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CISG
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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

24th meeting

Wednesday, 26 March 1980, at 3 p.m.

Chairman: Mr. LOEWE (Austria)

The meeting was called to order at 3 p.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, 6) (continued)

52
Article 48 [became CISG article 52 ] (continued)
(A/CONF.97/C.1/L.108)

1. Mr. SAMI (Iraq) introduced his delegation's amendment to article 48(2) [became CISG article 52(2) ] (A/CONF.97/C.1/L.108). The provision envisaged the case in which the buyer agreed to take delivery of a quantity greater than that provided for in the contract. The seller could have sent the excess quantity by mistake, or he could have acted intentionally in the belief that the buyer would not refuse it. The buyer, for his part, might find himself in an awkward position if it would be expensive for him to return the excess quantity to the seller, but he might on the other hand have need of it. It could also happen that the price of the goods had dropped since the conclusion of the contract. The Iraqi proposal to replace the words "he must pay for it at the contract rate" by the words "he must pay for it at no more than the contract rate" would at all events facilitate the negotiation of the price of the excess quantity and would be in the interests of both parties.

2. Mr. KRISPIS (Greece) thought that while the thinking behind the proposal by Iraq was sound, the case in question was covered by article 5 of the draft Convention [became CISG article 6 ].

3. The CHAIRMAN noted that the amendment by Iraq did not command support. If there were no objections, he would take it that the Committee rejected it.

4. It was so decided.

4(a)
Proposed new article 48(a) [relates to the provision that became CISG article 4(a) ]
(A/CONF.97/C.1/L.175)

5. Mr. FOKKEMA (Netherlands) introduced the text of a new article to be inserted after article 48 [relates to the provision that became CISG article 4(a) ] (A/CONF.97/C.1/L.175). He would illustrate the advantages of the proposed provision by the following example: a museum in the Netherlands bought a famous Goya painting from France, which had been duly identified as such in the contract. Four years after the delivery of the painting, an expert found that it was not by Goya but by one of his pupils. The Board of Directors of the Netherlands museum considered that the discovery greatly reduced the value of the painting and consulted a lawyer. Under the Convention, the situation was clear. The Netherlands museum could invoke the remedies provided for in chapter II, on the grounds of non-conformity of the goods. However, it was stipulated in article 37(2) [became CISG article 39(2) ] that the buyer lost the right to rely on a lack of conformity of the goods if he did not give the seller notice thereof at the latest within a period of two years from the date on which the goods were handed over to him. The Netherlands museum was therefore unable to take legal action. The lawyer consulted would probably nevertheless advise the museum to bring an action, disputing the validity of the contract, despite article 4(a) [became CISG article 4(a) ] of the Convention, which stated that the Convention was not concerned with the validity of the contract, because in that particular case, the museum could legitimately claim an error of substance, which was a valid reason in French municipal law as well as Netherlands municipal law. There would be a serious gap in the Convention if article 37(2) [became CISG article 39(2) ] could be circumvented so easily. His delegation, therefore, without going as far as the provisions of ULIS, which did not allow the buyer to rely on any remedies other than those available to him under the Convention, would like to see it clearly stated in the Convention that the buyer could not exercise the remedies granted under the Convention or the national law applicable for lack of conformity or for invalidity of the contract except "under the terms of articles 36 to 38" [became CISG article 38 , CISG article 39 and CISG article 40 ], article 37 [became CISG article 39 ] being in the present case the most important of the three.

6. Mr. VINDING KRUSE (Denmark) considered that the Netherlands proposal was sound and improved the Convention considerably. Some delegations would undoubtedly be reluctant to approve it on the grounds that the Convention, by virtue of article 4 [became CISG article 4 ], was not concerned with "the validity of the contract". It should also be borne in mind that, in the example given by the Netherlands representative, the derogation from the period of two years accorded to the buyer (contractual period of guarantee) to rely on lack of conformity under article 37(2) [became CISG article 39(2) ] could not be invoked.

7. Mr. DATE-BAH (Ghana) said he was unable to support the Netherlands proposal because all questions bearing on the validity of the contract had been deliberately excluded from the sphere of application of the Convention and were covered solely by municipal law.

8. Mrs. FERRARO (Italy) was in favour of the Netherlands proposal. Under Italian law, notice could be given if a mistake in the essential qualities of the goods after five years, and invalidity of the contract was very close as grounds to lack of conformity.

9. Mr. SCHLECHTRIEM (Federal Republic of Germany) also supported the Netherlands proposal. In the interpretation of ULIS prevailing in his country, the problem raised by the Netherlands representative would normally come under the rules applicable to failure to perform or lack of conformity in order to protect the unified system of remedies from conflicting provisions of national law.

10. Mr. KRISPIS (Greece) regretted that he was unable to support the Netherlands proposal because it involved municipal law. The proposal presupposed that the Convention and municipal law would be applied simultaneously, and that was extremely difficult to accept, particularly when the principle concerned was of such broad scope.

11. The CHAIRMAN put the Netherlands proposal to the vote (A/CONF.97/C.1/L.175).

12. The Netherlands proposal was rejected by 24 votes.

53
Article 49 [became CISG article 53 ]

13. Article 49 [became CISG article 53 ], to which there were no amendments, was adopted without change.

54
Article 50 [became CISG article 54 ]
(A/CONF.97/C.1/L.201)

14. Mr. OLIVENCIA RUIZ (Spain) introduced an amendment to article 50 [became CISG article 54 ] (A/CONF.97/C.1/L.201) on behalf of the sponsors (Argentina, Portugal and Spain). It concerned the addition to article 50 [became CISG article 54 ] of a sentence dealing with a question which was not mentioned at all in the draft Convention, namely, the nature of the payment or in other words, of the currency in which the buyer was required to pay the price. The omission was presumably not accidental, but due to the fact that, under national legislation or exchange controls, payment of the price assumed different forms depending on the country concerned. However, the additional sentence proposed would not hinder the application of national regulations in any way, since the sponsors made it clear that payment ought to be effected in the contractual currency. They had mainly been thinking of cases in which national exchange regulations would prevent the buyer from paying in the agreed currency and considered that the present text of article 50 [became CISG article 54 ] was not sufficient to compel the buyer to pay. The buyer could in fact invoke article 65 [became CISG article 79 ] to evade his obligations in that respect, which would be wrong. If the buyer was materially able to pay the price, he should be prevented from taking advantage of the gap in the Convention which would make it possible for him to evade the obligation to do so. The sponsors had therefore believed it useful to give the seller the power to require equivalent payment in the legal currency of the buyer's place of business.

15. Mr. HJERNER (Sweden) said he fully appreciated the sponsor's reasons for submitting the proposal. However, the question of the currency in which payment should be made was extremely complex and formed the subject of a specific convention drawn up by the Council of Europe. The omission of any provision on the currency of payment in the draft Convention was in fact intentional and justified. He would therefore be unable to support the proposal.

16. The representative of Spain had said that the buyer would be able to invoke the remedies available to him under article 65 [became CISG article 79 ] to evade the obligation to pay the price. But article 65 [became CISG article 79 ] was concerned exclusively with the payment of damages, and the draft Convention, unlike ULIS, did not give the buyer any means whatsoever of evading his fundamental obligation.

17. The proposal gave the impression that a creditor would be unable to demand payment except in the place where the buyer had his place of business, whereas the creditor could claim his rights wherever the buyer had any assets. The sentence to be added to article 50 would thus represent a restriction which would be prejudicial to the interests of the creditor.

