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LEGISLATIVE HISTORY

Legislative history of CISG article 71: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 62

(1) A party may suspend the performance of his obligations if it is reasonable to do so because, after the conclusion of the contract, a serious deterioration in the ability to perform or in the creditworthiness of the other party or his conduct in preparing to perform or in actually performing the contract gives good grounds to conclude that the other party will not perform a substantial part of his obligations.

 

(2) If the seller has already dispatched the goods before the grounds described in paragraph (1) of this article become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. This paragraph relates only to the rights in the goods as between the buyer and the seller.

 

(3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice to the other party thereof and must continue with performance if the other party provides adequate assurance of his performance.

  

CISG article 71

(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of:

(a) a serious deficiency in his ability to perform or in his credit-worthiness; or

(b) his conduct in preparing to perform or in performing the contract.

(2) If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entities him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller.

(3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance.


Editorial comments

Paragraph (2) and (3) of CISG article 71 and 1978 Draft article 62 are substantively the same. However, paragraph (1) was significantly modified. CISG article 71(1) only permits suspension "if it becames apparent that the other party will not perform a substantial part of this obligations...", whereas 1978 Draft article 62(1) had permitted suspension "if it is reasonable to do so where there are good grounds to conclude that the other party will not perform a substantial part of his obligations..." The 1978 Draft was said to permit suspension based on a "subjective assessment of the situation" (Mr. SHAFIK, (Egypt), (Official Records, p.419). The modification is said to have been made so that under CISG article 71 "subjective fear by one party will not justify suspension; there must be objective grounds showing substantial probability of non-performance" (Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 2d ed., Kluwer 1991, p. 488). Because of this modification, the Secretariat Commentary on 1978 Draft article 62(1) does not fit CISG article 71(1).


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