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LEGISLATIVE HISTORY

Legislative history of CISG article 85: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 74

If the buyer is in delay in taking delivery of the goods 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. He may retain them until he has been reimbursed his reasonable expenses by the buyer.

  

CISG article 85

If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay 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. He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer.


Editorial comments

The words "or, where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay the price" have been added to the first sentence of CISG article 85. The explanation is: "Mr. KLINGSPORN (Federal Republic of Germany) said that article 74 [of the 1978 Draft] 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. ... His delegation accordingly proposed.... that [Draft] article 74 should be explicitly broadened to cover cases in which the payment of the price and the delivery of the goods were able to be effected simultaneously and where the buyer was slow in paying. 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. Mr. KRISPIS (Greece) agreed. Mr. SEVÒN (Finland) ...supported the proposal.... It was not certain that article [Draft] 74 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 [Draft] article 74 in the manner suggested...." (Official Records, p. 398).

Subject to the above, the Secretariat Commentary on 1978 Draft article 74 should be relevant to the interpretation of CISG article 85.


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