18. Mr. KRISPIS (Greece) considered that the draft Convention refrained quite deliberately from mentioning the currency of payment. The problems connected with the currency of payment were related to those concerning the validity of the contract, which, under article 4 (a) of the draft Convention [became CISG article 4(a) ], were excluded from its sphere of application. In the event of litigation on the currency of payment, the national courts would first consider whether or not the contract was valid. If it was found to be valid, the next question to be settled would be the rate of exchange at which the payment should be made, i.e. the rate of exchange on the date of the contract or on the date of the judgement. At the stage it had reached in its work, the Committee could no longer take up such complex problems.

19. The CHAIRMAN put to the vote the proposal by Argentina, Portugal and Spain (A/CONF.97/C.1/L.201)

20. The proposal was rejected by 22 votes to 9.

55
Article 51 [became CISG article 55 ]
(A/CONF.97/C.1/L.83, L.158, L.183, L.196, L.200, L.202 and L.205)

21. The CHAIRMAN invited the Committee to consider first of all amendments A/CONF.97/C.1/L.83, L.158 and L.205 to delete article 51 [became CISG article 55 ], the last containing an alternative proposal if article 51 [became CISG article 55 ] was maintained.

22. Mr. ANDRYUSHIN (Byelorussian Soviet Socialist Republic) said that the reasons for his delegation's amendment (A/CONF.97/C.1/L.158) were explained in document A/CONF.97/8/Add.1. Article 51 [became CISG article 55 ] stipulated that it was the price charged by the seller at the time of the conclusion of the contract that must be paid, even if no such price was mentioned in the contract. But if the price was not stated in the contract, it was not valid. The question was governed by article 12(1) [became CISG article 14(1) ], which provided that one of the conditions that must be met in order for a contract to be valid was precisely that the price should be expressly or implicitly fixed.

23. Mr. FELTHAM (United Kingdom) maintained that article 51 [became CISG article 55 ] was still valid. For instance, a buyer might order spare parts for machines purchased earlier and the seller send parts without the price having been fixed; article 51 [became CISG article 55 ] was perfectly applicable in those circumstances. It was only reasonable that the buyer should pay the price charged at the time of the conclusion of the contract. He was therefore against deleting the article.

24. Mr. VINDING KRUSE (Denmark) fully agreed with the United Kingdom representative.

25. Mr. MINAMI (Japan) thought that in view of the provisions of article 12 [became CISG article 14 ], article 51 [became CISG article 55 ] was unnecessary. Account must also be taken of the possibility that some countries might only ratify Parts I and III of the Convention. That being so, why keep article 51 [became CISG article 55 ], which envisaged an exceptional situation?

26. Mr. SEVÓN (Finland) said there was no means of knowing whether countries would ratify one particular part of the Convention rather than another. His own delegation had some difficulties with regard to article 12 [became CISG article 14 ] (Part II). If article 51 [became CISG article 55 ] was deleted, national law would then apply, which would tend to weaken the Convention. The fact the price was not fixed in a contract did not mean that there was no contract, as was shown by commercial practice. Furthermore, article 51 [became CISG article 55 ] unified the provisions of the different national legislations on the subject.

27. Mr. DATE-BAH (Ghana) considered article 51 [became CISG article 55 ] out of place in the Convention. Under Part II of the Convention, a contract which did not expressly or implicitly fix the price was invalid. Some countries' national law, admittedly, recognized the conclusion of the contract even in that case. But it was not the purpose of the Convention to unify national law. To keep article 51 [became CISG article 55 ] would only create confusion in the minds of courts called upon to interpret article 12 and article 51 [became CISG article 14 and CISG article 55 ] together. Article 51 [became CISG article 55 ] should therefore be deleted.

28. Mr. KRISPIS (Greece) pointed out that article 12 [became CISG article 14 ] provided for two possibilities: the price might be expressly fixed in the contract, or the contract might make provision for determining it. It would therefore be useful to keep article 51 [became CISG article 55 ], since it applied precisely in the event that the price was not explicitly fixed.

