the aid of a court to enforce the obligation of a defaulting obligor to perform the contract. Generally speaking, courts in legal systems which as a matter of doctrine and judicial procedure grant orders of specific performance should not be affected by the application of CISG Art. 28. On the other hand, the provision has more practical significance in jurisdictions which do not grant certain forms of specific performance.[12]

Thus, pursuant to CISG Art. 28, a court belonging to the latter category (e.g., common law system) is not bound[13] to require specific performance of the breaching party's obligations under a contract governed by the Convention unless it would[14]do so under its own law[15] in respect of domestic contracts of sale.[16] Effectively, if the law of the forum would not grant specific performance in a domestic contract of sale (i.e., in accordance with domestic law of contract), the court is not bound to enter a judgment of specific performance in respect of the particular international contract of sale under the Convention.[17]

It has been said that CISG Art. 28 has a potential for mischief because "parties will be encouraged to forum-shop for a national court system that will or will not grant specific performance".[18] However, the degree of practical importance of this provision has been questioned by several other commentators, mainly because the right to require specific performance is rarely asserted in international trade.[19] It also seems that the legislative history of the Convention supports the latter body of opinion.[20]

The UNIDROIT Principles contain no counterpart provision to CISG Art. 28. In their Definitions section, Art. 1.10, the Principles, however, provide a definition of a word also contained in CISG Article 28: "court".[21] The Official Commentary on the Principles also states that, and explains the reason why, the term "court" covers arbitral tribunals as well as courts.[22]

The definition of "court" contained in the Principles may arguably serve to answer a relevant question regarding the interpretation of the same word (i.e., "court") contained in CISG Art. 28, so that the reference to that word in the Convention be similarly interpreted as being inclusive of arbitral tribunals.[23]

III. CISG Art. 46: Buyer's right to require specific performance

CISG Art. 46 provides the general rule on the buyer's right to require performance by the seller of his contractual obligations. The buyer may invoke this rule when the seller has failed to perform any [24] of his obligations [25] under the Convention [26] and the contract.[27]

CISG Art. 46 also provides, however, specific restrictions[28] on the invocation of the right to compel specific performance.

The first restriction is set for the in CISG Art. 46(1) which provides that the buyer's right to specific performance is subject to the buyer not having resorted to another remedy which is inconsistent with the requirement that the seller in breach perform his obligations, e.g., declaring the contract avoided pursuant to CISG Art. 49(1).[29]

Furthermore, in the case where the seller has delivered goods that do not conform with the contract, thus breaching his obligations under CISG Arts. 35, 41 or 42,[30] the Convention provides the buyer with the right to require substitute goods (Art. 46(2)) or the repair[31] of non-conforming goods (Art. 46(3)). The exercise of this right is circumscribed in the following manner:

IV. CISG Art. 62: Seller's right to require specific performance

CISG Art. 62 sets forth the general rule on the seller's right to require the buyer to perform his obligations under the Convention [40] and the contract [41] - a parallel rule to the one set forth in CISG Art. 46, which was discussed in Section III, supra.

CISG Art. 62 provides that the seller may require [42] the buyer to pay the price[43] for the goods,[44] take delivery of the goods[45] and perform his other obligations.[46]

The buyer may conceivably default in his obligations either after he has received and retains the goods[47] or by refusing to receive the goods.[48] In any case, a proviso, similar to the one contained in CISG Art. 46(1),[49] is also incorporated in and limits[50] the application of CISG Art. 62; i.e., the party's right to specific performance by the other party of his obligations is subject to the obligee not having resorted to another remedy (e.g., declaration of avoidance) which is inconsistent[51] with the requirement that the obligor in default perform.[52]

V. UNIDROIT Principles Arts. 7.2.1 - 7.2.5: Right to performance

Under the regime of the UNIDROIT Principles (UP) the provisions regarding the right of a party to require performance by the other party are set forth in Chapter 7 Non-Performance, Section 2 Right to Performance (Arts. 7.2.1, 7.2.2, 7.2.3, 7.2.4 and 7.2.5).

