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 57 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 57 [draft counterpart of CISG article 61].
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 57 of the 1978 Draft
and CISG article 61 are substantively identical.
Text of Secretariat Commentary on article 57 of the 1978 Draft
[draft counterpart of CISG article 61] [Seller's remedies in general; claim for damages; no period of grace]
PRIOR UNIFORM LAW
ULIS, articles 61 to 64, 66 to 68 and 70.
1. Article 57 [draft counterpart of CISG article 61] serves both as an index to the remedies available to the seller if the buyer fails to perform any of his obligations under the contract and [or] this Convention and as the source for the seller's right to claim damages. Article 57 [draft counterpart of CISG article 61] is comparable to article 41 [draft counterpart of CISG article 45] on the remedies available to the buyer.
2. Article 57(1)(a) [draft counterpart of CISG article 61 (1)(a)] provides that in case of the buyer's breach, the seller may "exercise the rights provided in articles 58 to 61 [draft counterpart of CISG articles 62 to 65]." Although the provisions on the remedies available to the seller in articles 58 to 61 [draft counterpart of CISG articles 62 to 65] are drafted in terms comparable to those available to the buyer in articles 42 to 48 [draft counterpart of CISG articles 46 to 52], they are less complicated. This is so because the buyer has only two principal obligations, to pay the price and to take delivery of the goods, whereas the seller's obligations are more complex. Therefore, the seller has no remedies comparable to the following which are available to the buyer: reduction of the price because of non-conformity of the goods (article 46 [draft counterpart of CISG article 50]), right to partially exercise his remedies in the case of partial delivery of the goods (article 47 [draft counterpart of CISG article 51]) [see footnote 1], right to refuse to take delivery in case of delivery before the date fixed or of an excess quantity of goods (article 48 [draft counterpart of CISG article 52]).
3. Article 57(1)(b) [draft counterpart of CISG article 61(1)(b)] provides that the seller may "claim damages as provided in articles 70 to 73 [draft counterpart of CISG articles 74 to 77]: if the buyer fails to perform any of his obligations under the contract of sale and [or] this Convention." In order to claim damages it is not necessary to prove fault or a lack of good faith or the breach of an express promise, as is true in some legal systems. Damages are available for the loss resulting from any objective failure by the buyer to fulfill his obligations. Articles 70 to 73 [draft counterpart of CISG articles 74 to 77], to which article 57(1)(b) [draft counterpart of CISG article 61(1)(b)] refers, do not provide the substantive conditions for the exercise of a claim for damages but the rule for the calculation of the amount of damages.
4. A number of important advantages flow from the adoption of a single consolidated set of remedial provisions for breach of contract by the buyer. First, all the buyer's obligations are brought together in one place without confusions generated by the complexities of repetitive remedial provisions. This makes it easier to understand the rules on what the buyer must do, which are the provisions of prime interest to merchants. Second, problems of classifications are reduced with a single set of remedies. Third, the need for complex cross-referencing is lessened.
[This consolidation, "however, is not exhaustive insofar as Chapter V ... not only describe[s] in greater detail the legal consequences of claims for damages [Art. 74] and of avoidance of contract [Art. 81], but provides also other rights, in particular in the event of anticipatory breach of contract and of breach of instalment contracts [Art. 77]. What is lacking also is the right to interest [Art. 78] even though it is of special relevance to the seller. [The passing of risk under Article 69, too, can be regarded as the legal consequences of certain breaches of the buyer's obligations. ..." Fritz Enderlein & Dietrich Maskow, "International Sales Law', Oceana (1992), p. 234).]
5. Paragraph (2) provides that a party who has resorted to any remedy available to him under the contract or this Convention is not thereby deprived of the right to claim any damages which he may have incurred.
6. Paragraph (3) provides that if a seller
resorts to a remedy for breach of contract, no
court or arbitral tribunal may delay the
exercise of that remedy by granting a period
of grace either before, at the same time as,
or after the seller has resorted to the remedy.
The reasons for this provision are discussed
in paragraphs 3 to 5 of [the commentary to]
article 43 [draft counterpart of CISG article 47].
Such a provision seems desirable in
international trade (OFFICIAL RECORDS, p. 48).
1. However, article 64(1) [draft counterpart of CISG article 73(1)] allows the seller to declare the contract avoided as to one instalment where the buyer's failure to perform in respect of that instalment amounts to a fundamental breach of that instalment.