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Cite as Tallon, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 611-612. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 84

Denis Tallon

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

ARTICLE 84

(1) If the seller is bound to refund the price, he must also pay interest on it, from the date on which the price was paid.

(2) The buyer must account to the seller for all benefits which he has derived from the goods or part of them:
(a) if he must make restitution of the goods or part of them; or
(b) if it is impossible for him to make restitution of all or part of the goods or to make restitution of all or part of the goods substantially in the condition in which he received them but he has nevertheless declared the contract avoided or required the seller to deliver substitute goods.

1. History of the provision

     1.1. - Article 84, derived without any major alteration from Article 81 of ULIS and Article 69 of the UNCITRAL Draft Convention, is concerned with the subject matter of the restitution. The restitution is not designed to penalize the buyer: it aims at restoring the former state of things, i.e., that which existed prior to the conclusion of the contract. The rules set forth in this article are, however, incomplete. Although the principle of restitution is clearly stated, the article fails to specify how it applies practically.

2. Meaning and purpose of the provision

     2.1. - The first paragraph states that where the seller is under obligation to refund the price, he must pay interest from the date of payment. This provision constitutes the counterpart of Article 78 (failure to pay the price). The buyer received or could have received interest up to the date of reimbursement: the [page 611] seller is therefore accountable for it. Thus, the buyer has a right to the interest he could have received had he not paid the seller. The text does not say how these interests are to be calculated. As opposed to what happened with regard to Article, 83 of ULIS, the Vienna Conference was unable to agree on this particular point (see commentary on Article 78, supra). It is thus governed by the applicable domestic law. According to the Secretariat's Commentary (Official Records, I, 58) the rate of interest payable should «be based on that current at the seller's place of business ... since the obligation to pay interest partakes of the seller's obligation to make restitution and not of the buyer's to claim damages» (for a similar view see also HONNOLD, Uniform Law, 455). This view is debatable. The determination of the law applicable to the rate of interests is, in effect, much more complex (see LANDO, International Encyclopedia of Comparative Law, III, Private International Law, chap. 24, Contracts, 1976, 118).

     2.2. - Furthermore, «the buyer must account to the seller for all the benefits which he has derived from the goods or part of them» (Article 84(2)). This will be the case, of course, if the buyer is under an obligation to restitute the goods -- either wholly or in part -- and does, in effect, restitute them. He may, indeed, have derived some advantage from the goods without deteriorating them (Article 84(2)(a)). But the buyer may also have to restitute the profit he derived from the goods (i) that he is finally unable to return, (ii) although he has the right to declare the contract avoided (see Article 82(2)), and (iii) does exercise that right (Article 84(2)). Thus, if he sells goods that lack conformity, as a rule, he will be compelled to restitute the price. The solution is obvious. It is based on the general principle of unjust enrichment. In the absence of any precision in the article concerning the mode of assessment of this benefit the matter is governed by the applicable law on restitution and quasi-contract. It must be noted, however, that this amount will often constitute only one aspect of the financial relationship which binds the buyer and the seller and which includes interests on the price, damages, restitution of profit, etc. [page 612]


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