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CISG
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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

17th meeting

Friday, 21 March 1980, at 10 a.m.

Chairman: Mr. LOEWE (Austria)

The meeting was called to order at 10.05 a.m.

CONSIDERATION OF ARTICLES 1-82 OF THE DRAFT CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND OF DRAFT ARTICLE "DECLARATIONS RELATING TO CONTRACTS IN WRITING" IN THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES FOR THE DRAFT CONVENTION (agenda item 3) (A/CONF.97/5) (continued)

39
Article 37 [became CISG article 39 ] (continued)
(A/CONF.97/C.1/L.124)

1. The CHAIRMAN, at the request of the representative of Sweden, invited the Committee to revert, on a procedural matter, to the Ghanaian amendment (A/CONF.97/C.1/L.124), which had been withdrawn by its sponsor at the previous meeting.

2. Mr. HJERNER (Sweden) said that during informal talks after the previous day's meeting he had come to realize the importance of the Ghanaian amendment for the Asian-African Legal Consultative Committee. Although he had made his own position on the question perfectly clear, he would not like to miss an opportunity of finding a solution to the problems raised by articles 37 [became CISG article 39 ] and 38 [became CISG article 40 ] which would be more satisfactory for delegations that were in the majority.

3. He therefore proposed, first, that at meetings the Committee should confine itself to considering how far the other amendments to those articles were justified and only take indicative votes on them, and second, that it should set up a working group to find a formula which could be satisfactory to all. The working group would be composed of the representatives of countries which had taken a firm position on the question, namely, Bulgaria, Ghana, Pakistan, the United States of America and his own country, as an observer, together with representatives of other countries, such as Argentina, China and Finland.

4. The CHAIRMAN observed that while the representative of Sweden could suggest what course should be followed, his proposal would have to be put to the vote.

5. Mr. SEVÓN (Finland) said he considered the question very important for the future of the Convention and would be sorry if the Commission came to regret having adopted a stand which would prevent some States from acceding to the Convention. He supported the Swedish proposal.

6. The CHAIRMAN asked the Committee to try to find a more satisfactory formula which would be dealt with in accordance with rule 32 of the rules of procedure. It should not lose precious time in trying to find a solution to an insoluble problem.

7. Mr. INAAMULLAH (Pakistan) asked the Committee to give serious attention to the Swedish proposal, which he considered very reasonable.

8. Mr. HJERNER (Sweden) requested that his proposal, which had been supported by two delegations, should be put to the vote.

9. Mr. MATHANJUKI (Kenya) thought that article 37 [became CISG article 39 ] was fundamental to the Convention and that if there were no objections to the Swedish proposal, there would be no need to put it to the vote.

10. Mr. KHOO (Singapore) said that the point at issue was a very important one for the Committee. He approved of the Swedish proposal, for he did not think that the setting up of a working group would necessarily prevent the Committee from making progress on other articles.

11. Mr. HERBER (Federal Republic of Germany) thought it might be dangerous to set up a working group with no precise mandate as to the solution it was to seek. Since no final decision had been taken on articles 37 [became CISG article 39 ] and 38 [became CISG article 40 ], he proposed that the Ghanaian delegation should be given an opportunity to submit a revised proposal later, which any other delegations could help draft if they wished. He saw no need to take a vote, unless the representative of Sweden pressed for the formal setting up of a working group.

12. Mr. FARNSWORTH (United States of America) said he was sympathetic towards the Swedish proposal, but while not actually opposed to the establishment of a working group, would prefer the Committee to follow the normal procedure.

13. Mr. SANCHEZ-CORDERO (Mexico) supported the Swedish proposal and said that if a working group was set up his delegation would like to participate in its work.

14. Mr. PLANTARD (France) supported the proposal made by the Federal Republic of Germany.

15. Mr. HJERNER (Sweden) said he was prepared to follow the procedure proposed by the Federal Republic of Germany, provided that Ghana and Pakistan did not object.

