CISG Article 88 ULIS Article 94
1. A party who is bound to 1. The party who, in the case
preserve the goods in to which Articles 91 and 92
accordance with article 85 apply, is under an obligation
or 86 may sell them, by any to take steps to preserve the
appropriate means if there goods may sell them by any
has been an unreasonable appropriate means, provided
delay by the other party in that there has been unreasonable
taking possession of the delay by the other party in
goods or in taking them accepting them or taking them
back or in paying the price back or in paying the cost of
or the cost of preservation, preservation and provided that
provided that reasonable due notice has been given to
notice of the intention to the other party of the
sell has been given to the intention to sell.
other party.
2. The party selling the goods
2. If the goods are subject to shall have the right to retain
rapid deterioration or their out of the proceeds of sale an
preservation would involve amount equal to the reasonable
unreasonable expense, a party costs of preserving the goods
who is bound to preserve the and of selling them and shall
goods in accordance with transmit the balance to the
article 85 or 86 must take other party.
reasonable measures to sell
them. To the extent possible ULIS Article 95
he must give notice to the
other party of his intention Where, in the cases to which
to sell. Articles 91 and 92 apply, the
goods are subject to loss or
3. A party selling the goods has rapid deterioration or their
the right to retain out of the preservation would involve
proceeds of sale an amount unreasonable expense, the
equal to the reasonable expenses party under the duty to
of preserving the goods and of preserve them is bound to
selling them. He must account sell them in accordance
to the other party for the with Article 94.
balance.
"In contrast to Article 88 CISG, ULIS dealt with the self-help sale and the emergency sale in two separate articles (Article 94 and 95), with the rules concerning the use of the proceeds of sale being added as subparagraph 2 to Article 94 (self-help sale). Article 95 (emergency sale) merely made a general reference to the need for the party preserving the goods ‘to sell them in accordance with Article 94’. That led to difficulties of interpretation, insofar as it was unclear whether the rule in Article 94(2) concerning the use of the proceeds of sale could also be applied in view of the fact that it was only the sale as such which, according to Article 95, was to be conducted ‘in accordance with Article 94’. That question has been clarified by including both types of sale in Article 88 CISG." Eberstein in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 680 [citations omitted].
Pace Law School Institute of
International Commercial Law
- Last updated July 30, 1999