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LEGISLATIVE HISTORY

Legislative history of CISG article 46: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 42

(1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.

(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach and a request for substitute goods is made either in conjunction with notice given under article 37 or within a reasonable time thereafter.


 

[Paragraphs (1) and (2) are for all practical purposes identical. Paragraph (3) was added at the Vienna Conference.]

  

CISG article 46

(1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with such requirements.

(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

(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 unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter.


Editorial comments

The Secretariat Commentary on 1978 Draft article 42 should be regarded as relevant to the interpretation of CISG article 46(1) and 46(2). The Summary Records of Committee Meetings of the Vienna Diplomatic Conference contain the following information relevant to CISG article 46(3). Vienna Conference proposals that led to the text of paragraph (3). "Mr. SEVON (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 ... Mr. FARNSWORTH (United States of America) said that the proposed 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' [in the original proposal] 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.... [The representatives met to combine them into the first sentence of paragraph (3) which was approved as quoted above]" (Official Records, pp. 335-336). Modification considered but not approved. "Mr. ZIEGEL (Canada) ... suggested that ... 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'.... 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. 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'. Mr. DATE-BAH (Ghana) agreed. Mr. FELTHAM (United Kingdom) said that he was in agreement with the representatives of Ghana and Sweden and was opposed to the Canadian amendment. 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. It was so agreed" (Official Records, pp. 336-337). The Secretariat Commentary on 1978 Draft article 42 should be read in conjunction with these comments on CISG article 46(3).


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG