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Cite as Knapp, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 451-455. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 62

Victor Knapp

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 62

The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.

1. History of the provision

     1.1. - The antecedent of this article is to be found in Articles 61 and 62(1) of ULIS. However, as previously noted (see commentary on Article 61, supra 1.1. et seq.), the Convention adopts a different concept of the remedies for the buyer's breach of contract. Hence Articles 61 and 62(1) of ULIS only partly corresponded to the present Article 62. That is to say that, while Article 62 deals -- owing to the general concept adopted by the Convention -- with all kinds of breach of contract by the buyer, Articles 61 and 62(1) of ULIS dealt only with the buyer's failure to pay the price.

     1.2. - Articles 61 and 62(1) of ULIS read as follows:

Article 61:

If the buyer fails to pay the price in accordance with the contract and with the present law, the seller may require the buyer to perform his obligation.

Article 62(1):

Where the failure to pay the price at the date fixed amounts to a fundamental breach of the contract, the seller may either require the buyer to pay the price or declare the contract avoided. He shall inform the buyer of his decision within a reasonable time; otherwise the contract shall be ipso facto avoided. [page 451]

     1.3. - As to the principle underlying the remedies for the buyer's breach, both ULIS and the Convention recognize that the seller's primary concern is the performance of the contract. Thus, both consider pursuance of the initial obligation as the first and foremost remedy. There is however a profound difference between the Convention and ULIS: the Convention does not provide for any ipso facto avoidance, as did Articles 61(2) and 62(1) of ULIS.

     1.4. - Thus the solution adopted by the Convention comes near to that of the civil law countries where the right of the seller to require the buyer to perform his obligations is not considered a special remedy, but rather a continuation of the initial obligation of the buyer. For the same reason Article 62 differs from the law of some countries and from ULIS which restrict the seller's remedies in respect of the price. In those countries and under ULIS, even though the buyer may have a substantive obligation to pay under the contract, the general principle is that the seller must make a reasonable effort to resell the goods to a third party and recover as damages any difference between the contract price and the price received in the substitute transaction. The seller may recover the contract price if resale to a third person is not reasonably possible (see Article 61(2) of ULIS).

     1.5. - The solution adopted by the Convention is quite different. Articles 62 and 76 imply that, if the buyer is in delay, not only the buyer continues to be bound under the contract and the Convention, but the seller also continues to be obliged to deliver to the buyer the goods, if he has not already done so, unless he has declared the contract avoided according to Article 64.

     1.6. - Thus, the seller, whether or not he has declared the contract avoided, is under no obligation to try to resell the goods before resorting to remedies for failure to perform the contract by the buyer. Moreover, he is not authorized to resell the goods before declaring the contract avoided. However, once the contract is declared avoided the seller may resell the goods and the price so obtained will be taken into account in his claim for damages (see Article 75). [page 452]

2. Meaning and purpose of the provision

     2.1. - Article 62, recognizing that the seller's primary concern is to obtain performance, authorizes him to require performance whenever the buyer fails to perfom any of his obligations in due time.

     2.2. - This remedy contrasts with other remedies provided in Article 61 because it does not create any new right to the seller or a new obligation of the buyer. It is simply a pursuance of their initial rights and obligations under the contract. Hence, the intention of Article 62 is to emphasize that the mere non-performance by the buyer of his obligations does not cause an ipso facto avoidance of the contract and that the contractual obligations continue in force even if not performed in due time.

     2.3. - In practice, the seller will initially require performance under Article 62 by initiating a legal action against the buyer. However, the wording of Article 62 does not restrict the form the seller's request may take. Under Article 11, the request can be oral or in writing and may be transmitted by any means.

3. Problems concerning the provision

     3.1. - The comparison of Articles 62 and 63 justifies the interpretation that the requirement to perform the obligation under Article 62 should be a requirement sine die, e.g., without any term, a requirement that the buyer perform promptly or without delay. An action for performance will be considered as requiring immediate performance under Article 62. A request inviting the buyer to perform within a certain time would be considered as fixing an additional period of time under Article 63.

     3.2. - Failure by the buyer to perform his obligation after the seller's request under Article 62 will not be the basis of any right of the seller to declare the contract avoided, unless such a failure amounts to a fundamental breach.

     3.3. - The seller is authorized to require performance under Article 62 unless he has resorted to a remedy which is [page 453] inconsistent with this requirement (see commentary on Article 61, supra, 3.2. et seq.). In such a case, a question arises as to whether the seller's right to require the buyer's perfomance of the contract is merely suspended for the duration of the inconsistent remedy, or whether it expires altogether. The reply to this question differs according to the remedies in question.

     3.4. - If the seller has fixed an additional period of time for performance by the buyer of his obligations (Article 63) the seller's right to require the buyer to perform will be inoperative during this period (Article 63(2)). However, it will not expire and will automatically be revived if the buyer fails to perform his obligation during the period of time so fixed or when the seller receives notice from the buyer declaring that he will not perform within that period.

     3.5. - Otherwise, pursuant to Article 7(2), the seller's right to require the buyer's performance of his obligations expires in toto if the seller has resorted to a remedy inconsistent with it. Certainly the seller who has declared the contract avoided under Article 64 loses his right to require the buyer to perform. The reason is that the obligation ceases to exist after avoidance of the contract.

Similarly, when the specification made by the seller under Article 63(2) has become binding he is no longer authorized to resort to the remedy of Article 62 to require the buyer to make the specification himself.

     3.6. - What of the converse question? Does the seller's requiring under Article 62 the buyer to perform his obligation preclude the seller from subsequently resorting to the remedies provided in Article 63 or 64 (Article 65 does not figure here)? In other words, does the requirement under Article 62 cause subjective inconsistency with the remedies under Articles 63 and 64? For reasons generally explained in the commentary on Article 61 (see 3.2. et seq., supra), it should be assumed that there is not such inconsistency.

     3.7. - Therefore, the seller who has required the buyer to perform his obligation under Article 62 should be allowed to [page 454] resort subsequently, even during judicial or arbitration proceedings or after adjudication, to the remedies of Articles 63 or 64. It should be noted that such behaviour might have procedural effects under national law, a topic which cannot be discussed here. [page 455]


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