The rules regarding the right of the obligee to require performance by the obligor under the UNIDROIT Principles, unlike the rules of the Convention, make a clear distinction between performance of monetary and non-monetary obligations.

      1. UP Art. 7.2.1: Performance of monetary obligation

UP Art. 7.2.1 provides the general rule of the UNIDROIT Principles that where a party who is obliged to pay money under a contractual obligation does not do so, the other party may require payment.[53] This rule, which gives an aggrieved party the right to require the party in default to perform his monetary obligations under the contract, should be applicable, for instance, to the payment of the price for the goods under a sales contract.

The principle of contractual performance of the parties' (monetary) obligations, on which this rule is based, is also generally recognized in the Convention[54] as well as specifically embodied in CISG Art. 62 which sets forth the seller's right to require buyer to pay the price for the goods.[55]

      2. UP Art. 7.2.2: Performance of non-monetary obligation

UP Art. 7.2.2 provides the general rule of the Principles that where a party who owes a non-monetary obligation does not perform, the obligee may require performance of that obligation.[56] This rule again reflects the general approach of the counterpart provisions of the Convention.

In stark contrast to the Convention (CISG Art. 28), however, the Principles do not treat specific performance as a discretionary remedy which is dependant on domestic law and the rules of the forum.[57] Under UP Art. 7.2.2, specific performance of a non-monetary obligation must be granted to an aggrieved obligee, unless one the specific exceptions enumerated in paras. (a) - (e) of the said article applies:

It is arguable that the basis of the stated exceptions is provided by the application of the general principle - also recognized in the Convention - of reasonableness to the various contexts in which UP Art. 7.2.2 (a) - (e) is applicable.

      3. UP Art. 7.2.5: Change of remedy

UP Art. 7.2.5 provides that aggrieved party may abandon the remedy of requiring performance of a non-monetary obligation and opt instead for another remedy or remedies.[63]

UP Art. 7.2.5(1) provides that an aggrieved obligee who has required and who has not received performance within a period fixed (or otherwise within a reasonable) period of time[64] may invoke any other remedy.[65]

UP Art. 7.2.5(2) further provides that the aggrieved obligee may invoke any other remedy where the decision of a court for performance of a non-monetary obligation cannot be enforced.[66]

      4. UP Art. 7.2.3: Repair and replacement of defective performance

UP Art. 7.2.3, similarly to CISG Art. 46(3), expressly provides that the obligee's right to require the obligor to remedy his defective performance includes, in appropriate cases,[67] the right to require repair, replacement,[68] or other cure.[69]

      5. UP Art. 7.2.4: Judicial penalty

UP Art. 7.2.4 sets forth a provision to which there is no counterpart in the Convention; i.e., a judicially imposed sanction to ensure compliance with judgments ordering the performance of contractual obligations.[70]

UP Art. 7.2.4(1), in contradistinction to the provisions of the Convention, provides that a court[71] orders a party to perform, it may[72] also direct that party to pay a penalty if it does not comply with the order.[73]

UP Art. 7.2.4(2) makes clear that payment[74] of the judicial penalty to the aggrieved party[75] does not exclude any claim for damages,[76] but it is subject to the mandatory rules of the lex fori.[77]

VI. Conclusions

The comparison between provisions of the Convention regarding the right to specific performance and the counterpart provisions of the UNIDROIT Principles has revealed similarities and differences between the two instruments.

As a starting point, both the Convention and the UNIDROIT Principles adopt the principle of contractual performance of the parties' obligations, which is embodied in counterpart rules regarding the right of the obligee to require specific performance by the obligor.

There are however, several distinctions, structural and substantive, between the counterpart provisions of the two instruments.

Under the regime of the UNIDROIT Principles, the provisions regulating the right of a party to require performance by the other party do not follow the distinctive structure adopted in the Convention's counterpart provisions - the latter instrument makes separate, albeit similarly balanced between themselves, provisions for a seller and a buyer in an international sales contract governed by the Convention.