29. Mr. LANDFERMANN (Federal Republic of Germany) thought that the formula proposed in article 12 [became CISG article 14 ] was sufficiently flexible. As for article 51 [became CISG article 55 ] it offered a procedure which was merely intended to help the court to determine the price when it was not fixed in the contract. The two articles should be harmonized, in order to ensure that as many States as possible ratified Parts II and III of the Convention. Perhaps it would suffice to amend the wording of article 51 [became CISG article 55 ].

30. Mr. SAMI (Iraq) was in favour of keeping article 51 [became CISG article 55 ] as it stood, since it was entirely consistent with national legislation. Countries which ratified that Part of the Convention would not have to amend their laws. Article 51 [became CISG article 55 ], moreover, had the advantage of being clear and would be helpful in resolving complex problems and situations.

31. Mr. EYZAGUIRRE (Chile) said he was unable to support the proposal to delete article 51. His country's code of commerce, like that of many other Latin American countries, contained similar provisions and no problem had arisen so far. The article would provide a completely satisfactory solution for countries which might be unable to ratify Part II of the Convention, but would be prepared to ratify Part III.

32. Mr. MANTILLA-MOLINA (Mexico) was in favour of keeping article 51 [became CISG article 55 ]. Article 12 [became CISG article 14 ] and article 51 [became CISG article 55 ] were, in fact, complementary, the former sanctioning contracts in which the price was implicitly fixed and the latter providing a means of determining the price.

33. Mr. BENNETT (Australia) said he could not support the USSR amendment (A/CONF.97/C.1/L.83), as article 51 [became CISG article 55 ] contained some useful provisions.

34. Mr. ROGNLIEN (Norway) said that it was realistic to think that Governments might not ratify Part II of the Convention. Difficulties might also otherwise arise in connection with the relations between Parts II and III. If the parties to the contract excluded the application of Part II of the Convention, Part III would still apply and the contract would remain valid in spite of article 12 [became CISG article 14 ]. Usages might also come into play and modify article 12 [became CISG article 14 ]. Thus it was necessary to keep article 51 [became CISG article 55 ].

35. Mr. KIM (Republic of Korea) said he was unable to support the USSR amendment (A/CONF.97/C.1/L.83), for the reasons put forward by previous speakers. The provisions of article 12 [became CISG article 14 ] were not mandatory. Article 51 [became CISG article 55 ] would have its raison d'être if, for example, the parties excluded the application of one Part of the Convention.

36. Mr. MATHANJUKI (Kenya) said he was sympathetic towards the USSR proposal, because the link between article 12 [became CISG article 14 ] and article 51 [became CISG article 55 ] would create a problem when it came to interpreting the Convention. However, if the contract related to a particular type of goods, article 51 [became CISG article 55 ] might prove useful. He suggested rewording article 51 [became CISG article 55 ].

37. Mrs. FERRARO (Italy) objected to the deletion of article 51 [became CISG article 55 ]. Her country's legislation contained a similar provision and regulated the matter in the same way. The important thing was the commercial transaction, regardless of whether the price had been fixed implicitly or expressly. Where the parties referred to a price, even if the reference was not obvious, it was clear that there was an undertaking to pay that price. The contract was therefore valid.

38. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that that question had given rise to varying interpretations from the very beginning. Some countries whose legislation on that point was vague had referred to the Hague Sales Convention of 1964. The Committee should proceed cautiously when it took a final decision on that question. Many countries, while accepting Parts I, II and III of the Convention, nevertheless found articles 12 and 51 [became CISG article 14 and CISG article 55 ] contradictory. There would accordingly be a risk of error and uncertainty for the courts, and still more so for the trading partners. Even more serious difficulties were liable to arise if, for example, a country ratified Part III of the Convention, but not Part II; in that case, article 51 [became CISG article 55 ], even an improved version, would be construed as a general rule applicable to all international transactions. As worded at present, article 51 [became CISG article 55 ] left each country's court to decide whether or not a contract which did not fix the price was valid, but at the same time it sought to regulate the consequences of such contracts, which was tantamount to a partial unification of the law on the subject. The disadvantages of such a solution outweighed the positive aspects.

