[Federal Republic of Germany (A/CONF.97/C.1/L.211):
Revise the first sentence of article 74 [became CISG article 85 ] to read as follows:
"If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are concurrent conditions, if he is in delay in paying the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them."]
79. Mr. KLINGSPORN (Federal Republic of Germany) said that article 74 [became CISG article 85 ] dealt with the seller's obligation to preserve the goods if the buyer was slow in taking delivery. The existing text assumed that the seller was ready to deliver the goods. The seller might however be inclined to keep them if the delivery of goods and the payment of the price were concurrent conditions and if the buyer failed to pay the price. That case was given as an example in the commentary on article 74 [became CISG article 85 ] (A/CONF.97/5, p.193). His delegation accordingly proposed (A/CONF.97/C.1/L.211) that article 74 [became CISG article 85 ] should be explicity broadened to cover cases in which the payment of the price and the delivery of the goods were to be effected simultaneously and where the buyer was slow in paying.
80. Mr. PLANTARD (France) considered that the proposed change was unnecessary as the existing text, "if the buyer is in delay in taking delivery of the goods . . . ", did not specify the reasons for the delay and could cover the case envisaged in the amendment, namely, that the buyer delayed payment.
81. Mr. KRISPIS (Greece) agreed.
82. Mr. SEVÓN (Finland), supported by Mr. VINDING KRUSE (Denmark), Mr. FOKKEMA (Netherlands) and Mr. ROGNLIEN (Norway), supported the proposal by the Federal Republic of Germany. It was not certain that article 74 [became CISG article 85 ] in fact covered the case in which the buyer was slow in paying, since it might happen that the buyer wished to take delivery without paying. It would therefore be useful to clarify article 74 [became CISG article 85 ] in the manner suggested by the Federal Republic of Germany.
83. The proposal (A/CONF.97/C.1/L.211) was adopted by 19 votes to 5.
84. Mr. LEBEDEV (Union of Soviet Socialist Republics) remarked that the text of the amendment just adopted was not completely clear. It was hard to see how one of the parties could be in delay in performing his obligation when the two parties had to discharge their obligations simultaneously.
(. . . )