16. Mr. SEVÓN (Finland) proposed that the debate on the question should be adjourned, in accordance with rule 24 of the rules of procedure.

17. Mr. DATE-BAH (Ghana) supported the Finnish proposal.

18. The CHAIRMAN said that, if there were no objections, he would take it that the Committee decided to adjourn the debate on articles 37 [became CISG article 39 ] and 38 [became CISG article 40 ].

19. It was so decided.

41, 42, 43
Articles 39 [became CISG article 41 and CISG article 43 ]
and 40 [became CISG article 42 and CISG article 43 ]
(A/CONF.97/C.1/L.77, L.127, L.128, L.129, L.133, L.134, L.145, L.159)

20. Mr. OSAH (Nigeria), introducing his proposal on articles 39 [became CISG article 41 and CISG article 43 ] and 40 [became CISG article 42 and CISG article 43 ] (A/CONF.97/C.1/L.159), said that it merely involved a question of drafting. It seemed to him that article 39(1) [became CISG article 41 ] and article 40(1) [became CISG article 42(1) ] had the same purpose, as both concerned the rights or claims of third parties. They could therefore be merged by the Drafting Committee.

21. Mr. DATE-BAH (Ghana) supported that proposal.

22. Mr. HJERNER (Sweden) considered that the Nigerian proposal in fact raised a substantive issue. The text of ULIS had dealt in general with third-party rights and claims, but it had been realized, at the Vienna session of UNCITRAL in 1977 that industrial or intellectual property constituted a separate case. That was why a special article had been drafted on the question; he would therefore like to keep the text as it stood.

23. Mr. HERBER (Federal Republic of Germany) agreed with the representative of Sweden that the Nigerian amendment was not purely a matter of drafting if it was intended to equate third-party rights or claims in general with those based on industrial or intellectual property. If it was only a matter of merging the first two paragraphs of those articles, that did not seem to be very useful. Moreover, article 40 [became CISG article 42 and CISG article 43 ] was already long and difficult to understand in its present form.

24. Mr. SZÁSZ (Hungary) observed that rights or claims based on intellectual or industrial property constituted a separate case. With regard to the rights mentioned in article 39 [became CISG article 41 and CISG article 43 ], the seller might have no difficulty in knowing what they were, but that did not apply to the rights referred to in article 40 [became CISG article 42 and CISG article 43 ]. That was why separate articles had been drafted to deal with those questions.

25. Mr. KRISPIS (Greece) thought the current debate was premature, as proposals were under discussion which had not yet been adopted. The Committee should deal first with articles 39 [became CISG article 41 and CISG article 43 ] and 40 [became CISG article 42 and CISG article 43 ] and then consider, if necessary, the possibility of merging the first paragraphs of those two articles.

26. Mr. MANTILLA-MOLINA (Mexico) said he thought that it would be preferable to keep the paragraphs in question separate, but that a new sentence might be inserted in article 39(1) [became CISG article 41 ], where the treatment of the question of rights or claims based on industrial or intellectual property was not satisfactory, indicating that rights or claims based on industrial or intellectual property were governed by article 40 [became CISG article 42 and CISG article 43 ]. The Drafting Committee could be left to work out the exact wording of that sentence.

27. Mr. OSAH (Nigeria) said that if the Committee felt that his proposal raised more than a drafting question he was fully prepared to accept its verdict and would not press for his amendment to be put to the vote.

28. Mr. KHOO (Singapore) felt that the wording of article 39(1) [became CISG article 41 ] was not wholly satisfactory. The expression "other than one . . . " implied that the obligations of the seller did not apply to rights based on industrial or intellectual property. Perhaps the Committee could adopt the wording proposed by his delegation (A/CONF.97/C.1/L.145), which merely involved a drafting change and might be useful if it proved too difficult to merge the two paragraphs under consideration.

29. Mr. OSAH (Nigeria) said that if a proposal on the lines of those by Mexico or Singapore was accepted, he would withdraw his amendment.

