UNCITRAL Digest of Article 62 case law

DIGEST OF ARTICLE 62 CASE LAW

The right to require specific performance

1. This provision entitles the seller to require the buyer to perform its obligations, a remedy generally recognised in civil law systems, whereas common law systems only allow for specific performance in limited circumstances.[1]

2. This provision is designed to assist sellers who have a particular interest in the performance by the buyer, in particular the obligation to take delivery of the goods. However, illustrations of recourse to this remedy in case law, involving the hypothesis that a buyer refuses to take delivery, are rare.[2] Illustrations of the application of article 62 to the payment of the purchase price, on the other hand, are numerous.[3]

Limitations of the right to require specific performance

3. The right to require performance does, however, have two kinds of limitations. One emerges clearly from the wording of the provision: the seller is deprived of this right if it has resorted to a remedy which is inconsistent with the seller insisting upon the specific performance, as in the case where it had declared the contract avoided (art. 64) or fixed an additional period of time for performance (art. 63). The second limitation is related to the application of article 28. Thus, the competent judge is not bound to order specific performance on behalf of the seller as required under article 62 if the judge would not do so under its domestic law in respect of similar contracts.

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. On this problem, see the compromise established by article 28.

2. For a general statement, see CLOUT case No. 133 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g1.html>] (see full text of the decision).

3. See [GERMANY Landgericht [District Court] Mönchengladbach 15 July 2003, available online at <http://cisgw3.law.pace.edu/cases/030715g1.html>]; [BELGIUM Beroep [Appellate Court] Gent 2 December 2002, available online at <http://cisgw3.law.pace.edu/cases/021202b1.html>]; [ARGENTINA Cámara Nacional de los Apelaciones en lo Comercial [Appellate Court] 21 July 2002, available online at <http://cisgw3.law.pace.edu/cases/020721a1.html>]; [GERMANY Landgericht [District Court] München 27 February 2002, available online at <http://cisgw3.law.pace.edu/cases/020227g1.html>]; CLOUT case No. 344 [GERMANY Landgericht [District Court] Erfurt 29 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980729g1.html>]; CLOUT case No. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>]; CLOUT case No. 376 [GERMANY Landgericht [District Court] Bielefeld 2 August 1996; available at <http://cisgw3.law.pace.edu/cases/960802g1.html>]; CLOUT case No. 135 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 31 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950331g1.html>]; CLOUT case No. 134 [GERMANY Oberlandesgericht [Appellate Court] München 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g1.html>]; CLOUT case No. 104 [ICC International Court of Arbitration, case No. 7197 of 1992; available at <http://cisgw3.law.pace.edu/cases/927197i1.html>].