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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 62 case law [reproduced with permission of UNCITRAL] [*]

Article 62

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 this requirement.

OVERVIEW

1. Article 62 entitles the seller to require the buyer to perform its obligations. This remedy is generally recognized in civil law systems, whereas common law systems generally allow for the remedy (often under the designation "specific performance") only in limited circumstances.[1] Article 62 parallels article 46, which also provides this remedy for a buyer who suffers a breach of contract by the seller.[2] Within the section on the seller's remedies, the right to performance of the buyer's obligations is set forth at the beginning of the various remedies available to the seller, mirroring the position occupied by the buyer's parallel remedy for breach of contract by the seller.[3]

2. Article 62 is frequently implemented or cited by judges and arbitrators in that it enables the seller to require payment of the price of the goods sold.[4] On the other hand, as shown in case law, it is very rare that a seller takes legal action to claim specific performance of the obligation to take delivery of the goods[5] or that court decisions cite article 62 in connection with the obligation to take delivery.[6] Most often, the seller prefers, when faced with a buyer who refuses to take delivery of the goods, to avoid the contract and claim damages.

General Conditions Relating to the Seller's Right to Require Performance

3. As can be seen from the provision, the seller's right to require performance applies to all the buyer's obligations. The seller has to have suffered a breach of contract,[7] but the nature and extent of the breach are immaterial.

4. The right to require performance under article 62 is subject to two kinds of limitations: the first is set forth in article 62 itself; the second results from article 28.

5. Under article 62, a seller is deprived of the right to require the buyer to perform its obligations if it has "resorted to a remedy which is inconsistent" with requiring performance. Cases of inconsistency are varied. Inconsistency exists, inter alia, in the event of avoidance (article 64)[8] or, where an additional period of time has been fixed for performance by the buyer (article 63(1)), during that period (article 63(2)). Similarly, a seller who sold goods which had to be preserved by the seller as provided for in article 88 is deprived of the right to require the buyer to take delivery of them.

6. The second limitation derives from article 28 of the Convention, under which a court is not bound to order specific performance in the seller's favour, even if that would otherwise be required under article 62, if the court would not do so under its domestic law in respect of similar contracts not governed by the Convention.[9]

Implementation

7. In order to be able to rely on its rights under article 62, a seller has to "require" performance of the buyer's obligations. Accordingly, there must be a clear demand by the seller that the buyer fulfil the obligation at issue.[10] No prior notice of the breach or other particular formality on the part of the seller is necessary.

8. The seller's right to require the buyer to perform its obligations is not confined by the Convention to a particular period of time.[11] This right is subject to the normal periods of limitation imposed by applicable national law or, insofar as it applies, by the Convention on the Limitation Period in the International Sale of Goods.


