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GUIDE TO CISG ARTICLE 59

Secretariat Commentary (closest counterpart to an Official Commentary)


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 55 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 55 [draft counterpart of CISG article 59].

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 55 of the 1978 Draft and CISG article 59 are substantially identical.


Text of Secretariat Commentary on article 55 of the 1978 Draft
[draft counterpart of CISG article 59]   [Payment due without request]

PRIOR UNIFORM LAW

ULIS, article 60.

COMMENTARY

Article 55 [draft counterpart of CISG article 59] is intended to deny the applicability of the rule in some legal systems which states that in order for the payment to become due the seller must make a formal demand for it from the buyer. Under article 55 [draft counterpart of CISG article 59] the buyer must pay the price on the date fixed by or determinable from the contract and this Convention [see footnote 1] whether or not the seller has requested payment (OFFICIAL RECORDS, p. 47).

[Honnold elaborates: "Article 59 may be applied without difficulty when the seller has delivered the goods on credit; in this case the price will be due on affixed date and should be remitted by the buyer on that date 'without the need for any request or the compliance with any formality on the part of the seller'... In documentary exchanges, the statement in Article 59 that the buyer must pay without 'any request' calls for interpreting Article 58. ... Article 58(I) states that the buyer must pay the price when the seller places the goods 'at the buyer's disposal.' Before the seller can place the goods at the buyer's 'disposal' he must complete a series of operations that may include procurement or production of the goods, packaging (Art. 35(2)(d) and arrangements for carriage (Art. 32) and documentation (Art. 58). The contract normally allows the seller to complete these operations within a specified period or prior to a specified date. Only the seller knows when all these steps have been completed; this requires the seller to take the lead. Consequently, the seller does not place the goods 'at the buyer's disposal' (Art. 58(1) until he informs the buyer that the goods are ready. At this point, the buyer will know that it has the next move, and that its duty to pay the price has matured. At this point Article 59 makes it clear that the buyer must pay without any 'request or ... formality'). John O. Honnold, "Uniform Law for International Sales under the 1980 United Nations Convention, 2d ed., Kluwer Law International (1991), pp. 426-427).]


FOOTNOTE

[Footnote 1 to this commentary gives as an example of a date so fixed or determinable "a date for payment ... established by usage (article 8 [draft counterpart of CISG article 9]) or through the operation of the rule in article 54(1) [draft counterpart of CISG article 58(1)].]

[Article 59 appears to be in response to a need in some countries for such procedures as the mise en demeure. Under the U.S. Uniform Commercial Code, as under the Convention, a payment due is due. UCC 2-703 simply states "Where the buyer ... fails to make a payment due on or before delivery ... the aggrieved seller may [pursue his remedies, including cancellation]."]

[Ziegel states: "[T]he buyer's obligation to pay arises without the need for any request ... is the normal rule of the common law; Benjamin [Benjamin's Sale of Goods, Guest ed., para. 715] ... However, neither Art. 59 nor the common law rule must be pressed too hard and in practice it will frequently be necessary for the seller to give the buyer notice of some prescribed event (e.g., that the goods have been shipped or are ready to be collected) in order to trigger the buyer's payment obligation." Jacob Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods" (July 1981), p. 122.]


Pace Law School Institute of International Commercial Law - Last updated August 30, 2006
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