30. Mr. GHESTIN (France) said that the expression "other than one . . . " in article 39(1) [became CISG article 41 ] was unsatisfactory. It might be as well to delete that part of the sentence and add a paragraph 3 in article 39 [became CISG article 41 ], indicating that those provisions did not apply to rights and claims based on industrial or intellectual property, which were governed by article 40 [became CISG article 42 ].

31. Mr. KRISPIS (Greece) said that the expression "other than one . . . " would seem to imply an exception to the rule, which was not the case, rights or claims based on industrial or intellectual property simply being governed by another article. Perhaps the phrase "subject to article 40" [became CISG article 42 ] could be inserted in that paragraph. That was a purely drafting suggestion aimed at clarifying the text.

32. Mr. MANTILLA-MOLINA (Mexico) felt that the Committee was spending too much time on the question and proposed that article 39(1) [became CISG article 41 ] should be referred to the Drafting Committee, together with the suggestion by the Mexican delegation.

33. Mr. REISHOFER (Austria), supported by Mr. ROGNLIEN (Norway) thought it important to draw a clear distinction between the two types of rights or claims referred to in the Convention. The Singapore amendment might be purely a drafting matter, but the words "subject to" were liable to cause misunderstandings. It would be better to keep two separate provisions.

34. Mr. MANTILLA-MOLINA (Mexico), speaking on a point of order, requested that the debate on the question under discussion should be closed, in accordance with rule 25 of the rules of procedure.

35. The proposal was adopted without opposition.

36. Mr. POPESCU (Romania), speaking on a point of order, proposed that the Committee should vote first on the substance of articles 39 [became CISG article 41 and CISG article 43 ] and 40 [became CISG article 42 and CISG article 43 ]. Drafting matters could be dealt with afterwards.

37. Mr. MANTILLA-MOLINA (Mexico) considered that his proposal should be put to the vote before the Singapore amendment. The French amendment was similar to his own, but the one by Singapore seemed unacceptable.

The meeting was suspended at 11.10 a.m. and resumed at 11.30 am.

38. The CHAIRMAN asked the representative of Mexico to explain his amendment.

39. Mr. MANTILLA-MOLINA (Mexico) pointed out that his proposal was not to delete a part of article 39(1) [became CISG article 41 ] but to add a sentence indicating that rights or claims based on industrial or intellectual property were governed by article 40 [became CISG article 42 and CISG article 43 ].

40. Mr. OSAH (Nigeria) felt that in the light of the explanations given by the representative of Mexico, there was a lack of coherence between the end of the sentence and the beginning and that it would be necessary to have the written text of the Mexican proposal.

41. Mr. ROGNLIEN (Norway) and Mr. FOKKEMA (Netherlands) said that when the representative of Mexico had submitted his amendment, they had assumed that the expression "other than one based on industrial or intellectual property" in article 39(1) [became CISG article 41 ] had been deleted.

42. Mr. GHESTIN (France) said that he had understood the Mexican proposal to be similar to that by his own delegation, which was to delete from paragraph 1 the expression "other than one based on industrial or intellectual property" and to add a sentence to form a third paragraph on the following lines: "The provisions of the present article are not applicable to rights or claims based on industrial or intellectual property which are governed by article 40".

43. Mr. MANTILLA-MOLINA (Mexico) accepted that interpretation.

44. The oral amendment submitted by Mexico to article 39(1) [became CISG article 41 ] was adopted on the understanding that it would be put into final form by the Drafting Committee.

45. Mr. SEVÓN (Finland), introducing his amendment to articles 39 [became CISG article 41 and CISG article 43 ] and 40 [became CISG article 42 and CISG article 43 ] (A/CONF.97/C.1/L.133), pointed out that it was in keeping with the comments made by the World Intellectual Property Organization in document A/CONF.97/8/Add.2/ (pp. 9-11).

46. Mr. KRISPIS (Greece) did not see what purpose it would serve to use the wording "industrial property or other intellectual property", which seemed to imply that industrial property was merely an aspect of intellectual property.