On the other hand, the rules regarding the right of the obligee to require performance by the obligor under the UNIDROIT Principles, unlike the rules of the Convention, form what is arguably a more detailed and coherent set of regulations and they make a clear distinction between performance of monetary and non-monetary obligations.

In stark contrast to the Convention, the Principles do not treat specific performance as a discretionary remedy which is dependant on domestic law and the rules of the forum, but the Principles expressly provide several exceptions to the general rule on the obligee's right to require performance of non-monetary obligations. These exceptions are based on specific manifestations of the general principle of unreasonableness - which is also a general principle on which the Convention is based.

Furthermore, the Principles include a provision to which there is no counterpart in the Convention; i.e., a judicially imposed sanction (judicial penalty) to ensure compliance with judgments ordering the performance of contractual obligations.

FOOTNOTES

* Doctorate in Law; Fellow, Pace Law School Institute of International Commercial Law; Lecturer, Faculty of Law, University of Technology, Sydney.

1. The Convention further provides in Part III supplementary rules on remedies that are applicable to both parties, see Chapter V Provisions Common to the Obligations of the Seller and of the Buyer, Sections I Anticipatory Breach and Instalment Contracts (Arts. 71 - 73), II Damages (Arts. 74 - 77), III Interest (Art. 78), IV Exemptions (Arts. 79 -80), V Effects of Avoidance (Arts. 81 - 84) and VI Preservation of the Goods (Arts. 85 - 88).

2. In preparing the Vienna Convention, the drafters of CISG Art. 28 generally followed its predecessor [Art. VII(1) of the 1964 Hague Convention, and Art. 16 of the Uniform Law on the International Sale of Goods (ULIS)]. See the Text of Secretariat Commentary on Art. 26 of the 1978 Draft [draft counterpart of CISG Art. 28], available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-28.html#sec>. See also Bergsten E.E., Subsequent Commentary on CISG Art. 28, Les Ventes 1nternationales de Marchandises (Problèmes juridiques d' actualité)", Paris Economica 1981, pp. 11-14; available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-28.html#sub>.

3. See Enderlein F. & Maskow D., International Sales Law, Oceana (1992), p. 122; also available online at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html>:

Enderlein & Maskow, ibid., also note that there possibly exist in the Convention further, albeit indirect, restrictions of the right to specific performance, relating to the application of CISG Arts. 88(2) and 77.

Honnold J.O., Uniform Law for International Sales, Kluwer Law International, 3rd ed. (1999), at 225, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/honnold.html>, notes that CISG Art. 28 permits deviation only from the rules of the Convention that require performance of a party's obligations and does not affect the Convention's restrictions on specific performance.

4. CISG Art. 46(1) reads: "The buyer may require performance by the seller of his obligations [...]." See further analysis, Section III, infra.

5. CISG Art. 62 reads: "The seller may require the buyer to pay the price, take delivery or perform his other obligations [...]." See further analysis, Section IV, infra.

6. CISG Art. 28 may in certain cases restrict the obligee's right to require specific performance from the obligor, but it does not affect other remedies available under the Convention (e.g., avoidance (CISG Arts. 49 and 64), damages (Arts. 74-76), etc.).

The UNCITRAL Digest of Case Law on CISG Art. 28, (A/CN.9/SER.C/DIGEST/CISG/28 [8 June 2004]), available online at <http://cisgw3.law.pace.edu/cisg/text/anno-art-28.html#ucd>, provides the following definition of specific performance:

7. See Honnold (1999), op. cit., at 218, where the author commences his analysis of the right to require performance in the following terms:

8. The right of an obligee to require specific performance by the defaulting obligor of his contractual obligations is said to reflect a principle which has emanated from civil law theory. See Dawson J.P., "Specific Performance in France and Germany", 57 Michigan Law Review (1959) 495; Treitel G.H., Remedies for Breach of Contract - A Comparative Account, Oxford: Clarendon (1988), Ch. III.

