LEGISLATIVE HISTORY

CISG ANTECEDENTS

Match-up of CISG article 82 with ULIS/ULF provisions

     CISG Article 82                           ULIS Article 79 
                                            
1. The buyer loses the right to      1. The buyer shall lose his 
declare the contract avoided         right to declare the contract 
or to require the seller to          avoided where it is impossible 
deliver substitute goods if it is    for him to return the goods in 
impossible for him to make           the condition in which he 
restitution of the goods             received them. 
substantially in the condition 
in which he received them.           2. Nevertheless, the buyer may 
                                     declare the contract avoided: 
2. The preceding paragraph  
does not apply:                        (a) if the goods or part of 
                                           the goods have perished 
 (a) if the impossibility of               or deteriorated as a result 
     making restitution of the             of the defect which 
     goods substantially in the            justifies the avoidance; 
     condition in which the     
     buyer received them is            (b) if the goods or part of the 
     not due to his act or                 goods have perished or 
     omission;                             deteriorated as a result of 
                                           the examination prescribed 
 (b) if the goods or part of the           in Article 38; 
     goods have perished or    
     deteriorated as a result          (c) if part of the goods have 
     of the examination                    been consumed or transformed 
     provided for in article 38;           by the buyer in the course of
     or                                    normal use before the lack 
                                           of conformity with the 
 (c) if the goods or part of the           contract was discovered; 
     goods have been sold in the 
     normal course of business         (d) if the impossibility of 
     or have been consumed or              returning the goods or of 
     transformed by the buyer in           returning them in the 
     the course of normal use              condition in which they were 
     before he discovered or               received is not due to the act
     ought to have discovered              of the buyer or of some 
     the lack of conformity.               other person for whose 
                                           conduct he is responsible; 
 
                                       (e) if the deterioration or 
                                           transformation of the goods 
                                           is unimportant. 

Comments on the match-up

Modifications to ULIS Article 79 include:

- Insertion of the phrase "or to require the seller to deliver substitute goods" after the CISG 82(1) word "avoided" (to underline the fact that the buyer has an option to require delivery of substitute goods (Article 46(2): If the buyer exercises that option, he must return the first delivery of goods, but restitution is not made in any other respect);

- Insertion of the phrase "have been sold in the normal course of business" before the CISG 82(2)(c) phrase have been consumed or transformed (thereby permitting avoidance of the contract also where the goods had been resold, and considerably widening the scope of the exceptions);

- Insertion of the CISG 82(c) phrase "or ought to have been discovered after the word "discovered" (to achieve the desired degree of objectivity regarding the discovery of a lack of conformity);

- Fusing of ULIS 79(2)(d) into CISG 82(2)(a) (as both dealt with the same type of case);

- Elimination of the ULIS 79(2)(e) "de minimis" clause (regarded as unclear from whose point of view -- buyer’s or seller’s -- the unimportance was to be measured);

- Amendment of the main rule by adding in CISG 82(1) and (2) a requirement that it be impossible for the buyer to make restitution of the goods "substantially in the same condition in which he received them (view expressed that goods ceased to be "substantially" in the same condition at the point when their condition had changed to such an extent that, even though the seller had committed a fundamental breach of contract, it was unreasonable to require him to take them back).

Leser in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 643-644 [citations omitted].

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