Matchup of CISG Article 82 with ULIS/ULF Go to Database Directory || Go to CISG Table of Contents

LEGISLATIVE HISTORY

CISG ANTECEDENTS

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


CISG Article 82

1. The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them.

2. The preceding paragraph does not apply:

(a) if the impossibility of making restitution of the goods substantially in the condition in which the buyer received them is not due to his act or omission;

(b) if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in article 38; or

(c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or ought to have discovered the lack of conformity.

  

ULIS Article 79

1. The buyer shall lose his right to declare the contract avoided where it is impossible for him to return the goods in the condition in which he received them.

2. Nevertheless, the buyer may declare the contract avoided:

(a) if the goods or part of the goods have perished or deteriorated as a result of the defect which justifies the avoidance;

(b) if the goods or part of the goods have perished or deteriorated as a result of the examination prescribed in Article 38;

(c) if part of the goods have been consumed or transformed by the buyer in the course of normal use before the lack of conformity with the contract was discovered;

(d) if the impossibility of returning the goods or of returning them in the condition in which they were received is not due to the act of the buyer or of some 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 -- buyerís or sellerís -- 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].


Pace Law School Institute of International Commercial Law - Last updated July 30, 1999
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