39. Mr. HJERNER (Sweden) reminded the Committee of an important fact: the Convention was composed of two Parts, one relating to the sale of goods and the other to the formation of contracts. Countries could ratify the one without ratifying the other. With respect to article 12 [became CISG article 14 ], a stricter approach had prevailed, provisions having been introduced to the effect that a contract was not valid unless it stated the price. At the last UNCITRAL session, a compromise solution had been reached, article 51 [became CISG article 55 ] being applicable to cases where the sale had been validly concluded without the price of the goods having been stated in the contract. Some delegations had been in favour of introducing a more flexible provision in Part III for the benefit of countries which only ratified that Part. In his opinion, article 12 [became CISG article 14 ] and the first sentence of article 51 [became CISG article 55 ] provided enough protection for those who preferred a strict rule. It would be pointless to bring article 51 and article 12 [became CISG article 55 and CISG article 14 ] still closer together, as that might discourage some countries from acceding to one or other of those two Parts.

40. Mr. OSAH (Nigeria) thought that article 51 [became CISG article 55 ] served a useful purpose in the Convention. It was quite natural that, if a sale was concluded without the price of the goods having been stated, the buyer should pay the price generally charged by the seller. The very pertinent example given by the United Kingdom delegation clearly showed the advantages of having such a provision. However, he had reservations on the second sentence of article 51 [became CISG article 55 ], which might make for confusion.

41. The CHAIRMAN put to the vote the amendments to delete article 51 [became CISG article 55 ] submitted by the Byelorussian SSR (A/CONF.97/C.1/L.158), the USSR (A/CONF.97/C.1/L.83) and France (A/CONF.97/C.1/L.205).

42. The amendments were rejected by 27 votes to 14.

The meeting was suspended at 4.35 p.m. and resumed at 4.55 p.m.

43. Mr. PLANTARD (France), introducing the second French amendment to article 51 [became CISG article 55 ] (A/CONF.97/C.1/L.205, para.2), said that his delegation had realized that it would be difficult to secure the deletion of article 51 [became CISG article 55 ] and had therefore drawn up a subsidiary proposal aimed at harmonizing articles 12 and 51 [became CISG article 14 and CISG article 55 ].

44. His delegation had endeavoured to improve the wording of article 51 [became CISG article 55 ], for in the view of some delegations, articles 12 and 51 [became CISG article 14 and CISG article 55 ] were contradictory in their present form and therefore liable to create difficulties in their application. It had also tried to harmonize the content of articles 51 and 12 [became CISG article 55 and CISG article 14 ] in an effort to reconcile the two approaches involved and as a concession to those delegations which had difficulty in accepting the principle whereby the price must, in every case, be determined in the contract or at least be determinable.

45. He drew the Committee's attention to the new, and to his mind, fruitful element in the French proposal. When a contract did not expressly fix the price, it must, under the terms of article 12 [became CISG article 14 ], make provision for determining it. Such provision might be of a very tenuous nature and even implicit. The idea of implicit provision would provide an answer in the situations envisaged in the examples given by various delegations. A French court in a similar case would take it that there had been an implicit agreement by the parties on the price generally charged by the seller or on the market price, to which the parties would be supposed quite naturally to have referred.

46. Mr. BONELL (Italy) said that he subscribed, broadly speaking, to the ideas put forward by the French representative, even though he did not think the French proposal entirely satisfactory. While the Committee should now try to harmonize article 51 and article 12 [became CISG article 55 and CISG article 14 ], in the light of the debates to which the proposal to delete article 51 [became CISG article 55 ] had given rise, it was doubtless still too early to establish a text which would be likely to command the widest support.