Note, however, that although the principle of specific performance is embedded in civil law theory, the frequency of invocation and enforcement of the remedy of specific performance in practice must not be overestimated. See Henrik Lando, "The Myth of Specific Performance in Civil Law Countries" (April 2004), American Law & Economics Association Annual Meetings. American Law & Economics Association 14th Annual Meeting. Working Paper 15; available online at <http://law.bepress.com/alea/14th/art15>. In that paper, the author argues that when breach involves the non-performance of an action, i.e. when performance cannot be ensured by the handing over of an existing good, specific performance is largely a myth in the three civil law countries Denmark, France and Germany. The paper provides evidence which suggests that a claim for specific performance of an action is, roughly speaking, not enforced in Denmark, weakly enforced in France, and though enforced in Germany, only rarely sought. According to the evidence presented in that paper, it is concluded that specific performance is largely irrelevant as a remedy for the non-performance of an action in civil law countries. Furthermore, the paper argues that the non-use of specific performance can be ascribed to the costs and difficulties of forcing the breaching party to perform an action.

9. See, UNCITRAL Digest on CISG Art. 28, op. cit.:

10. "Specific performance" in common law parlance. In common law systems, specific performance is granted only when alternative remedies (e.g., damages) are not adequate. See, e.g., Piliounis P., "The Remedies of Specific Performance, Price Reduction and Additional Time (Nachfrist) under the CISG: Are these worthwhile changes or additions to English Sales Law?", Cambridge University (September 1999), Section 4, available online at <http://cisgw3.law.pace.edu/cisg/biblio/piliounis.html>, where the author summarizes the traditional English law approach in the following succinct manner:

11. For relevant commentary on point, see Honnold (1999), op. cit., at pp. 219-220, and further references provided therein.

See also Enderlein & Maskow, op. cit., at 120-121:

12. In order to illustrate the point, commentators usually refer to the divergences between common law and civil law doctrine and procedure: the enforcement of specific performance is extensive in civil law systems in order to uphold the pacta sunt servanda principle, whereas in common law systems it is more limited because damages are seen as the primary remedy for breach of contract; see Huber U., in Schlechtriem (ed.) Commentary on the UN Convention on the International Sale of Goods, Clarendon Press, Oxford, 1998, p. 199. See also Schlechtriem P., Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz: Vienna (1986), at 62; also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem.html>, where the author states:

For a detailed examination of the remedy of specific performance under the CISG, accompanied by a comparative analysis of the remedy in the French Civil Code (representative of civil law systems) and the U.S. Uniform Commercial Code (representative of common law systems), see Boghossian N., "A Comparative Study of Specific Performance Provisions in the United Nations
Convention on Contracts for the International Sale of Goods", Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000) 3-78; also available online at <http://cisgw3.law.pace.edu/cisg/biblio/boghossian.html>.

See also Honnold (1999), op. cit., 225-228; Enderlein & Maskow, op .cit.

13. The expression "not bound" does not limit any rights to specific performance that may ensue from the proper application of the Convention's provisions. See Enderlein & Maskow, op. cit., at 122, where the authors states that a court "can grant a right to specific performance in such events where it would normally not do so" [emphasis added].

See also Honnold (1999), op. cit., at 224-225, where the author states that the expression in question

It has been further suggested that the proper application of CISG Art. 28 has an impact on many legal systems (civil law as well as common law systems), by generally ameliorating the effect of the Convention's rules requiring specific performance. See Honnold (1999), op. cit., at 228, where the author concludes his analysis of CISG Art. 28 with the following remarks:

See also Bergsten, Subsequent Commentary on CISG Art. 28, op. cit.:

14. At the Vienna Diplomatic Conference, a single but significant change was made to the text of the provision restricting the right to require performance. CISG Art. 28 reads "unless the court would do so under its own law . . ." rather than "unless the court could do so" that was written in the 1978 UNCITRAL Draft Text of the Convention. The purpose and political nature of the drafting compromise in the text of the provision have been documented and discussed widely. See Enderlein & Maskow, op. cit., at 123:

See also Schlechtriem (1986), op. cit., at 62, where the author has commented that the effect of the particular change in the wording of CISG Art. 28 was to restrict "the possibilities of a judgment compelling specific performance."