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

1. For further comments on the matter, see the Digest for article 28, paragraph 1.

2. See the Digest for article 46.

3. See the Digest for article 46.

4. [SLOVAKIA District Court in Komarno 24 February 2009]; CLOUT case No. 1020 [SERBIA Foreign Trade Court of Arbitration at the Serbian Chamber of Commerce 28 January 2009]; [SERBIA Foreign Trade Court of Arbitration at the Serbian Chamber of Commerce 5 January 2009]; [GREECE Polimeles Protodikio Athinon 2009 (docket no. 4505/2009)]; [SLOVAKIA Okresný súd Bratislava III, 22 May 2008]; [CHINA Zhèjing shng gojí rénmín fyuàn (High People's Court of Zhejiang Province), People's Republic of China, 24 April 2008]; [GERMANY Oberlandesgericht Karlsruhe 14 February 2008]; [SLOVAKIA Okresný súd Banská Bystrica 7 March 2008]; [GERMANY Oberlandesgericht Köln 14 January 2008]; [HUNGARY Igazságügyi tanács Szeged 22 November 2007]; [SLOVAKIA Okresný súd Bratislava 7 November 2007]; [HUNGARY Csongrád Megyei Bíróság 6 June 2007]; [UKRAINE Hospodars'kyy sud Donets'koï oblasti Commercial Court of Donetsk Region 13 April 2007]; [RUSSIA Tribunal of International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation 29 December 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 15 November 2006]; [GERMANY Landgericht Bamberg 23 October 2006]; CLOUT case No. 826 [GERMANY Oberlandesgericht München 19 October 2006]; [GERMANY Landgericht Hof 29 September 2006]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 20 September 2006]; [SLOVAKIA Krajskýsúd Nitra 23 June 2006]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, June 2006]; CLOUT case No. 911 [SWITZERLAND Cour de Justice de Genève 12 May 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 7 April 2006]; [GERMANY Oberlandesgericht Köln 3 April 2006]; [RUSSIA Arbitration proceeding [37/2005] 9 March 2006]; [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 15 February 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 February 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 January 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 January 2006]; [GREECE Efetio Athinon (Court of Appeals of Athens) 2006 (docket No. 4861/2006)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 December 2005]; [UKRAINE International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, 19 September 2005]; [CHINA International Economic and Trade Arbitration Commission, China, 2 September 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 2 June 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 10 February 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 24 January 2005]; [SWITZERLAND Handelsgericht des Kantons Bern 22 December 2004]; [UKRAINE International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry 19 October 2004]; [GERMANY Landgericht Kiel 27 July 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 28 June 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 June 2004]; [SERBIA Foreign Trade Court of Arbitration at the Serbian Chamber of Commerce 27 May 2004]; [GERMANY Oberlandesgericht Düsseldorf 21 April 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 20 April 2004]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 9 April 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 19 March 2004 (Arbitral award No. 135/2003)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 12 March 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 24 February 2004]; [SWITZERLAND Tribunal fédéral 19 February 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 February 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 3 February 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 2 February 2004]; [GERMANY Landgericht Bielefeld 12 December 2003]; [GERMANYOberlandesgericht Rostock 27 October 2003]; [SWITZERLAND Cour de Justice de Genève 19 September 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 September 2003]; [GERMANY Oberlandesgericht Rostock 15 September 2003]; [GERMANY Landgericht Hamburg 10 September 2003]; [GERMANY Landgericht Bielefeld 15 August 2003]; [GERMANY Landgericht Mönchengladbach 15 July 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 30 May 2003]; [GERMANY Landgericht Gießen 18 March 2003]; CLOUT case No. 496 [BELARUS Choziajstviennyj sud Homieskoj oblasti (Economic Court of the Gomel region) 6 March 2003]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 17 February 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 February 2003]; [BELARUS Vysšjeho Choziajstviennoho Suda Riespubliki Bielaru (Supreme Economic Court of the Republic of Belarus) 3 January 2003]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 27 December 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 10 December 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 2 December 2002]; [BELGIUM Hof van Beroep Gent 2 December 2002]; [CHINA Húbi shng whàn shì zhngjí rénmín fyuàn (Wuhan Intermediate People's Court of Hubei Province), People's Republic of China, 9 September 2002]; CLOUT case No. 636 [ARGENTINA Cámara Nacional de Apelaciones en lo Comercial de Buenos Aires 21 July 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 7 June 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 6 April 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 22 March 2002]; [GERMANY Landgericht München 27 February 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 22 January 2002]; [GERMANY Landgericht Hamburg 21 December 2001]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 25 September 2001]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 July 2001]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 30 May 2001]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 25 January 2001]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 6 December 2000]; [FRANCE Cour d'appel de Paris 12 October 2000]; [UKRAINE International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, 8 September 2000]; [AUSTRIA Oberlandesgericht Graz 15 June 2000]; CLOUT case No. 380 [ITALY Tribunale di Pavia 29 December 1999]; CLOUT case No. 807 [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 30 June 1999 (Peppermint oil case)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 11 June 1999]; CLOUT case No. 333 [SWITZERLAND Handelsgericht des Kantons Aargau 11 June 1999]; CLOUT case No. 265 [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 25 May 1999]; CLOUT case No. 470 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 22 October 1998]; CLOUT case No. 469 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 6 October 1998]; CLOUT case No. 344 [GERMANY Landgericht Erfurt 29 July 1998]; [GERMANY Landgericht Berlin 24 March 1998]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 10 January 1998]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 29 September 1997]; CLOUT case No. 217 [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997]; CLOUT case No. 273 [GERMANY Oberlandesgericht München 9 July 1997]; CLOUT case No. 283 [GERMANY Oberlandesgericht Köln 9 July 1997]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 26 June 1997]; CLOUT case No. 464 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 11 June 1997]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 25 February 1997]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 12 February 1997]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2 April 1997]; [GERMANY Amtsgericht Koblenz 12 November 1996]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 8 October 1996]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 30 August 1996]; CLOUT case No. 376 [GERMANY Landgericht Bielefeld 2 August 1996]; [SWITZERLAND Swiss Chambers' Court of Arbitration and Mediation 31 May 1996]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 16 May 1996]; [NETHERLANDS Arrondissementsrechtbank Amsterdam 15 May 1996]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 19 March 1996]; CLOUT case No. 211 [SWITZERLAND Tribunal Cantonal de Vaud 11 March 1996]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 December 1995]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 1 December 1995]; [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 17 November 1995 (Arbitral award No. VB/94124)] ; CLOUT case No. 170 [GERMANY Landgericht Trier 12 October 1995]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 15 May 1995]; CLOUT case No. 410 [GERMANY Amtsgericht Alsfeld 12 May 1995]; CLOUT case No. 135 [GERMANY Oberlandesgericht Frankfurt 31 March 1995]; CLOUT case No. 134 [GERMANY Bundesgerichtshof 8 March 1995]; CLOUT case No. 139 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 3 March 1995]; [GERMANY Amtsgericht Nordhorn 14 June 1994]; [GERMANY Landgericht Hannover 1 December 1993]; [MEXICO Comisión para la Protección del Comercio Exterior de México 4 May 1993]; CLOUT case No. 104 [ICC Arbitration Court of the International Chamber of Commerce, 1993 (Arbitral award No. 7197)].

5. See [CHINA Zhèjing shng gojí rénmín fyuàn (High People's Court of Zhejiang Province), People's Republic of China, 24 April 2008]; [GERMANY Oberlandesgericht Hamburg 14 December 1994]; [GERMANY Landgericht Hamburg 5 November 1993]; cf. CLOUT case No. 133 [GERMANY Oberlandesgericht München 8 February 1995] (see full text of the decision).

6.[GREECE Polimeles Protodikio Athinon 2009 (docket no. 4505/2009)] (English abstract available); CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998]; CLOUT case No. 217 [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997]; [ICC Court of Arbitration of the International Chamber of Commerce, January 1997 (Arbitral award No. 8786)].

7. See article 61(1): "If the buyer fails to perform any of his obligations …."

8. See the commentary on the draft Convention prepared by the UNCITRAL secretariat in regard to draft article 58, paragraph 10.

9. See the Digest for article 28.

10. For a similar assertion, see the Digest for article 46.

11. For a comparable observation concerning the implementation of article 46, see the Digest for article 46.


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