47. Mr. SEVÓN (Finland) said that as his amendment gave rise to difficulties he would withdraw it.

48. Mr. KHOO (Singapore), introducing his amendment to article 39 [became CISG article 41 ] (A/CONF.97/C.1/L.145), said that its purpose was simply to remove the ambiguity in paragraph 1. The expression "subject to" seemed to him to be quite clear in English but it might not be in the other languages. The Drafting Committee could perhaps try to align the different versions of his proposal.

49. The CHAIRMAN thought that the amendment by Singapore was not just a drafting matter, because rights other than those based on industrial or intellectual property were subject to a different régime and less protection was given to the buyer in the case of rights based on industrial or intellectual property.

50. Mr. KRISPIS (Greece) wondered whether the amendment by Singapore still had any point in view of the fact that the Committee had adopted the Mexican proposal.

51. Mr. FARNSWORTH (United States of America) said that the Mexican proposal, which added a sentence to article 39(1) [became CISG article 41 ], and deleted the expression "other than one based on industrial or intellectual property", satisfied the objections which had been raised. The expression in English "subject to . . .", proposed by Singapore, would modify the substance of article 39 [became CISG article 41 ]. Article 40 [became CISG article 42 ] applied only to rights and claims based on industrial or intellectual property. There were thus two different régimes, and when the matter had been discussed at length at the UNCITRAL session in 1977, that expression had not won acceptance.

52. Mr. KHOO (Singapore) said that in view of the comments made by the United States representative he would withdraw his amendment.

53. The CHAIRMAN invited the members of the Committee to consider the amendment by Norway (A/CONF.97/C.1/L.127), which concerned the English text only.

54. Mr. KOPAC (Czechoslovakia) observed that the amendment proposed by Norway raised the problem of the consequences for the buyer of failing to give notice of the non-conformity of the goods within a reasonable time after he had become aware of it, which was dealt with in article 37(2) [became CISG article 39(2) ]. Many delegations had pointed out that the emphasis in the article was not on the lack of conformity of the goods but on the buyer's inability to rely on the provisions of paragraph 2. From that standpoint, the Norwegian amendment could not be adopted so long as a decision had not been taken about the wording to be used in article 37(2) [became CISG article 39(2) ], which had not yet been finalized. The texts of the two articles should be harmonized.

55. The CHAIRMAN said that he personally did not see a great deal of difference in the French version between the expression "ne peut se prévaloir" and the expression "est déchu du droit de se prévaloir", which corresponded to the Norwegian proposal, and asked the Norwegian representative if he wished to press his amendment.

56. Mr. ROGNLIEN (Norway), explaining his amendment, said that he attached importance to the harmonization of the expressions used in articles 37, 39 and 45 [became CISG article 39, CISG article 43 and CISG article 49 ] to define the cases in which the buyer lost his right to rely on the provisions. He recognized, however, that it would be preferable to defer consideration of his proposal until a decision had been taken on the wording of article 37(2) [became CISG article 39(2) ].

57. Mr. KRISPIS (Greece) pointed out that legally as well as logically a person could not lose a right unless he had possessed it in the first place, and that it would be more satisfactory to align the expression used in article 37(1) and (2) [became CISG article 39(1) and (2) ] ("the buyer loses the right") with the expression used in article 39(2) [became CISG article 43 ] ("the buyer does not have the right").

58. Mr. FARNSWORTH (United States of America), supported by Mr. FELTHAM (United Kingdom), agreed that it was unnecessary to use different terms to express the same idea in different articles and was in favour of the wording suggested by the Norwegian representative for the English text, namely, "the buyer loses the right".

