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LEGISLATIVE HISTORY

Legislative history of CISG article 48: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 44

(1) Unless the buyer has declared the contract avoided in accordance with article 45, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without such delay as will amount to a fundamental breach of contract and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. The buyer retains any right to claim damages as provided for in this Convention.

(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.

(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under paragraph (2) of this article, that the buyer make known his decision.

(4) A request or notice by the seller under paragraphs (2) and (3) of this article is not effective unless received by the buyer.

  

CISG article 48

(1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention.
 
 

(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not during that period of time, resort to any remedy which is inconsistent with performance by the seller.

(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision.

(4) A request or notice by the seller under paragraphs (2) and (3) of this article is not effective unless received by the buyer.


Editorial comments

Paragraphs (2) and (4) of CISG article 48 and 1978 Draft article 44 are identical; paragraph (3) is substantively identical (the only difference being a substitution of "under the preceding paragraph" for "under paragraph (2) of this article"). The Secretariat Commentary on 1978 Draft article 44(2), (3) and (4) should therefore be relevant to the interpretation of CISG article 48(2), (3) and (4). With respect to paragraph (1), there were two changes, discussed below: The substitution of "Subject to article 49" for "Unless the buyer has declared the contract avoided in accordance with article 49 [1978 Draft counterpart to CISG article 49]". Three alternatives were proposed. Alternative I: Delete the words "Unless the buyer has declared the contract avoided in accordance with [CISG article 49]." Alternative II: Delete these words and substitute the words "Subject to [CISG article 49]". This is the amendment that was approved. Alternative III: Qualify seller's right to avoid by adding to [CISG article 49(1)(a)] the words "... and the seller does not remedy the failure in accordance with [CISG article 48]" (said to be a clarification of alternative I and that, in fact, the two constitute a single proposal). Conference comments on alternatives I and III included the following. "Mr. KLINGSPORN (Federal Republic of Germany) said that ... his delegation had submitted [a proposal identical to alternative I]. The existing text created a situation which was neither satisfactory nor logical. If for example, the seller delivered a machine on the date fixed and the machine, once it was installed, failed to work in a satisfactory manner, that should not be regarded as a fundamental breach of contract and the buyer should not be able to declare the contract avoided if the seller was prepared to remedy the fault within a reasonable time. The seller's right to remedy his failure to perform should prevail over the buyer's rights. The situation should also be clarified in respect of [CISG article 49]" (Official Records, p. 341). "Mr. FELTHAM (United Kingdom)said that he shared the view of those who felt unable to accept the amendment proposed by ... the Federal Republic of Germany. In support of its amendment, the latter delegation had mentined the example of a machine which had been delivered but did not work. If the machine could be repaired within a few days, there was no fundamental breach, which was what [CISG article 48] was concerned with. Conversely, the case should be considered where the seller had delivered a machine which in no way fulfilled the buyer's explanations, whereupon the latter lost confidence and did not even wish the seller to attempt to repair it. The buyer should be able to declare the contract avoided at that point without having to listen to the seller's arguments. Hence, the first phrase of [CISG article 48(1)] should be kept" (Official Records, pp. 341-342). Alternatives I and III were rejected. Alternative II was accepted with minimal discussion (Official Records p. 352). Honnold believes that this revision improved the posture of the seller by protecting his right to cure "if the buyer hastily declared the contract avoided before the seller has an opportunity to cure the defect" (Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 2d ed. (Kluwer 1991), p. 376). Others disagree. Ziegel, for example, sees "no material difference ... between the opening words of old article 44(1) and their successors in the Convention" (Ziegel, International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Galston & Smit eds. (Matthew Bender 1984), p. 9-22). Lookofsky states: "The 'subject to' reference in article 48(1) to article 49 is less than clear. However, where time is not of the essence, the seller should have the chance to cure even a seriously non-conforming delivery; in this situation, most commentators therefore agree that the seller's right to cure is not defeatable by a buyer's exercise of his right to avoid for a fundamental breach. . . ." (Lookofsky, "The 1980 United Nations Convention on Contracts for the International Sale of Goods", International Encyclopaedia of Laws, Blanpain, gen. ed. (Kluwer 1993), p. 94). The substitution of "if he can do so without such delay as will amount to unreasonable delay" for "if he can do so without such delay as will amount to a fundamental breach of contract". "Mr. ROGNLIEN (Norway) ... thought that ... the ... text of article 44 [of the 1978 Draft ... might be misleading owing to the combined reference to avoidance and to the words 'if he can do so without such delay as will amount to a fundamental breach of contract'. The said delay was already a part of the fundamental breach under [CISG article 49] on which the right of avoidance was based.... Article 44(1) [of the 1978 Draft] as worded at present might be taken to imply that the buyer could declare the contract avoided even if a fundamental breach had not yet fully developed in time" (Official Records, p. 341). "Mr. KHOO (Singapore) explained that [this] amendment was intended to make it easier to understand the principle stated in [CISG article 48(1)]. As it was now worded, a seller who committed a breach of contract could not remedy it until the consequences of the delay in performance had been assessed ... it would be simpler to allow the seller to remedy provided he could do so without unreasonable delay" (Official Records, p. 344). The Secretariat Commentary on 1978 Draft article 44 should be read in conjunction with the above comments.


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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