(A/CONF.97/C.1/L.135, L.161, L.180, L.199)
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[Joint Proposal of Finland, Germany, Federal Republic of, Norway and Sweden (A/CONF.97/C.1/L.199):
"(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 not reasonably practicle for the seller. A request for repair must be made either in conjunction with notice given under article 37 [became CISG article 39] or within reasonable time thereafter."]
11. Mr. SEVÓN (Finland), introducing the joint proposal by the Federal Republic of Germany, Finland, Norway and Sweden (A/CONF.97/C.1/L.199), said that it dealt only with the question of repair and not with the delivery of substitute goods, on which the delegations concerned held differing views. The joint proposal was mainly based on the wording of the original amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.135). The right to repair was not unlimited under the joint proposal since in some cases the buyer's right to a reduction in price and damages constituted an adequate remedy, particularly when the goods concerned could easily be repaired by him or when the cost of repair to the seller would be unreasonably high.
12. Mr. BONELL (Italy) said his delegation was in favour of expressly mentioning the buyer's right to repair in the Convention but could not support the joint proposal since it left intact the requirement in paragraph 2 that the lack of conformity should constitute a fundamental breach. The buyer's right to ask for substitute goods or repair depended upon the character of the goods as was made clear in ULIS article 42, and not on the character of the breach. That condition should be deleted from paragraph 2.
13. Mr. WIDMER (Switzerland) agreed with the Italian representative that the joint proposal did not cover the entire problem. He inquired whether the representative of the Federal Republic had withdrawn his delegation's original proposal (A/CONF.97/C.1/L.135) which had dealt jointly with the question of repair and substitute goods and had eliminated the condition of fundamental breach.
14. The CHAIRMAN said that the question of substitute goods would have to be dealt with separately, since the joint proposal did not refer to it.
15. Mr. GHESTIN (France) commented that the joint proposal had the merit of stating the buyer's right to repair but that the restrictive clause did not take sufficient account of the interest of the buyer, who should in some cases have the right to insist on repair even if repair would put the seller to considerable inconvenience. He proposed the addition of the words "due account being taken of the legitimate interests of the buyer" at the end of the first sentence.
16. Mr. KRISPIS (Greece) supported the joint proposal as orally amended by the French representative. The problem of paragraph 2, however, remained. He favoured the idea that the buyer should have a choice between substitute goods or repair whether or not there had been a fundamental breach.
17. Mrs. SOARES (Portugal) favoured the joint proposal without the French oral amendment.
18. Mrs. KAMARUL (Australia) said that the concept of specific performance under discussion was wider than that customary under Australian law but that her delegation could see the reason for it in international trade and supported the clarification of the buyer's right to repair.
19. Mr. MASKOW (German Democratic Republic) supported the joint proposal without the French oral amendment. It had appeared from the earlier discussion that a seller could not refuse repair for reasons of cost. The words "reasonably practicable" referred to technical possibility. The joint proposal must be linked with the proposal on substitute goods by the Federal Republic of Germany and the matter of drafting must be considered: it would be preferable to have them both, if they were both adopted, in one and the same paragraph.
20. Mr. ROGNLIEN (Norway) said there was no disagreement as to the importance of the interests of the buyer. That was the underlying idea of the joint proposal and the French oral amendment was not required. A further duty to repair in particular cases would depend upon the interpretation of the contract, read in conjunction with article 7(3) [became CISG article 8(3) ] of the Convention. It was usual for sellers of factory plant and machines to provide assistance with service and maintenance and to have an establishment in the buyer's country competent to effect repairs. In the case of the raw materials, however, it would often not be reasonable or practicable to insist on the right to repair. What was reasonable or practicable would depend inter alia on the nature of the goods and the seller's establishment.
21. Mr. DATE-BAH (Ghana) said that his country's domestic law did not provide for the buyer's right to repair, but he was attracted by the idea of such a remedy for non-conforming plant and machinery, which were particularly important in developing countries. He also supported the French oral amendment, since in such countries it was very unlikely that local staff would be competent to make the necessary repair and however inconvenient to the seller, he should be required to send qualified technicians. He could not agree with the representative of the German Democratic Republic that the phrase "not reasonably practicable" did not include a consideration of costs. It should easily be so interpreted by the courts. It would be better to reword the phrase to read "not technically feasible".
22. Mr. SAMI (Iraq) supported the joint proposal with the French oral amendment, which balanced the interests of the two parties. The concept of the buyer's right to repair, however, was unknown to his country's domestic legislation.