15. The reference by the rule in CISG Art. 28 to a national court's "own law" leads to the important question whether the language of the provision invokes the domestic lex fori on specific performance or instead the proper law of the contract applicable by virtue of the rules of private international law. The answer to that question, however, has created little controversy; see Honnold (1999), op .cit., at 223-225.

See also Enderlein & Maskow, op. cit., at 122:

For supporting commentary, see Schlechtriem (1986), op. cit., at 62-63, who cautions, however, against too readily resorting to the lex fori outside the particular remedial context created in CISG Art. 28 regarding specific performance:

16. See Kritzer A.H., Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods, Kluwer, (1988), pp. 217-218, where the author offers the following comparison of the buyer's right to require performance by the seller under the Convention to the counterpart provisions granting buyer the right to compel performance under the U.S. Uniform Commercial Code:

Regarding the seller's right to require performance by the buyer, under the Convention and the UCC, see Kritzer, ibid., at 218-219.

17. For relevant case law, see

-	Argentina 21 July 2002 Appellate Court (Cervecería y Malteria Paysandú S.A. v. Cervecería Argentina S.A.); case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/020721a1.html>. In this case a Uruguayan seller commenced proceedings against an Argentinian buyer for payment of the purchase price of the goods (malted barley). The appellate court, confirming the lower court's decision, found that CISG was applicable as the Argentinian rules of private international law led to the application of Argentinian law as the governing law of the contract, and then to the Convention by virtue of CISG Art. 1(1)(b). The court found that as the goods had been correctly delivered, the seller had complied with his obligations and that the buyer was therefore obliged to pay the agreed price. The court also held that according to Argentinian law, which was applicable in the case at hand, the alleged lack of conformity could only be ascertained according to a specific procedure of arbitration and expertise. As the buyer had not initiated such a procedure, its defenses based on the alleged lack of conformity had to be rejected. Thus, the court concluded that the seller was entitled to require payment of the purchase price, pursuant to CISG Arts. 28, 53, 59, 61 and 62 (as well as interest, pursuant to CISG Art. 78).
-	United States 7 December 1999 Federal District Court [Illinois] (Magellan International v. Salzgitter Handel), presentation available at <http://cisgw3.law.pace.edu/cases/991207u1.html>. This court stated that the remedy of specific performance sought by the buyer in this case is generally available under the Convention (CISG Art. 46(1)), with the exception that a court is not bound to enter judgment for specific performance unless it would do so under its own law of contracts (CISG Art. 28). In this case, it was held that the U.S. Uniform Commercial Code was applicable and in accordance with UCC 2-716(1) (pursuant to which, specific performance may be granted when the buyer proves the difficulty of obtaining similar goods on the market), the court upheld the buyer's claim for specific performance.
-	Switzerland 31 May 1996 Zürich Arbitration proceeding, presentation available online at <http://cisgw3.law.pace.edu/cases/960531s1.html>. This case concerned multi-party litigation and the CISG: the buyer was a group of companies operating aluminum casting works in Argentina and Hungary, and the seller was a Russian firm which produced raw aluminium (the "goods"). When the seller's new owners stopped all deliveries of raw aluminum to buyers, the buyers commenced proceedings in various fora, including this arbitral tribunal. The tribunal, dealing with the buyers' request for specific performance, stated: 348. The Arbitral Tribunal believes that this is primarily a question of the applicable law. It sees no basis for claims for specific performance under Russian law. The Vienna Convention does not provide for this. If the law applicable to the procedure (Swiss law? - again the Vienna Convention) applied, the Arbitral Tribunal sees no basis for specific performance either. 349. Apart from that the Arbitral Tribunal fails to see how specific performance could be an appropriate remedy for [buyers] in this case. They can hardly expect to be able, under the New York Convention or otherwise, to have an award enforced in Russia providing the [seller] must specifically perform its obligations under the various contracts for the next eight or ten years, producing the aluminum and delivering it to [buyers]." 350. "The Arbitral Tribunal will accordingly grant [buyers'] 'alternative' request for relief in the form of damages." [The Tribunal ultimately awarded buyers damages in an amount in excess of US $19 million.]

