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Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods

Professor Jacob S. Ziegel, University of Toronto
July 1981

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Article 28

If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention.


1. Art. 28 is based on a similar provision in ULIS 16. The common law and equitable rules for the granting of an order for specific performance (or, its equivalent, judgment for the price in an action by this seller) are contained in ss. 47 and 50 of the OSGA and are much narrower than those recognized, for example, under German or French law [see Dawson, "Specific Performance in France and Germany" (1959) 57 Mich. L. Rev. 495]. The CISG draftsmen, like their predecessors, felt that national courts could not be expected to alter "fundamental principles of their judicial procedure" to accommodate CISG. [[Secretariat] Commentary, p. 77]. This seems reasonable enough. For further discussion of Art. 28, see Comment to art. 46.

2. A small but significant change to art. 28 was made at Vienna. The draft version provided that a court was not bound to make an order for specific performance unless the court "could" do so under its own law. The American delegation felt "could" was too loose since a common law court always possesses the power to make an order for specific performance: what was important, in their view, was whether the order would be made in fact. To accommodate the American concern, "could" was changed to "would".

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Pace Law School Institute of International Commercial Law - Last updated April 23, 1999

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