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CISG
number


LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

G. Report of the First Committee
[Outline of committee proceedings]
Document A/CONF.97/11 [Original: English 7 April 1980]

(. . .)

49
Article 45 [became CISG article 49 ]

A. UNCITRAL text [1978 draft]
B. Amendments
C. Proceedings in the First Committee
D. Subsequent proceedings
E. Overview comments

A. UNCITRAL text

1. The text [of the 1978 draft] of the United Nations Commission on International Trade Law provided as follows:

"Article 45 [became CISG article 49 ]

"(1) The buyer may declare the contract avoided:

"(a) if the failure by the seller to perform any of his obligations under the contract and this Convention amounts to a fundamental breach of contract; or

"(b) if the seller has not delivered the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 43 [became CISG article 47 ] or has declared that he will not deliver within the period so fixed.

"(2) However, in cases where the seller has made delivery, the buyer loses his right to declare the contract avoided unless he has done so within a reasonable time:

"(a) in respect of late delivery, after he has become aware that delivery has been made; or

"(b) in respect of any breach other than late delivery, after he knew or ought to have known of such breach, or after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 43 [became CISG article 47 ], or after the seller has declared that he will not perform his obligations within such an additional period."

[Go to Secretariat Commentary on the above text]

[See also pre-Conference observations and proposals by Governments and International Organizations]

B. Amendments

2. Amendments were submitted to article 45 [became CISG article 49 ] by the Netherlands (A/CONF.97/C.1/L.165), Canada (A/CONF.97/C.1/L.150), Norway (A/CONF.97/C.1/L.151), Norway (A/CONF.97/C.1/L.162), Japan (A/CONF.97/C.1/L.161), Australia (A/CONF.97/C.1/L.152), Singapore (A/CONF.97/C.1/L.149) and the Federal Republic of Germany (A/CONF.97/C.1/L.153/Corr. 1).

3. These amendments were to the following effect:

Paragraph (1).

(i) Netherlands (A/CONF.97/C.1/L.165):

Revise subparagraph (b) of paragraph (1) to read as follows:

"(b) if the seller has not, within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 43 [became CISG article 47 ], performed his obligations, or has declared that he will not do so within the period so fixed."

[Rejected as orally amended: see Consideration, 5, below.]

(ii) Canada (A/CONF.97/C.1/L.150):

Revise article 45 [became CISG article 49 ], paragraph (1) (b) to read as follows:

"(b) if the seller has not delivered the goods or performed any other material obligation within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 43 [became CISG article 49 ] or has declared that he will not deliver within the period so fixed."

[Withdrawn: see Consideration, 5. below.]

(iii) Norway (A/CONF.97/C.1/L.151):

Revise subparagraph (b) of paragraph (1) of article 45 [became CISG article 49 ] to begin as follows:

"(b) in case of non-delivery, if the seller does not deliver".

[Referred to Drafting Committee: see Consideration, 6, below.]

(iv) Norway (A/CONF.97/C.1/L.162):

It should be made clearer that the provision of paragraph (1)(b) does not apply to cases where the buyer has fixed an additional period for repair or new delivery of substitute goods. The following redraft of subparagraph (b) is suggested (a mere drafting amendment):

"(b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with article 43 [became CISG article 47 ] [paragraph 1] or declares that he will not deliver within the period so fixed."

[Referred to Drafting Committee: see Consideration,6, below.]

New paragraph 1 (bis).

(v) Japan (A/CONF.97/C.1/L.161):

Add a new paragraph to article 45 [became CISG article 49 ] as follows:

"(1) (bis) If the buyer has required the seller to remedy the lack of conformity in accordance with paragraphs (2) and (3) of article 42 [became CISG article 46 ], he may not declare the contract avoided unless the seller has declared that he will not comply with the request or a period of time of reasonable length has passed after that request."

 [Withdrawn: see Consideration, 7, below.]

Paragraph (2)

(vi) Australia (A/CONF.97/C.1/L.152):

1. Delete from paragraph (2) the words:

"in cases where the seller has made delivery".

2. Insert in subparagraph (2) (a), after the word "aware", the following words:

"or ought to have become aware".

[Paragraph (1) withdrawn. Paragraph (2) rejected: see Consideration, 8, below.]

(vii) Singapore (A/CONF.97/C.1/L.149):

Revise paragraph (2) of article 45 [became CISG article 49 ] to read as follows:

"(2) However, in cases where the seller has made delivery, the buyer loses his right to declare the contract avoided unless he has done so:

"(a) in respect of late delivery, within a reasonable time after he has become aware that delivery has been made;

"(b) in respect of any breach other than late delivery, within a reasonable time:

"(i) after he knew or ought to have known of such breach; or

"(ii) after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 43 [became CISG article 47 ]; or

"(iii) after the seller has declared that he will not perform his obligations within such an additional period."

[Referred to Drafting Committee: see Consideration, 9, below.]

(viii) Federal Republic of Germany (A/CONF.97/C.1/L.l53/Corr.l):

At the end of sub-paragraph (b) of paragraph (2) of article 45 [became CISG article 49 ], add the following words:

", or after the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 44 [became CISG article 48 ], or after the buyer has declared that he will not accept performance."

[Referred to Drafting Committee: see Consideration, 9, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 45 [became CISG article 49 ] at its [22nd meeting and 23rd meeting] on 25th and 26th March respectively [see also 37th meeting of First Committee].

(ii) Consideration

Paragraph (1).

5. At the 22nd meeting, the amendment by the Netherlands (A/CONF.97/C.1/L.165) was amended orally by Canada by the insertion of the word "important" immediately before the word "obligations". The amendment by Canada (A/CONF.97/C.1/L.150) was withdrawn in favour of the amendment by the Netherlands as modified orally by Canada. The amendment by the Netherlands, as orally amended, was rejected by 9 votes in favour and 31 against.

6. At the 23rd meeting, the two amendments by Norway (A/CONF.97/C.1/L.151 and A/CONF.97/C.1/L.162) were referred to the Drafting Committee, and the UNCITRAL text was adopted.

New paragraph (1) (bis).

7. At the 23rd meeting, the amendment by Japan (A/CONF.97/C.1/L.161), as modified orally, was withdrawn.

Paragraph (2).

8. At the 23rd meeting, part of the amendment by Australia (A/CONF.97/C.1/L.152) which dealt with the deletion from paragraph (2) of the words "in cases where the seller has made delivery" was withdrawn. The other part of the amendment "to insert in subparagraph (2)(a), after the word "aware", the following words: "or ought to have become aware" was rejected.

9. The amendments by Singapore (A/CONF.97/C.1/L.149) and the Federal Republic of Germany (A/CONF.97/C.1/L.153/Corr.1) were referred to the Drafting Committee, and the UNCITRAL text was adopted.

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 49, go to Plenary Conference 8th meeting]

[E. Overview Comments]

[English translation of report on the significance of the deliberations on this article at the Diplomatic Conference: prepared by Peter Schlechtriem, based on notes taken at the conference and published shortly thereafter]

(. . .)

Pace Law School Institute of International Commercial Law - Last updated September 8, 2000
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