18. Kastely A.H., "Unification and Community: A Rhetorical Analysis of the Convention", 8 Northwestern Journal of International Law and Business (1988) 574-622, at 615, including supporting references to Gonzalez O., "Remedies Under the U.N. Convention for the International Sale of Goods", 2 Int'l Tax & Bus. Law (1984) 79-100 at 96-97 (1984) and Grigera Naón H., "The U.N. Convention on Contracts for the International Sale of Goods", in: Horn/Schmitthoff ed., The Transnational Law of International Commercial Transactions: Studies in Transnational Economic Law, Deventer: Kluwer (1982) vol. 2, 89-124, at 107.

19. See Schlechtriem (1986), op. cit., at 62:

See also Enderlein & Maskow, op. cit., at 121:

See also Bergsten, op. cit., where the author explains:

See also Henrik Lando, op. cit., where the author argues that specific performance is largely irrelevant as a remedy for the non-performance of an action in civil law countries and, furthermore, that the non-use of specific performance can be ascribed to the costs and difficulties of forcing the breaching party to perform an action.

20. See the legislative history of the Convention, which contains a 1972 Secretary-General report stating the following:

21. Art. 1.10 - Definitions of the UNIDROIT Principles reads:

22. See Official Comments on Art. 1.10 of the UNIDROIT Principles, available online at <http://cisgw3.law.pace.edu/cisg/principles/uni28.html#official>:

23. Further support for such inclusive interpretation of the word "court" is found in the Text of Secretariat Commentary on the Articles of the 1978 Draft.

See Secretariat Commentary on Art. 42 of the 1978 Draft [draft counterpart of CISG Art. 46], available at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-46.html>:

See also Secretariat Commentary on Art. 58 of the 1978 Draft [draft counterpart of CISG Art. 62], available at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-62.html>:

24. See the Text of Secretariat Commentary on Art. 42 of the 1978 Draft [draft counterpart of CISG Art. 46]. Paragraphs (1) and (2) of Art. 42 of the 1978 Draft and CISG Art. 46 are virtually identical. A paragraph (3) was added to CISG Art. 46 at the 1980 Vienna Diplomatic Conference, in order to make express reference to the buyer's right to repair of non-conforming goods. See match-up of CISG Art. 46 with Art. 42 of the 1978 Draft, available at <http://cisgw3.law.pace.edu/cisg/text/matchup/matchup-d-46.html>, which validates the relevancy of the Secretariat Commentary on CISG Art. 46.

For case law holding that pursuant to CISG Art. 46(1) to buyer may require performance of any due obligation, see the following cases (NB. in these cases the buyers, however, resorted to other remedies, such as damages and avoidance):

-	ICC Arbitration Case No. 8786 of January 1997; case presentation available at <http://cisgw3.law.pace.edu/cases/978786i1.html> (case concerned late delivery)
-	Egypt Arbitration Award of 3 October 1995 (Cairo Chamber of Commerce and Industry); case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/951003e1.html> (case concerned extension of bank guaranty; making express reference to Art. 45 CISG, the arbitrator held that the seller had breached its contractual duties by refusing to extend the bank guarantee in favour of the buyer)
-	Germany 17 September 1991 Oberlandesgericht [Appellate Court] Frankfurt case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/910917g1.html> (case concerned seller's breach of exclusive sales agreement with buyer)

The legislative history of the Convention reveals that Professor Farnsworth (U.S.A delegate at the Vienna Diplomatic Conference) proposed that the seller should "be permitted to determine the manner in which he intended to remedy his failure to perform." This proposal was rejected. See OR 352, paras. 31-35 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March 1980, A/CONF. 97/19].