23. Mr. ZIEGEL (Canada) supported the joint proposal which dealt with a common situation in the sale of machinery and other durables. The seller generally expected to undertake to repair or to replace defective goods. However, he suggested that in the second line of the joint proposal the words "by repair" should be omitted or alternatively, if it was desired to retain them, they should be followed by the words "or otherwise".
24. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that serious attention should certainly be paid to the interests of the buyer, and that some measure of objectivity should be introduced into the criteria relating to the removal of defects. He did not consider that such objectivity was ensured by the wording of the draft amendment and consequently proposed the deletion of the words "for the seller" at the end of the first sentence of the new paragraph 3. If those words were deleted, he would be able to support the draft amendment (A/CONF.97/C.1/L. 199).
25. The CHAIRMAN remarked that the purpose of the French and the USSR amendments seemed to be similar and wondered if they could be combined.
26. Mr. GHESTIN (France) said that he could agree to the amendment proposed by the USSR representative but preferred his own because the idea of what was reasonably practicable more specifically applied to the situation of the seller. For the buyer the matter was not one of possibility but, as his amendment put it, of "legitimate interests".
27. Mr. WANG Tian ming (China) said that his delegation supported the French subamendment, which took into account the interests of both seller and buyer. He suggested that the new paragraph 3 should be inserted before paragraph 2 and the paragraphs re-numbered accordingly.
28. Mr. FARNSWORTH (United States of America) said that the proposed new paragraph seemed reasonable although it had no counterpart in the domestic law of the United States, or of other common law countries. He did not consider that the words "reasonably practicable for the seller" would allow the courts to take into account the relative practicability of repairs for both buyer and seller and wondered if more specific wording might not be helpful. He was not sure that either the French or the USSR amendment clarified that point and suggested the introduction of a phrase such as "taking account of the circumstances of the seller and the buyer".
29. Mr. SEVÓN (Finland) informed the Committee that the French and the USSR amendments, which seemed similar, would both be acceptable to the sponsors of the joint proposal. The United States amendment would also be acceptable to his own delegation.
30. The CHAIRMAN suggested that the representatives of France, the Soviet Union and the United States should try to harmonize their amendments.
31. Mr. PLUNKETT (Ireland) suggested that the Canadian draft amendment should be voted on first because it related to the scope of the whole article.
32. The CHAIRMAN said that he had heard little support of that proposal, probably because it was very close to paragraph 1 of the existing draft article.
33. Mr. FELTHAM (United Kingdom) said that the Canadian proposal seemed to relate more closely to the question of delivery of substitute goods than to that of repair.
34. Mr. ZIEGEL (Canada) explained that he had had in mind, not so much the delivery of substitute goods, as the completion of performance by the delivery of essential, albeit small components, required for complicated machinery.
35. After a discussion in which Mr. ROGNLIEN (Norway), Mr. FARNSWORTH (United States of America), Mr. DATE-BAH (Ghana), Mr. KRISPIS (Greece) and Mr. HJERNER (Sweden) took part, the CHAIRMAN proposed that the representatives who had made oral amendments should try to combine them into a joint proposal.
36. It was so agreed.
The meeting was suspended at 11.20 a.m. and resumed at 11.45 a.m.
37. The CHAIRMAN announced that the representatives who had proposed oral subamendments had agreed on a joint text which was acceptable to the sponsors of the joint draft amendment (A/CONF.97/C.1/L.199). The new paragraph 3 had accordingly been revised to read: "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 not reasonable, taking into account all the circumstances."
38. The joint draft amendment as so revised was adopted.
39. The CHAIRMAN asked the Canadian representative whether he maintained his oral amendment.
40. Mr. ZIEGEL (Canada) thought that the insertion of words "or otherwise" after "repair" would clarify the new paragraph 3. The point at issue was that the seller should be required to put the goods in an operable condition, which might involve replacement rather than repair. The addition of the words "or otherwise" should remove any ambiguity.
41. Mr. HJERNER (Sweden) said that although he sympathized with the Canadian representative's desire to eliminate ambiguity, he could not accept his restrictive interpretation of the word "repair".
42. Mr. DATE-BAH (Ghana) agreed.
43. Mr. FELTHAM (United Kingdom) said that he was in agreement with the representatives of Ghana and Sweden and was opposed to the Canadian amendment.
44. The CHAIRMAN said that as the Canadian proposal did not appear to have wide support, he took it that the Committee wished to reject it.
45. It was so agreed.
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