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LEGISLATIVE HISTORY

Legislative history of CISG article 88: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 77

(1) The party who is bound to preserve the goods in accordance with articles 74 or 75 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the cost of preservation, provided that notice of the intention to sell has been given to the other party.

(2) If the goods are subject to loss or rapid deterioration or their preservation would involve unreasonable expense, the party who is bound to preserve the goods in accordance with articles 74 or 75 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell.

(3) The party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance.

  

CISG article 88

(1) A party who is bound to preserve the goods in accordance with article 85 or 86 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party.

(2) If the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordance with article 85 or 86 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell.

(3) A party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance.


Editorial comments

Substantive changes to the text are: Paragraph (1): paying "the price or" the cost of preservation. "Mr. BOGGIANO (Argentina) said that ... the addition of a reference to paying the price, as well as to the cost of presevation [was made] in order to bring the paragraph into line with amendment to [CISG article 85] which had been adopted ..." (Official Records, p. 413). Paragraph (1): provided that "reasonable" notice has been given. "Mr. ZIEGEL (Canada) said that it was his view that the phrase 'notice of intention to sell' in the existing text necessarily implied reasonable notice to give the other party adequate opportunity to prevent the sale if he so wished. [If one] desire[d] to put the matter beyond doubt ... [this] could be obtained by inserting the word 'reasonable' before the phrase 'notice of the intention to sell'...." (Official Records, p. 401). Paragraph (2): subject to "rapid deterioration" rather than "loss or rapid deterioration". "Mr. KHOO (Singapore) ... said [this deletion] was intended to make it clear that what was at issue was the physical state of the goods and not any economic fluctuations to which they might be subject, an interpretation which, he thought, would place an undue burden on the party preserving the goods by exposing him to the risk of making a wrong commercial judgement" (Official Records, p. 227). Subject to the above, the Secretariat Commentary on 1978 Draft article 77 can be relevant to the interpretation of CISG article 88.


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