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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]

(. . .)

79, 80
Article 65 [became CISG article 79 ]
Article 65 bis [became CISG article 80 ]]

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 65 [became CISG article 79 ]

"(1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.

"(2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the person whom he has engaged would be so exempt if the provisions of that paragraph were applied to him.

"(3) The exemption provided by this article has effect only for the period during which the impediment exists.

"(4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.

"(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention."

[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 65 [became CISG article 79 ] by Norway (A/CONF.97/C.1/L.191/Rev.1), Denmark (A/CONF.97/C.1/L.186), Finland (A/CONF.97/C.1/L.190), German Democratic Republic (A/CONF.97/C.l/L.217 and 234), Pakistan (A/CONF.97/C.1/L.223), Turkey (A/CONF.97/C.1/L.210) and Federal Republic of Germany (A/CONF.97/C.1/L.208).

3. These amendments were to the following effect:

Paragraph (1).

Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word paragraph (1) as follows:

"(1) A party is not liable for a failure to perform his obligations if he proves that the failure was due to an impediment beyond his control and of a kind which he could not reasonably be expected to have taken into account at the time of the conclusion of the contract and that he could not reasonably be expected to have avoided or overcome the impediment or its consequences."

[As to first change referred to Drafting Committee, as to second change rejected: see Consideration, 5, below.]

Paragraph (2).

(i) Denmark (A/CONF.97/C.1/L.186):

Reword paragraph (2) as follows:

"(2) If the party's failure is due to the failure by his supplier or a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the supplier or the third person would be so exempt if the provision of that paragraph were applied to him."

[Withdrawn: see Consideration, 6, below.]

(ii) Finland (A/CONF.97/C.1/L.190):

Re-word paragraph (2) as follows:

"(2) If the party's failure is due to the failure by his supplier or a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the supplier or the third person would be so exempt if the provisions of that paragraph were applied to him."

[Withdrawn: see Consideration, 6, below]

(iii) German Democratic Republic (A/CONF.97/C.1/L.217):

Insert, in the above amendments by Denmark and Finland, in both cases after the word "supplier" the word "carrier".

[Withdrawn: see Consideration, 6, below.]

(iv) Turkey (A/C0NF.97/C.1/L.210):

Delete paragraph (2).

[Rejected: see Consideration, 6, below.]

(v) Pakistan (A/CONF.97/C.1/L.223):

At the end of paragraph (2), add the words "provided the contract expressly or impliedly envisaged subcontracting by the party".

[Rejected: see Consideration, 6, below.]

Paragraph (3).

(i) Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word paragraph (3) as follows:

"(3) Where the impediment is temporary, the exemption provided by this article has effect for the period during which the impediment exists. Nevertheless, the party who fails to perform is permanently exempted to the extent that, after the impediment is removed, the circumstances are so radically changed that it would be manifestly unreasonable to hold him liable."

Alternatively, the word "only" should be deleted.

[First alternative rejected and second alternative adopted: see Consideration, 9, below.]

(ii) German Democratic Republic (A/CONF.97/C.1/L.217):

Re-word paragraph (3) as follows:

"(3) The exemption provided by this article has effect only for the period during which the impediment and its consequences exist."

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

Paragraph (4).

(i) Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word the second sentence of paragraph (4) as follows:

"If he fails to do so within a reasonable time after he knew or ought to have known of the impediment, he is liable for the damage resulting from this failure."

[Rejected: see Consideration, 10, below.]

(ii) Finland (A/CONF.97/C.1/L.190):

Re-word the second sentence of paragraph (4) as follows:

"If he fails to do so within a reasonable time after he knew or ought to have known of the impediment, he is liable for damage resulting from this failure.

[Rejected: see Consideration, 10, below.]

Paragraph (5).

(i) Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word paragraph (5) as follows:

"(5) Nothing in this article prevents a party from avoiding the contract or reducing the price in accordance with the provisions of this Convention."

[Rejected: see Consideration, 11, below.]

(ii) Federal Republic of Germany (A/CONF.97/C.1/L.208):

Re-word paragraph (5) as follows and place present paragraph (3) at the end of article 65 [became CISG article 79 ]:

"(5) Nothing in this article prevents either party from exercising any right other than to claim damages or to require performance under this Convention."

[Rejected: see Consideration, 11, below.]

(iii) German Democratic Republic (A/CONF.97/C.1/L.217):

Re-word paragraph (5) as follows:

"(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention or to claim any penalties or liquidated damages provided for in the contract".

[Rejected: see Consideration, 11, below.]

[ ARTICLE 65 bis ] [became CISG article 80 ]

New article 65 bis [became CISG article 80 ].

(i) German Democratic Republic (A/CONF.97/C.1/L.217):

Add a new article 65 bis [became CISG article 80 ] as follows:

"Neither party may exercise any right under this Convention if he has caused by his own act or omission the failure to perform of the other party."