47. Article 12 [became CISG article 14 ] clearly stated the principle whereby a contract, in order to be valid, must expressly or implicitly fix the price. It was essential to reaffirm that principle in article 51 [became CISG article 55 ]. However, provision must be made for cases where the contract was not sufficiently clear on that point. Consequently, the purpose of article 51 [became CISG article 55 ] would be to specify which criteria should be applicable for determining the price when it had not been stated or expressly or impliedly made provision for in the contract, provided, of course, that those criteria reflected the wish of the parties.

48. In conclusion, he wondered whether the solution might not be to insert in the first sentence of article 51 [became CISG article 55 ], before the words "the buyer", the following sentence: "the parties are deemed to have impliedly agreed that . . . ".

49. The CHAIRMAN said that he could not put to the vote an amendment which had not been submitted in writing.

50. Mr. SHORE (Canada) warmly supported the French proposal, as a successful attempt to harmonize legal systems with different approaches. Drafted in the manner proposed, article 51 [became CISG article 55 ] would allow greater flexibility and would result in improved co-ordination of international trade; he believed that it deserved the Committee's closest attention.

51. Mr. DATE-BAH (Ghana) was not convinced that the French proposal would permit a satisfactory harmonization of articles 12 and 51 [became CISG article 14 and CISG article 55 ]. As the representative of Sweden had pointed out, the first phrase of the latter established that its provisions were subordinate to those of the former; article 51 [became CISG article 55 ] was only applicable, therefore, in cases where a Contracting State had not ratified or accepted Part II of the Convention (Formation of the contract). Furthermore, the likelihood of contracts being concluded without any indication of price was very remote. The French proposal merely reiterated the principle set out in article 12 [became CISG article 14 ], in a manner which might give rise to confusion; it was therefore superfluous. His delegation would favour keeping article 51 [became CISG article 55 ] as originally drafted, since Part II of the Convention should not be called in question.

52. Mr. BENNETT (Australia) said that he would support any acceptable compromise solution for article 51 [became CISG article 55 ], but was not sure that the French proposal was satisfactory in that respect. Moreover, as a number of speakers had pointed out, the discussion had revealed a pronounced divergence of views between delegations which advocated a very restrictive approach and those which favoured greater flexibility; it might therefore be asked whether it was realistic to seek a generally acceptable formulation. It might be preferable to acknowledge that some States would not be able to accept Part II of the Convention.

53. The amendment proposed by France had the disadvantage of stipulating that the contract should provide guidelines for determining the price. In reality, many contracts contained no guidelines whatever for the price fixing procedure. He believed that article 51 [became CISG article 55 ] as originally drafted constituted a reasonable solution.

54. Mr. PLANTARD (France) wondered whether the English text was a faithful rendering of his amendment. Where the original spoke of "indications" for determining the price, the English spoke of "guidelines". The distinction was more than a question of nuance, in so far as indications could be tacit.

55. Mr. HONNOLD (United States of America) said that despite that clarification he could not agree to the French proposal, which would still leave the situation uncertain.

56. Mr. MANTILLA-MOLINA (Mexico) was regretfully unable to support the French proposal, which, in his opinion, was no clearer than the original text of article 51 [became CISG article 55 ]. Its reference to indications for determining the price appeared to relate to the time of the conclusion of the contract and to its actual or implicit content; it thus constituted a suggestion as to the manner in which the contract should be formulated. Article 51 [became CISG article 55 ] provided for cases in which the question of price, having been omitted from the terms of the contract, was submitted to arbitration; the question was what criteria were to be applied in the arbitration process. In that respect, the text proposed by France could lead to confusion.

57. Mr. WAITITU (Kenya) did not find the French solution satisfactory. If article 51 [became CISG article 55 ] was to be kept in the Convention, it would have to represent a compromise; the oral amendment submitted by Italy to the French proposal might be the answer.

58. Mr. LANDFERMANN (Federal Republic of Germany) believed that articles 12 and 51 [became CISG article 14 and CISG article 55 ] could be reconciled; although its wording could be improved, the French proposal offered a satisfactory solution and was acceptable to his delegation.

