Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 50 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 50 [draft counterpart of CISG article 54].
To the extent it is relevant to the Official Text, the
Secretariat Commentary on the 1978 Draft is perhaps the
most authoritative source one can cite. It is the closest
counterpart to an Official Commentary on the CISG. A
match-up of this article of the 1978 Draft with the
version adopted for the Official Text is necessary to
document the relevancy of the Secretariat Commentary
on this article. See the match-up for this article for
a validation of citations to this Secretariat Commentary.
This match-up indicates that article 50 of the 1978 Draft and CISG article 54 are
Text of Secretariat Commentary on article 50 of the 1978 Draft
[draft counterpart of CISG article 54] [Obligation to pay the price]
PRIOR UNIFORM LAW
ULIS, article 69.
1. Articles 50 to 54 [draft counterpart of CISG articles 54 to 58] provide a number of details involved in the obligation of the buyer to pay the price, an obligation which is set out in article 49 [draft counterpart of CISG article 53]. In the case of article 50 [draft counterpart of CISG article 54], it includes as part of the buyer's obligation to pay the price an obligation to take a number of preliminary actions in order to make possible the payment of the price.
2. Article 50 [draft counterpart of CISG article 54] envisages that, as part of the buyer's obligation to pay the price, he must take the steps and comply with the formalities which may be required by the contract and by any relevant laws and regulations [by any laws and regulations] to enable payment to be made. These steps may include applying for a letter of credit or a bank guarantee of payment, registering the contract with a government office or with a bank, procuring the necessary foreign exchange or applying for official authorization to remit the currency abroad. Unless the contract specifically placed one of these obligations on the seller, it is the buyer who must take the steps.
3. The buyer's obligation under article 50 [draft counterpart of CISG article 54] is limited to taking steps and complying with formalities. Article 50 [draft counterpart of CISG article 54] does not require the buyer to undertake that his efforts will result in the issuance of a letter of credit, the authorization to procure the necessary foreign exchange or even the price will finally be paid. Of course, under article 49 [draft counterpart of CISG article 53] the buyer is obligated to see that the price is paid, an obligation the consequences of which he may be relieved in part by the exemption provision in article 65 [draft counterpart of CISG article 79].
4. Nevertheless, the buyer is obligated to take all the appropriate measures to persuade the relevant Governmental authorities to make the funds available and cannot rely on a refusal by those authorities unless he has taken such measures.
5. The major significance of article 50 [draft counterpart of CISG article 54] lies in the fact that taking such steps and complying with such formalities as may be required to enable payment to be made is considered to be a current obligation, the breach of which gives rise to remedies under article 57 to 60 [draft counterpart of CISG articles 61 to 64], and is not considered to be "conduct in preparing to perform or actually in performing [or in performing] the contract", which may give rise to questions of anticipatory breach under articles 62 to 64 [draft counterpart of CISG articles 71 to 73] [see footnote 1].
1. The quoted words are from article 62(1) [draft counterpart of CISG article 71(1).] (OFFICIAL RECORDS, p. 45).