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Cite as Tallon, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 607-610. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 82

Denis Tallon

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

ARTICLE 82

(1) The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them.

(2) The preceding paragraph does not apply:
(a) if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which the buyer received them is not due to his act or omission;
(b) if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in Article 38; or
(c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or ought to have discovered the lack of conformity.

1. History of the provision

     1.1. - Article 82 sets forth a limitation on the right to declare the contract avoided when the buyer is unable to return «the goods substantially in the conditions in which he received them», i.e., when physical restitution of the goods has become impossible. Several exceptions to this rule are stated in paragraph (2). This article was inspired by Article 79 of ULIS. Numbered 67 in the Draft Convention, it underwent no subsequent modification.

2. Meaning and purpose of the provision

     2.1. - The buyer's loss of the right to avoid the contract when restitution has become impossible is not recognized everywhere. In [page 607] countries where avoidance is ordered by the judge, the impossibility of returning the good has repercussions on the granting of that remedy. The rules exists, however, in common law and in German Law (see § 351 of the Federal Republic of Germany Civil Code). It is designed to penalize the buyer by whose fault the goods deteriorated. It must be noted, however, that the impossibility of restituting the goods is defined by the Convention in a flexible way: the goods do not have to be in an identical state. They need only be in «substantially» the same conditions. Thus, a machine which has been used only a few time will most likely be regarded as «substantially in the same condition in which the buyer received» it. The text leaves much freedom to the judge.

Finally, if the goods are generic goods the buyer may always supply substitute goods.

     2.2. - According to the first exception stated in paragraph (2), the buyer retains the right to declare the contract avoided if the impossibility to restitute the goods «is not due to his act or omission». Thus, if goods lacking conformity disappear owing to the buyer's negligence, the latter cannot declare the contract avoided. This rule does not apply, however, if for instance the goods are requisitioned by a public authority. This exception is therefore closely connected with the situation envisaged in Article 79, reference to which may be useful in order to determine what is and what is not an impossibility «due to the buyer's act or omission».

If the impossibility is imputable to the buyer, he cannot claim damages. The seller, however, can do so on the ground of the loss that he suffered by not retrieving the goods. The rules governing tort liability are applicable.

If the non-restitution of the goods is not imputable to the buyer, the theory of risks will interfere. Delivery of the goods transfers the risk to the buyer. But, the latter retains the right to declare the contract avoided, and if he does exercise that right, the declaration transfers the risks back to the seller.

     2.3. - The second exception stated in paragraph (2) is designed to avoid any misunderstanding. It deals with the situation in which the goods have perished or deteriorated as a result of the [page 608] examination provided for in Article 38. The buyer would, however, lose the right to declare the contract avoided if it appeared that he were liable for the destruction.

     2.4. - The last exception is somewhat surprising: the buyer retains the right to declare the contract avoided, e.g., for lack of conformity, if he has resold, consumed or transformed the goods, thus rendering physical return impossible. This exception is, in effect, limited. Indeed, the goods must be sold «in the normal course of business», which will seldom be the case if the goods lack conformity. The consumption and the transformation of the goods must also have taken place in normal circumstances. But as consumed goods are likely to be fungible, restitution will, in any event, be possible. Persons to whom the goods are resold are not affected by the Convention; nonetheless they are protected by the widely recognized principle of good faith. Moreover, according to Article 84(2) the initial buyer must restitute the benefits he derived from the transaction.

Why then does the buyer who resells, transforms or consumes the goods, thus rendering restitution impossible, nevertheless retain the right to declare the contract avoided and to claim what is only a compensation in money? It is not easy to find a valid justification. It has been suggested (HONNOLD, Uniform Law, 452) that the burden of any reduction in market prices should be placed on the seller. Yet Article 82 does not apply only to fungible goods. The better explanation is perhaps that this provision enables the buyer to obtain damages without proving that he suffered any loss. This advantage, however, is very limited and the provision is finally of minor interest. [page 609]


Pace Law School Institute of International Commercial Law - Last updated February 10, 2005
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