59. The CHAIRMAN asked whether the members of the Committee were in favour of standardizing the expressions used in articles 37, 38, 39 [became CISG article 39, CISG article 40, CISG article 43 ] and other articles relating to the right of the buyer to rely on the remedies provided for in the Convention. If the Committee agreed to do so, there were two possible solutions: it could either adopt the expression in article 37 [became CISG article 39 ], which implied that the buyer had previously possessed the right in question or abide by the formula used in article 39 [became CISG article 43 ] or other articles which presumed that the buyer had not had the right earlier. In any event, it was necessary to make a choice and to harmonize the wording used in all languages and not merely in English, as the representative of Norway had proposed.

60. Mr. KIM (Republic of Korea) said he would prefer no decision to be taken on the matter until the wording of paragraphs 37 and 38 [became CISG article 39 and CISG article 40 ] had been agreed upon.

61. Mr. SAMI (Iraq) commented that in the corresponding Arab legislation the buyer had the right to terminate a contract in the event of failure to fulfill one of its provisions and lost that right in certain conditions. The expression "the buyer loses the right", proposed by the representative of Norway, therefore seemed to him appropriate.

62. The CHAIRMAN considered that the Norwegian amendment was not substantive, and suggested that all the articles concerned with the right of the buyer to rely on the remedies provided for should be referred to the Drafting Committee, which would be asked to standardize the expression used in them to indicate that the buyer lost his right when he had not performed certain acts and to ensure that it was worded in exactly the same way in the different language versions.

63. The proposal by the Chairman was adopted.

64. The CHAIRMAN invited the members of the Committee to consider the Canadian amendment (A/CONF.97/C.1/L.128) and the Norwegian amendment (A/CONF.97/C.1/L.77).

65. Mr. LOW (Canada) explained that the new paragraph 3 he had proposed in amendment A/CONF.97/C.1/L.128 was intended to prevent the buyer from being able to make a claim that was ill-founded and to enable the courts to settle cases in which the buyer had not suffered serious prejudice or inconvenience. However, in order to speed up the work of the Committee, he would withdraw that part of his amendment, but still maintained the principle stated in new paragraph 4, which defined the cases in which the seller would not be deemed to have committed a fundamental breach of contract. In that respect, the amendment was incompatible with the Norwegian proposal.

66. The CHAIRMAN saw no basic contradiction between the Canadian and the Norwegian proposals. It emerged a contrario from the Norwegian proposal that if the buyer complied with the obligations laid on him by article 39 [became CISG article 43 ], he did not commit a fundamental breach of contract. The idea expressed was similar to that of the Canadian proposal.

67. Mr. ROGNLIEN (Norway), introducing the Norwegian proposal (A/CONF.97/C.1/L.77), explained that there was a gap as regards remedies for third-party claims in the existing text of sections II and III of chapter II. Some remedies which referred to breach of contract or non-performance clearly covered breach under article 39 [became CISG article 41 ] also. But the remedies under article 42(2), 46 and 47 [became CISG article 46(2), CISG article 50, and CISG article 51 ] referred to non-conformity of goods and might not be deemed to cover situations where third-party rights or claims were in question, since they were regarded as presenting a different problem from non-conformity of the goods (see the title of section II). The amendment submitted by his delegation was intended to fill that gap by giving the buyer also the remedies envisaged in cases when the goods delivered were not in conformity with the contract. An alternative amendment on the same lines might be made in the parts of section III where the same clarification was required, in particular in article 46 [became CISG article 50 ].

68. Mr. HJERNER (Sweden) said he understood the position of the Norwegian representative, who had rightly emphasized that the buyer did not have the same remedies in the case of third-party rights and claims as in that of non-conformity of the goods, but pointed out that the authors of the Convention had deliberately distinguished between the two cases. While the Canadian proposal was related in certain respects to the Norwegian one, it was too late at the present stage to fill the gaps in the draft Convention with regard to the remedies available to the seller and buyer. The Canadian amendment was designed to prevent the buyer from being seriously prejudiced as a result of third-party rights or claims. However, there might be other factors involved and the gravity of the breach committed by the seller would depend on the circumstances. The problem was too complex to be settled as easily as that, and he would prefer to keep the existing text, in spite of its shortcomings.