25. For a detailed analysis of the seller's obligations under the Convention, see Schlechtriem P., "The Seller's Obligations Under the United Nations Convention on Contracts for the International Sale of Goods", in Galston & Smit ed., International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender (1984), Ch. 6, pp. 6-1 to 6-35; also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem10.html>.

26. Regarding the obligations of the seller under the Convention, see the text of the Convention, Chapter II Obligations of the Seller (Art. 30), Sections I Delivery of the Goods and Handing Over of Documents (Arts. 31 - 34) and II Conformity of the Goods and Third Part Claims (Arts. 35 - 44). The buyer's remedies for seller's breach of these obligations are set forth in Section III Remedies for Breach of Contract by the Seller (Arts. 45 - 52).

27. See CISG Art. 6 [The contract and the Convention (primacy of the contract)]:

See also the Text of Secretariat Commentary on Art. 5 of the 1978 Draft [draft counterpart of CISG Art. 6], available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-06.html>:

The text of CISG article 6 and Art. 5 of the 1978 Draft are identical. The Secretariat Commentary on Art. 5 of the 1978 Draft should therefore be relevant to the interpretation of CISG Art. 6; see match-up of CISG Art. 6 with Art. 5 of the 1978 Draft, at <http://cisgw3.law.pace.edu/cisg/text/matchup/matchup-d-06.html>.

28. Note that CISG Art. 46 must be read in conjunction with CISG Art. 28; see Section II, supra. See also Secretariat Commentary on Art. 58 of the 1978 Draft [draft counterpart of CISG Art. 62], available at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-62.html>, Comment 6, supra.

In addition to such limitations as may be present under the lex fori (CISG Art. 28) and which are contained in CISG Art. 46, the buyer's right to require specific performance may be subject to additional restrictions that ensue from the application of CISG Arts. 7, 9(1), 77, 85, 86, and 88(2). See Kritzer, op. cit., at 351-352, and accompanying references therein.

29. The remedies of specific performance and avoidance are inconsistent with each other. See CISG Art. 81(1) [Effect of avoidance], which provides the following:

Similarly, a buyer's declaration of a reduction of the price under CISG Art. 50 is inconsistent with the remedy of specific performance. See the Text of Secretariat Commentary on Art. 42 of the 1978 Draft
[draft counterpart of CISG Art. 46], Comment 7.

On the contrary, an action for damages for breach of contract (CISG Art. 74) is not inconsistent with a request for specific performance. See the Secretariat Commentary:

30. See Enderlein and Maskow, op. cit., at 178:

31. The reference to "repair" in paragraph (3) of Article 46 was added at the Diplomatic Conference. See Kritzer, op. cit., at 347, where the author comments:

See also Conference relevant colloquy: OR 335-337, paras. 11-45 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March - 11 April 1980, A/CONF. 97/19].

Cf. Under the U.S. Uniform Commercial Code substitute goods or repair are not normally available to an aggrieved buyer unless volunteered by the seller, e.g. in an attempt to cure non-conforming goods under UCC 2-508. See Flechtner H., "Remedies under the New International Sales Convention", 8 J.L. & Com. (1988) 58, n.27, available online at <http://cisgw3.law.pace.edu/cisg/biblio/flecht.html> where the author comments that, under the UCC

32. Note that the buyer who requires substitute goods under this provision must comply with CISG Art. 82 regarding restitution of the goods he received. See the Secretariat Commentary on CISG Art. 46:

Cf. Enderlein & Maskow, op. cit., at 179, where the authors make the following comment:

33. The reason for such restriction to specific performance is made clear in the Secretariat Commentary:

34. For the definition of fundamental breach, see CISG Art. 25: A fundamental breach with regard to non-conformity of the goods occurs when the delivery of the defective goods substantially deprives the buyer of what the buyer is entitled to expect under the contract. For an analysis of the concept of fundamental breach and its application under the Convention, see Koch R., "The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods", in Pace ed., Review of the Convention on Contracts for the International Sale of Goods, 1998, Kluwer Law International (1999) 177 - 354; also available online at <http://cisgw3.law.pace.edu/cisg/biblio/koch.html>.

