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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]

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50
Article 46 [became CISG article 50 ]

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

A. UNCITRAL text

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

"Article 46 [became CISG article 50 ]

"If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may declare the price to be reduced in the same proportion as the value that the goods actually delivered would have had at the time of the conclusion of the contract bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 44 [became CISG article 48 ] or if he is not allowed by the buyer to remedy that failure in accordance with that article, the buyer's declaration of reduction of the price is of no effect."

[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 46 [became CISG article 50 ] by the Federal Republic of Germany (A/CONF.97/C.1/L.166),Norway (A/CONF.97/C.1/L.167), Argentina, Spain, Portugal (A/C0NF.97/C.1/L.168), the United Kingdom (A/CONF.97/C.1/L.169), Finland (A/CONF.97/C.1/L.170) and the United States of America (A/CONF.97/C.1/L.181/Corr.I).

3. These amendments were to the following effect:

(i) Federal Republic of Germany (A/CONF.97/C.1/L.166):

Revise the second sentence of article 46 [became CISG article 50 ] to read as follows:

"However, if the seller remedies any failure to perform his obligations in accordance with article 35 [became CISG article 37 ] or article 44 [became CISG article 48 ] or if the buyer refuses to accept performance by the seller in accordance with article 35 [became CISG article 37 ] or article 44 [became CISG article 48 ], the buyer's declaration of reduction of the price is of no effect."

[Adopted: see Consideration, 5, below.]

(ii) Norway (A/CONF.97/C.1/L.167):

1. Revise the first sentence of article 46 [became CISG article 50 ] to read as follows:

"If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may declare the price to be reduced in the same proportion as the value of goods conforming with the contract [at the time of delivery] has been diminished because of the non-conformity."

[Adopted: see Consideration, 6, below.]

(iii) Argentina, Spain, Portugal (A/CONF.97/C.1/L.168):

Add at the end of the first sentence the words:

"at the buyer's place of business or habitual residence. "

[Rejected: see Consideration, 7, below.]

(iv) United Kingdom (A/CONF.97/C.1/L.169):

Revise article 46 [became CISG article 50 ] to read as follows:

"If the goods do not conform with the contract and whether or not the price has already been paid, the buyer is entitled to reduce the price in the same proportion as the value that the goods actually delivered would have had at the time of the conclusion of the contract bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 44 [became CISG article 48 ] or if he is not allowed by the buyer to remedy that failure in accordance with that article, the buyer may not reduce the price."

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

(v) Finland (A/CONF.97/C.1/L.170):

Revise the first sentence of article 46 [became CISG article 50 ] to read as follows:

"If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may declare the price to be reduced in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time."

[Adopted: see Consideration, 6, below.]

(vi) United States of America (A/CONF.97/C.1/L.181/Corr.1):

Revise the first sentence of article 46 [became CISG article 50 ] to read as follows:

"If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may declare the price to be reduced to the value that such non-conforming goods would have had at the conclusion of the contract."

[Withdrawn: see Consideration, 10, below.]

New paragraph (2).

Norway (A/CONF.97/C.1/L.167):

Price reduction may be practicable also in cases of third party claims as described in article 39 [became CISG article 41 ]. This should be referred to either in article 39 [became CISG article 41 ] (see proposal regarding a new paragraph (3) to that article, set forth in A/CONF.97/C.1/L.77), or in article 46 [became CISG article 50 ], for instance in new paragraph to read as follows:

"(2) The provisions of the preceding paragraph apply correspondingly where the value of the goods is diminished because they are subject to a right or claim by a third party as described in article 39 [became CISG article 41 ]."

[Withdrawn: see Consideration, 11, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 46 [became CISG article 50 ] at its 23rd meeting on 26th March 1980 [see also 37th meeting of First Committee].

(ii) Consideration

5. At the 23rd meeting, the amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.166) was adopted by 27 votes in favour and no votes against.

6. At the 23rd meeting, the amendments by Norway (A/CONF.97/C.1/L.167) and Finland (A/CONF.97/C.1/L.170) were adopted by 20 votes in favour and 1 against.

7. At the 23rd meeting, the joint amendment by Argentina, Spain, Portugal (A/CONF.97/C.1/L.168) was rejected by 11 votes in favour and 23 against. Argentina submitted orally an alternative amendment by the addition at the end of the first sentence of article 46 [became CISG article 50 ] of the words "at the place of delivery". The oral amendment was rejected by 12 votes in favour and 22 against.

8. The UNCITRAL text was adopted subject to the amendments noted at paragraphs 5 and 6 above.

9. At the 23rd meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.169) was referred to the Drafting Committee.

10. At the 23rd meeting, the amendment submitted by the United States of America (A/CONF.97/C.1/L.181/Corr.1) was withdrawn.

New paragraph (2).

11. At the 23rd meeting, the amendment submitted by Norway (A/CONF.97/C.1/L.167) was withdrawn.

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 50, 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]

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