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 58 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 58 [draft counterpart of CISG article 62].
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 for 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 58 of the 1978
Draft and CISG article 62 are substantively
Text of Secretariat Commentary on article 58 of the 1978 Draft
[draft counterpart of CISG article 62] [Seller's right to require performance]
PRIOR UNIFORM LAW
ULIS, articles 61 and 62(1).
1. Article 58 [draft counterpart of CISG article 62] describes the seller's right to require the buyer to perform his obligations under the contract and this Convention.
Failure to Pay the Price
2. This article recognizes that the seller's primary concern is that the buyer pay the price at the time it is due. Therefore, if the price is due under the terms of articles 54 and 55 [draft counterpart of CISG articles 58 and 59] and the buyer does not pay it, this article authorizes the seller to require the buyer to pay it.
3. Article 58 [draft counterpart of CISG article 62] differs from the law of some countries in which the seller's remedies in respect of the price are restricted. In those countries, even though the buyer may have a substantive obligation to pay under the contract, the general principle is that the seller must make a reasonable effort to resell the goods to a third party and recover as damages any difference between the contract price and the price he received in the substitute transaction. The seller may recover the price if resale to a third person is not reasonably possible.
4. However, under article 58 [draft counterpart of CISG article 62], when the buyer has a substantive obligation to pay the price under articles 54 and 55 [draft counterpart of CISG articles 58 and 59], the seller has available a remedy to require him to pay it [see footnote 1].
[Knapp states "Thus, the seller, whether or not he has declared the contract avoided, is under no obligation to try to resell the goods before resorting to remedies for failure to perform the contract by the buyer. Moreover, he is not authorized to resell the goods before declaring the contract avoided. However, once the contract is declared avoided, the seller may resell the goods and the price so obtained will be taken into account in his claim for damages (See Article 75)." V. Knapp, Bianca-Bonell Commentary, Giuffrè: Milan (1987) p. 452.]
5. The style in which article 58 [draft counterpart of CISG article 62] in particular and Section III on the buyer's remedies in general is drafted should be noted at this point. That style conforms to the view held in many legal systems that a legislative text on the law of sales governs the rights and obligations between the parties and does not consist of directives addressed to a tribunal. In other legal systems the remedies available to one party on the other party's failure to perform are stated in terms of the injured party's right to the judgement of a court granting the required relief [see footnote 2]. However, the two different styles of legislative drafting are intended to achieve the same result. Therefore, when article 58 [draft counterpart of CISG article 62] provides that the "seller may require the buyer to pay the price, take delivery or perform his other obligations", it anticipates that, if the buyer does not perform, a court will order such performance and will enforce that order by the means available to it under its procedural law.
6. Although the seller has a right to the assistance of a court or arbitral tribunal to enforce the buyer's obligations to pay the price, take delivery and perform any of his other obligations, article 26 [draft counterpart of CISG article 28] limits that right to a certain degree. If the court could not [would not] give a judgement for specific performance under its own law in respect of similar contracts of sale not governed by this Convention, it is not required to enter such a judgement in a case arising under this Convention even though the seller had a right to require the buyer's performance under article 58 [draft counterpart of CISG article 62]. However, if the court could [would] give such a judgement under its own law, it would be required to do so if the criteria of article 58 [draft counterpart of CISG article 62] are met.
7. The seller can require performance under this article and also sue for damages. Where the buyer's non-performance of one of his obligations consists in the delay in the payment of the price, the seller's damages would normally include interest. [See Article 78, a provision that was added to the Official Text after the Secretariat Commentary was written. Article 78 states "If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74."]
Failure to Perform Other Obligations
8. Article 58 [draft counterpart of CISG article 62] goes on to authorize the seller to require the buyer to "take delivery or perform his other obligations" [see footnote 3].
9. In some cases the seller may be authorized or required to substitute his own performance for that which the buyer has failed to do. Article 61 [draft counterpart of CISG article 65] provides that in a sale by specification, if the buyer fails to make the specifications required on the date requested or within a reasonable time after receipt of a request from the seller, the seller may make the specifications himself. Similarly, if the buyer is required by the contract to name a vessel on which the goods are to be shipped and fails to do so by the appropriate time article 73 [draft counterpart of CISG article 77], which requires the party who relies on a breach of contract to mitigate losses, may authorize the seller to name the vessel so as to minimize the buyer's losses.
Inconsistent Acts by the Seller
10. Article 58 [draft counterpart of CISG article 62] also
provides that in order for the seller to exercise the right
to require performance of the contract he must not have
acted inconsistently with that right, e.g. by avoiding
the contract under article 60 [draft counterpart of
CISG article 64] (OFFICIAL RECORDS, pp. 49-49).
1. As to the relationship of the principle of mitigation to the right to require payment of the price, see para. 3 of the commentary to article 73 [draft counterpart of CISG article 77].
2. See the examples in footnote 1 to para. 8 of the commentary to article 42 [draft counterpart of CISG article 46].
3. The obligation to "take delivery" is specifically mentioned because it is the second of the two obligations of the buyer set forth in article 49 [draft counterpart of CISG article 53]. The definition of taking delivery is found inarticle 56 [draft counterpart of CISG article 60].