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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]

(. . .)

64
Article 60 [became CISG article 64 ]

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 60 [became CISG article 64 ]

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

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

"(b) if the buyer has not, within the additional period of time fixed by the seller in accordance with paragraph (1) of article 59 [became CISG article 63 ], performed his obligation to pay the price or taken delivery of the goods, or if he has declared that he will not do so within the period so fixed.

"(2) However, in cases where the buyer has paid the price, the seller loses his right to declare the contract avoided if he has not done so:

"(a) in respect of late performance by the buyer, before the seller has become aware that performance has been rendered; or

"(b) in respect of any breach other than late performance, within a reasonable time after he knew or ought to have known of such breach, or within a reasonable time after the expiration of any additional period of time fixed by the seller in accordance with paragraph (1) of article 59 [became CISG article 63 ], or the declaration by the buyer 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 60 [became CISG article 64 ] by Norway (A/CONF.97/C.1/L.185) and Turkey (A/CONF.97/C.1/209).

3. These amendments were to the following effect:

Paragraph (2).

(i) Norway (A/CONF.97/C.1/L.185):

Revise paragraph (2) of article 60 [became CISG article 64 ] to read as follows:

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

"(a) in respect of late performance by the buyer, before the seller has become aware that payment hasbeen made; or

"(b) in respect of any breach other than late performance, within a reasonable time after the seller knew or ought to have known of such breach, or after the expiration of any additional period of time applicable under article 59 [became CISG article 63 ]."

[Withdrawn see Consideration, 7, below.]

(ii) Turkey (A/CONF.97/C.1/L.209):

In line with paragraph (2) of article 45 [became CISG article 49 ], amend paragraph (2) of article 60 [became CISG article 64 ] to read as follows:

"However, the seller loses his right to declare the contract avoided if he has not done so within a reasonable time:

"(a) in respect of late payment by the buyer, after he has become or should have become aware that payment has been made; or

"(b) us respect of any breach other than late payment, after he knew or ought to have known of such breach, or after expiration of the additional period of time fixed by the seller in accordance with paragraph (1) of article 59 [became CISG article 63 ] or the declaration by the buyer that he will not perform his obligations within such an additional period."

[Withdrawn: see Consideration, 7, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 60 [became CISG article 64 ] at its [25th meeting and 26th meeting] on 27 March 1980, and its 33rd meeting on 2 April 1980 [see also 37th meeting of First Committee].

(ii) Consideration

Paragraph (1).

5. At the 25th meeting, the UNCITRAL text was adopted.

Paragraph (2).

6. At the 25th and 26th meetings, an ad hoc working group composed of Federal Republic of Germany, Ghana, Greece, Norway, Turkey and the United Kingdom was established to consider paragraph (2) and the amendments thereto.

7. At the 33rd meeting, the amendments by Norway (A/CONF.97/C.1/L.185) and Turkey (A/CONF.97/C.1/L.209) were withdrawn. The ad hoc working group submitted a joint proposal (A/CONF.97/C.1/L.221) as follows:

Revise paragraph (2) of article 60 [became CISG article 64 ] to read as follows:

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

"(a) in respect of late payment by the buyer, before the seller has become aware that payment has been made;

"(b) in respect of late performance by the buyer, other than late payment, before the seller has become aware that such performance has been rendered; or

"(c) in respect of any breach other than late performance, within a reasonable time after the seller knew or ought to have known of such breach, or after the expiration of any additional period of time applicable under Article 59 [became CISG article 63 ]."

Paragraph (2) (a) and (b) of the joint proposal (A/CONF.97/C.1/L.221) was rejected by 19 votes in favour and 20 against. Paragraph (2)(c) of the joint proposal (A/CONF.97/C.l/L.221) was withdrawn on the understanding that paragraph (2)(b) of article 60 [became CISG article 64 ] should correspond in its wording with article 45 [became CISG article 49 ], paragraph (2)(b). The UNCITRAL text was adopted.

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 64, 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 11, 2000
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