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GUIDE TO CISG ARTICLE 85

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 74 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 74 [draft counterpart of CISG article 85].

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. There were modifications to article 74 of the 1978 Draft which should be considered before citing the Secretariat Commentary on this article.


Text of Secretariat Commentary on article 74 of the 1978 Draft
[draft counterpart of CISG article 85]   [Seller's obligation to perserve goods]

PRIOR UNIFORM LAW

ULIS, article 91.

COMMENTARY

If the buyer is in delay in taking delivery of the goods and the seller is in physical possession of the goods or is in a position to control the disposition of the goods which are in the possession of a third person, it is appropriate that the seller be required to take reasonable steps to preserve the goods for the benefit of the buyer. It is also appropriate that the seller "may retain them [is entitled to retain them] until he has been reimbursed his reasonable expenses by the buyer," as is provided in article 74 [draft counterpart of CISG article 85].

Example 74A: The contract provided that Buyer was to take delivery of the goods [see footnote 1] at the Seller's warehouse during the month of October. Seller made delivery on 1 October by placing the goods at Buyer's disposal [see footnote 2]. On 1 November, the day when Buyer was in breach of his obligation to take delivery and the day on which the risk of loss passed to Buyer [see footnote 3], Seller shifted the goods to a portion of the warehouse which was less appropriate for the storage of such goods. On 15 November Buyer took delivery of the goods at which time the goods were damaged because of the inadequacies of the portion of the warehouse to which they had been shifted. In spite of the fact that the risk of loss had passed to Buyer on 1 November, Seller is liable for the damage to the goods which occurred between 1 November and 15 November by reason of the breach of his obligation to preserve them.

Example 74B: The contract called for delivery of CIF terms. Buyer wrongfully dishonoured the bill of exchange when it was presented to him. As a result, the bill of lading and other documents relating to the goods were not handed over [to] the Buyer. Article 74 [draft counterpart of CISG article 85] provides that in this case Seller, who is in a position to control the disposition of the goods through his possession of the bill of lading, is obligated to preserve the goods when they are discharged at the port of destination [see footnote 4] (OFFICIAL RECORDS, p. 62).


FOOTNOTES

1. The buyer's obligation to take delivery is set forth in article 56 [draft counterpart of CISG article 60].

2. See article 29(b) and 29(e) [draft counterpart of CISG article 31(b) and 31(c)].

3. Article 81(1) [draft counterpart of CISG article 69(1)].

4. Compare example 75C [which may be found in the Secretariat Commentary on Article 75 [draft counterpart of CISG article 86].


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