[Withdrawn and replaced by another amendment: see Consideration, 13, below.]

(ii) German Democratic Republic (A/CONF.97/C.1/L.234):

Add a new article 65 bis or 23 bis [became CISG article 80 ] as follows:

"A party may not rely on a failure of the other party to perform insofar as the first party by his own act or omission caused the failure to perform."

[Adopted with additional amendment: see Consideration, 13, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 65 [became CISG article 79 ] at its [27th meeting, 28th meeting, 30th meeting, 32nd meeting and 33rd meeting] on 28, 31 March, 1 and 2 April 1980. [The First Committee considered article 65 bis [became CISG article 80 ] at its 28th meeting and 30th meeting]. [See also 37th meeting of First Committee for both articles].

(ii) Consideration

Paragraph (1).

5. At the 27th meeting, the amendment by Norway (A/CONF.97/C.1/L.191/Rev.1) was, as to its first part, referred to the Drafting Committee and, as to its second part, rejected. The UNCITRAL text was adopted.

Paragraph (2).

6. At the 27th meeting, the amendments by Denmark (A/CONF.97/C.1/L.186), Finland (A/CONF.97/C.1/L.190) and German Democratic Republic (A/CONF.97/C.1/L.217) were withdrawn. The amendment by Pakistan (A/CONF.97/C.1/L.223) was rejected. The amendment by Turkey (A/CONF.97/C.1/L.210) was also rejected on the understanding that the Committee would be free to reconsider the issue of the deletion of paragraph (2) in the light of the proposal expected from the ad hoc working group to be established. The Committee established an ad hoc working group, composed of the representatives of German Democratic Republic, Ghana, Norway, Sweden, Switzerland and Turkey to redraft paragraph (2) so as to avoid ambiguities in the interpretation of that paragraph and its relationship to paragraph (1).

7. At the 32nd meeting, the ad hoc working group submitted the following proposal (A/CONF.97/C.1/L.243 as correctly orally):

Variant I:

Revise paragraph (2) of article 65 [became CISG article 79 ] as follows:

"(2) However, the failure of a third person whom a party has engaged for the performance of the whole or a part of the contract does not exempt that party from liability, unless the said third person also would be so exempt if the provisions of paragraph (1) were applied to him."

Variant II:

Delete paragraph (2) of article 65 [became CISG article 79 ].

8. At the 33rd meeting, variant I of the proposal by the ad hoc working group was rejected by 16 votes in favour and 21 against. Variant II of that proposal was also rejected, by 22 votes in favour and 23 against. The UNCITRAL text of paragraph (2) was adopted.

Paragraph (3).

9. At the 27th meeting, the amendment by Norway (A/CONF.97/C.1/L.191/Rev.1) was rejected in its first alternative by 12 votes in favour and 25 against, and it was adopted in its second alternative, i.e. to delete the word "only", by 19 votes in favour and 12 against. At the 28th meeting, the amendment by the German Democratic Republic (A/CONF.97/C.1/L.217) was referred to the Drafting Committee. The UNCITRAL text was adopted subject to these amendments.

Paragraph (4).

10. At the 28th meeting, the amendments by Norway (A/CONF.97/C.1/L.191/Rev.1) and Finland (A/CONF.97/C.1/L.190) were rejected by 14 votes in favour and 17 against, and the UNCITRAL text was adopted.

Paragraph (5).

II. At the 28th meeting, the amendment by Norway (A/CONF.97/C.1/L.191/Rev.1) was rejected by 13 votes in favour and 22 against. The amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.208) was rejected by 15 votes in favour and 19 against. The amendment by the German Democratic Republic (A/C0NF.97/C.1/L.217) was also rejected. The UNCITRAL text was adopted.

New article 65 bis [became CISG article 80 ]

12. At its 28th meeting, the Committee decided to defer consideration of the proposal by the German Democratic Republic (A/CONF.97/C.1/L.217) in order to enable that delegation to redraft its proposal in the light of the discussion in the Committee.

13. At the 30th meeting, the amendment by the German Democratic Republic (A/CONF.97/C.1/L.217) was withdrawn and replaced by another amendment (A/CONF.97/C.1/L.234) to the effect that a new article 65 bis or 23 bis [became CISG article 80 ] be added as follows: "A party may not rely on a failure of the other party to perform insofar as the first party by his own act or omission caused the failure to perform". This amendment was amended orally by the Federal Republic of Germany to the effect that the words "insofar as" be replaced by the words "to the extent that". Thus amended, the amendment was adopted by 34 votes in favour and none against and referred to the Drafting Committee in order to decide whether the article should be a new article 65 bis or 23 bis [became CISG article 80 ].

[D. Subsequent Proceedings]

[For subsequent Conference material on the development/approval of the final text of CISG article 79 and of CISG article 80, go to Plenary Conference 11th 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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