A fundamental breach under CISG Art. 46(2) has to be determined in the same way as under article 49 and in accordance with the general definition given in CISG Art. 25.

See the UNCITRAL Digest of case law on CISG Art. 46 (A/CN.9/SER.C/DIGEST/CISG/46 [8 June 2004]), available online at <http://cisgw3.law.pace.edu/cisg/text/anno-art-46.html#ucd>, which makes the remarks quoted below (with accompanying references to corresponding case law):

See also UNCITRAL Digest of case law on CISG Art. 46, op. cit.:

35. In that case, the buyer must request substitute goods either in conjunction with a notice of non-conformity (CISG Arts. 39 and 43) or within a reasonable time thereafter (CISG Art. 46(2)).

In other words, the buyer forfeits his right by failure to give the required notice. The buyer is also entitled to set an additional period of time for performance in accordance with CISG Art. 47.

See also Enderlein & Maskow, op. cit., at 180, where the authors note:

36. Also in that case, the buyer must make the request for repair either in conjunction with a notice of non-conformity (CISG Arts. 39 and 43) or within a reasonable time thereafter (CISG Art. 46(3)). In other words, the buyer forfeits his right by failure to give the required notice. The buyer is also entitled to set an additional period of time for performance in accordance with CISG Art. 47.

37. In the case where the non-conformity of the goods is insubstantial, a request to repair is less onerous and more efficient than delivery of substitute goods. Note that the buyer's right to remedy the lack of conformity of the goods may be exercised in various ways. See the Secretariat Commentary on CISG Art. 46, op. cit.:

See also Enderlein & Maskow, op. cit., at 180, where the authors opine that the seller has an obligation to bear all costs involved in the repair of non-conforming goods: "Cure includes delivery of spare parts, and substitution of parts as well as repair itself." The authors, ibid., further note: "If there is a third party right or claim in respect of the goods, the cure may be such that the seller buys a patent or a license, or redeems a pledge or other right in title."

38. See Honnold (1999), op. cit., at 309, where the author informs that at the Diplomatic Conference it was noted that "some minor repairs could be made more readily by the buyer, particularly when the seller's facilities for repair are in a foreign country. The statutory language was designed to encourage a reasonable and flexible approach to such cases."

See also Kritzer, op. cit., at 348, where the author explains that the proviso of reasonableness in CISG Art. 46(3) was "so phrased to allow the courts to take into account the relative practicality of repairs for both buyer and seller" [references omitted and emphasis added].

See also Enderlein & Maskow, op. cit., at 180-181, where the authors comment:

It must also be noted that, in addition to being specifically mentioned in CISG Art. 46(3), reasonableness is a general principle of the Convention. For further views of commentators (Vilus, Schlechtriem, van der Velden, Maskow, Bonell and Honnold) on references to reasonableness in the CISG, go to <http://cisgw3.law.pace.edu/cisg/text/reason.html#view>.

39. For commentary and relevant case law on the buyer's right to require repair of non-conforming goods, see UNCITRAL Digest of case law on CISG Art. 46, op. cit.:

40. Regarding the obligations of the buyer under the Convention, see the text of the Convention, Chapter III, Obligations of the Buyer (Art. 53), Sections I Payment of the Price (Arts. 54 - 59) and II Taking Delivery (Art. 60). The seller's remedies for buyer's breach of the latter's corresponding obligations are set forth in the C