69. Mr. KOPAC (Czechoslovakia) said he was unable to support the Norwegian proposal. Article 41 [became CISG article 45 ] of the draft Convention related to all the remedies available to the buyer in the event of the seller's failure to perform any of his obligations and consequently covered the obligations referred to in articles 39 [became CISG article 41 ] and 40 [became CISG article 42 ] as well. The solution proposed by Norway oversimplified the question, and he could not accept it.

70. Mr. MANTILLA-MOLINA (Mexico) agreed.

71. The CHAIRMAN put the Norwegian proposal (A/CONF.97/C.1/L.77) to the vote.

72. The Norwegian proposal was rejected.

73. The CHAIRMAN asked whether the representative of Canada maintained his proposal (A/CONF.97/C.1/L.128).

74. Mr. LOW (Canada) considered that in situations such as those envisaged in article 39 [became CISG article 41 ], the provisions of articles 44 and 45 [became CISG article 48 and CISG article 49 ] did not offer a very clear solution. It therefore seemed necessary to clarify the relationship between article 39 [became CISG article 41 ] and articles 44 and 45 [became CISG article 48 and CISG article 49 ]. He recognized that his proposal might not be the best possible way of dealing with the uncertainty and that it might be possible to find a more satisfactory wording. He would leave it to the Committee to settle that question.

75. Mr. FOKKEMA (Netherlands) said that he too was anxious to find an answer to the problem that bothered the Canadian delegation. It was important to determine how far the provisions on remedies would also apply to the clauses concerning third-party claims.

76. Mr. WIDMER (Switzerland) agreed with the Canadian and Netherlands delegations but considered that it would be preferable to deal with the matter within the context of articles 41 et seq. The question of the seller having a chance to remedy certain minor defects also arose with regard to physical non-conformity.

77. Mr. HJERNER (Sweden) was in favour of the principle behind the Canadian amendment but did not like the wording. The Committee might return to the matter when considering articles 44 to 48 [became CISG article 48, CISG article 49, CISG article 50, CISG article 51 and CISG article 52 ], which would give the Canadian delegation a chance to improve the wording of its amendment in the meantime.

78. The CHAIRMAN proposed that the Canadian delegation should withdraw its amendment and resubmit it when the Committee dealt with the articles on remedies.

79. Mr. LOW (Canada) withdrew his amendment (A/CONF.97/C.1/L.128).

80. The CHAIRMAN drew the Committee's attention to the amendment by the German Democratic Republic to article 40(3) [became CISG article 43 ] (A/CONF.97/C.1/L.134).

81. Mr. WAGNER (German Democratic Republic), introducing the amendment, pointed out that article 37(2) [became CISG article 39(2) ] allowed a period of two years for notice of lack of conformity. While it might admittedly be difficult to stipulate a period in article 44(2) [became CISG article 48(2) ], it would be desirable to do so in article 40(3) [became CISG article 43 ] if property rights were at stake.

82. Mr. SEVÓN (Finland) said he was fairly sympathetic towards the idea, but doubtful about its application. If a patent infringement was discovered after three years, there was practically nothing that could be done about it. His delegation could not, therefore, support amendment A/CONF.97/C.1/L.134.

83. Mr. HJERNER (Sweden) and Mr. KRISPIS (Greece) supported the amendment.

84. Mr. DABIN (Belgium) also supported the amendment by the German Democratic Republic and pointed out that the seller might have a heavy burden because in some cases he would have to undertake inquiries and research into industrial property rights, which he would not always be in a position to do. Although Belgium had not submitted an amendment to that effect, it might be as well to delete the words "or could not have been unaware" in article 40(1) [became CISG article 42 ]. Whatever the circumstances it would be advisable to limit the period during which the seller was liable.

85. Mr. FELTHAM (United Kingdom) opposed the addition requested by the German Democratic Republic, because he was already against the period of two years provided for in article 37 [became CISG article 39 ]. The fundamental right stated in article 40 [became CISG article 42 ] only applied to a third-party claim which the seller knew by definition the buyer could not have been unaware of.

