[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]
excerpt from
Joseph Lookofsky
323. A seller or buyer who is bound to take steps to preserve the goods (in accordance
with the rules set forth above)[1] 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.[2] [page 171]
Where one party is bound to preserve the goods on the other's behalf,[3] and there has
been an unreasonable delay by the other party in taking possession of the goods or in taking
them back or in paying the price or the cost of preservation, then the party in possession may
sell them by any appropriate means provided that reasonable notice of the intention to sell has
been given to the other party.[4] If, however, the goods are subject to rapid deterioration or
their preservation would involve unreasonable expense, a party who is bound to preserve the
goods in accordance with Articles 85 or 86 must take reasonable measures to sell them. To
the extent possible he must give notice to the other party of his intention to sell.[5] A party selling the goods, either by right or by reason of duty, has the right to retain out
of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods
and of selling them. He must account to the other party for the balance.[6]
2. Article 87.
3. Regarding Articles 85 and 86, see supra No. 321
et seq.
4. Article 88(l). See, e.g., the decision of Tribunal Cantonal de Vaud (Switzerland) of 17 May 1994, reported [at <http://cisgw3.law.pace.edu/cases/940517s1.html> and] in UNILEX (seller was neither entitled to export nor to sell to a third
party the unpaid support base; although Art. 88(1) CISG grants the seller who is
under an obligation to preserve the goods the right to sell them, if there is an
unreasonable delay by the buyer in taking possession of the goods or in paying the
price, a different order can be granted by the court in proceedings for a summary
injunction, especially where the goods are not subject to rapid deterioration (re. Art.
88(2), see text infra with following note) and since an authorization by the court to
sell the unpaid goods would have been contrary to Swiss rules of civil procedure).
5. Article 88(2). See, e.g., the decision of Tribunal Cantonal de Vaud (Switzerland), cited in the preceding note.
6. Article 88(3). [page 172]
Pace Law School
Institute of International Commercial Law - Last updated April 5, 2005