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Cite as Barrera Graf, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 625-626. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 87

Jorge Barrera Graf

1. History of the provision
2. Meaning and purpose of the provision


A party who is bound to take steps to preserve the goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable.

1. History of the provision

     1.1. - Article 87 embodies a norm which has remained substantially the same since its appearance first in the 1939 Draft (see Article 94) and then again in the 1963 Draft (see Article 105). However ULIS, in Art. 93, added that the storage expenses were not to be unreasonable, a principle which was carried over to the present Article 87.

2. Meaning and purpose of the provision

     2.1. - Article 87 and Article 88 of the Convention grant different rights to the party obligated to take steps to preserve the goods; Article 87 allows him to deposit them in the warehouse of a third person, and Article 88 to sell them by whatever means appropriate. In both situations, the obligation to preserve, which Article 85 imposes on the seller and Article 86 on the buyer, is replaced by deposit with a third party or by sale.

     2.2. - The contracting party who, according to Articles 85 and 86 must adopt means for the preservation of the goods which are within his control (Article 85 and 86(1)), or which have been placed at his disposal (Article 86 (2)), may deposit them in a warehouse of a third person. Therefore a right for warehouse deposit is involved, not an obligation. For a similar principle of authority to sell, see Article 88(1) (HONNOLD, Uniform Law, [page 625] 462). If the goods are not deposited under this article or sold under Article 88, the obligations to preserve the goods and surrender their physical possession continue to be on the seller pursuant to Article 85, and in the buyer's pursuant to Article 86.

The party obliged to preserve the goods may do so without depositing them in a third party's warehouse. For instance, in a given place there may be no warehouse available, or those that do exist may be inadequate (for example, lack of refrigeration, excessive humidity or sunlight), or they may be «unreasonably» expensive; or, finally, the party in possession of the goods may be either unable or unwilling to pay the expenses of storage. In these situations, he must preserve the goods and, in accordance with Articles 85 and 86, adopt measures reasonable in the circumstances.

     2.3. - Expenses of storage can be charged to the other party. This is justified on the basis of the provision's presupposition that the other party had failed to fulfil his obligations and that the depositary who has the duty of due preservation of the goods retains them by way of guarantee. Article 87, however, requires the expenses of storage not be unreasonable.

     2.4. - It is not necessary that the warehouse be public, or that it be a general warehouse for storage. It is sufficient that it is a storehouse where the goods can be properly deposited meaning that it is adequate to prevent the goods from suffering damage due to defects inherent in the place of storage (for a similar view see Secretariat's Commentary, Official Records, I, 62: «The term "warehouse" should be interpreted broadly as any place appropriate for the storage of goods of the type in question»). [page 626]

Pace Law School Institute of International Commercial Law - Last updated February 9, 2005
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