86. Mr. WAITITU (Kenya), Mr. ROGNLIEN (Norway) and Mrs. KAMARUL (Australia) endorsed the arguments put forward by the representatives of Finland and the United Kingdom and said they could not support the amendment by the German Democratic Republic.

87. Mr. SAMI (Iraq) could not support the amendment either. The buyer might not get to know about a third-party right or claim until long after delivery, perhaps more than two years later.

88. Mr. GHESTIN (France) said he could not support the amendment by the German Democratic Republic because he was not in favour of the two-year period set in article 37. The buyer, moreover, was in an even worse position than the seller to know about industrial or intellectual property rights, and it was reasonable that the seller should bear greater liability in the matter than the buyer.

89. The CHAIRMAN put the amendment by the German Democratic Republic (A/CONF.97/C.1/L.134) to the vote.

90. The amendment by the German Democratic Republic was rejected.

91. Mr. BOGGIANO (Argentina) reintroduced amendment A/CONF.97/C.1/L.133, which had been submitted by Finland and then withdrawn.

92. The CHAIRMAN put amendment A/CONF.97/C.l/L.133, reintroduced by Argentina, to the vote.

93. Amendment A/CONF.97/C.1/L.133 was adopted.

94. The CHAIRMAN drew the Committee's attention to the amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.129).

95. Mr. KLINGSPORN (Federal Republic of Germany) said that the purpose of his amendment was to add an article 40 bis after article 40 [this addition became CISG article 43(2) ] in order to deal with a situation for which articles 39(2) and 40(3) [became CISG article 43 ] did not provide a satisfactory solution. But the question was related to article 38 [became CISG article 40 ], which had not yet been considered and which the German Democratic Republic was proposing should be deleted. He therefore thought it best that consideration of the amendment be postponed.

45
Article 41 [became CISG article 44 ]

96. Article 41 [became CISG article 45 ], to which no amendments had been submitted, was adopted without change.

40
Article 38 [became CISG article 40 ]

97. Mr. MASKOW (German Democratic Republic) said that in the light of the discussion on article 37 [became CISG article 39 ], during which some delegations had laid stress on the balance between articles 37 [became CISG article 39 ] and 38 [became CISG article 40 ], his delegation had decided to withdraw its amendment to article 38 [became CISG article 40 ].

19
Article 17 [became CISG article 19 ] (continued)
(A/CONF.97/C.1/L.157)

98. The CHAIRMAN said that under rule 32 of the rules of procedure, the Committee was to reconsider an amendment to article 17 [became CISG article 19 ] submitted by the Federal Republic of Germany.

99. Mr. LANDFERMANN (Federal Republic of Germany), referring to his amendment to article 17 [became CISG article 19 ] (A/CONF.97/C.1/L.157), said that consideration of article 25 [became CISG article 27 ] had shown article 17 [became CISG article 19 ] to be unclear on a minor point, which should preferably be dealt with in the First Committee rather than sent to the plenary Conference. The question was whether, in order to be valid, the notice referred to in article 17 [became CISG article 19 ] had to reach the other party or whether it was enough for it to have been dispatched. The proposal was designed to settle that point.

100. Mr. ROGNLIEN (Norway) supported the proposal by the Federal Republic of Germany and reminded the Committee that during the consideration of article 25 [became CISG article 27 ] it had been proposed that the rule in question should be stated in article 17(2) [became CISG article 19(2) ]. He had objected to a general provision to the effect that article 25 [became CISG article 27 ] should apply to part II. In article 17(2) [became CISG article 19(2) ], however, it should be enough for the notice to have been dispatched.

101. Mr. HJERNER (Sweden), speaking on a point of order, called for a vote on the decision to reconsider article 17 [became CISG article 19 ].

102. The decision was upheld.

The meeting rose at 1 p.m.

Pace Law School Institute of International Commercial Law - Last updated January 29, 1999
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