UNCITRAL Digest of Article 83 case law

DIGEST OF ARTICLE 83 CASE LAW

In general

1. Article 83 states that although a buyer may have lost the right to avoid the contract or to require the seller to deliver substitute goods under article 82 it retains its other remedies, whether those remedies have their origin in provisions of the contract or in the CISG itself. Decisions have devoted very little attention to article 83. The provisions of Chapter V Section V of the CISG ("Effects of avoidance"), which includes article 83,[1] have been cited in support of certain broad propositions concerning avoidance under the Convention. Thus it has been asserted that "[t]he avoidance of the contract is thus a constitutive right of the buyer, which changes the contractual relationship into a restitutional relationship (arts. 81-84 CISG)".[2] And in a decision finding that a buyer was not responsible for damage to goods that occurred while they were being transported by carrier back to the seller following the buyer's avoidance of the contract, the court asserted that "Articles 81-84 CISG contain at their core a risk distribution mechanism, which within the framework of the reversal of the contract (restitution), overrides the general provisions on the bearing of risk contained in Art. 66 et. seq. CISG".[3] In addition, an arbitral tribunal has asserted that where the contract is terminated, and damages for failure to perform are claimed under art. 74 CISG et seq., one uniform right to damages comes into existence, which can be compared to the right to damages for non-performance under the applicable domestic law and prevails over the consequences of the termination of a contract provided for in articles 81-84 CISG.[4]

2. Furthermore, in one decision, a buyer was found to have lost the right to avoid the contract both because the buyer failed to set an additional period of time for performance under article 47, and because the buyer was unable to make restitution of the goods as required by article 82; the court noted that the buyer nevertheless retained a right to damages for breach of contract (although the buyer had not sought them), but the court did not cite article 83 in support of its assertion.[5]

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. Chapter V Section V comprises Articles 81 through 84 of the CISG.

2. [GERMANY Landgericht [District Court] Düsseldorf 11 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951011g1.html>].

3. [AUSTRIA Oberster Gerichtshof [Supreme Court] 29 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990629a3.html>].

4. CLOUT case No. 166 [GERMANY Hamburg Arbitration award of 21 March / 21 June 1996; available at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>] (see full text of the decision).

5. CLOUT case No. 82 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g2.html>].