59. Mr. SEVÓN (Finland) moved the adjournment of the debate on the article, in accordance with rule 24 of the rules of procedure. He proposed that an ad hoc working group, composed of the representatives of Argentina, France, Ghana, Pakistan, Sweden and the USSR, should be set up to prepare an acceptable proposal.

60. Mr. OSAH (Nigeria), Mr. HJERNER (Sweden) and Mr. BOGGIANO (Argentina) supported the proposals by the representative of Finland.

61. The CHAIRMAN said that if there were no objections, he would consider that the Committee wished to adopt the motion for adjournment and to approve the establishment of the proposed working group, to which the representatives of India, Italy and Turkey would also be added.

62. It was so decided.

56
Article 52 [became CISG article 56 ] (A/CONF.97/C.1/L.109, L.207)

63. Mr. OLIVENCIA RUIZ (Spain) introduced the joint amendment by Argentina, Portugal and Spain (A/CONF.97/C.1/L.207). Its sole purpose was to render article 52 [became CISG article 56 ] more explicit, since the existing text could be misunderstood. In establishing stricter and more specific criteria for the determination of price according to weight, it merely clarified the original and thus amounted to a drafting amendment. Its sponsors would not object to it being put to the vote or transmitted to the Drafting Committee.

64. Mr. KRISPIS (Greece) believed that the matter was one of substance. In the light of article 5 [became CISG article 6 ], as the Committee had recognized in another context, an expression such as "unless otherwise agreed" was quite superfluous.

65. Mr. BENNETT (Australia) pointed out that in the English text the replacement of the word "fixed" by the word "stated", which was narrower in sense, would entail a change of substance; he would be unable to accept such a change.

66. Mr. MANTILLA-MOLINA (Mexico) fully supported the amendment, which was merely a drafting matter.

67. Mr. HONNOLD (United States of America) believed that the matter could be considered as one of drafting provided it was understood that the term "unless otherwise agreed" allowed for commercial usage and practices to be taken into account. Under no circumstances should the Drafting Committee alter that idea.

68. Mr. OLIVENCIA RUIZ (Spain), replying to a question by the CHAIRMAN, said he would prefer the joint proposal by Argentina, Portugal and Spain to be put to the vote. The amendment comprised not only the addition of a phrase, but also the deletion from the original text of the words "in case of doubt".

69. The proposal was rejected by 22 votes to 10.

70. Mr. SAMI (Iraq) introduced his delegation's proposal concerning article 52 [became CISG article 56 ] (A/CONF.97/C.1/L.109). The general provisions of the draft Convention, and more particularly article 8 [became CISG article 9 ], acknowledged the validity of usage. But usage varied according to the country and the goods involved. When the parties were aware of any usage and had agreed to it, the situation was clear, but there were situations where doubt could exist. The first part of the Iraqi amendment (A/CONF.97/C.1/L.109, paragraph 1) was designed to remove that doubt as far as the provisions of article 52 [became CISG article 56 ] were concerned.

71. Mr. KRISPIS (Greece) supported the Iraqi proposal, which made the text clearer.

72. Mr. WAGNER (German Democratic Republic) considered the addition to article 52 [became CISG article 56 ] proposed by Iraq to be superfluous.

73. Mr. SCHLECHTRIEM (Federal Republic of Germany) was unable to support the Iraqi proposal, which might lead to recognition of local usages which fell outside the scope of the Convention. Article 8 [became CISG article 9 ], which dealt with the question of usage, was limited in scope.

74. Mr. ZIEGEL (Canada) shared that point of view. Article 52 [became CISG article 56 ] only applied in cases of doubt. The court would have to consider all possible sources of interpretation, while abiding by article 8 [became CISG article 9 ] and taking due account of usage. If usage did not clarify the situation, there was no point in mentioning it in article 52 [became CISG article 56 ].

75. Mr. HONNOLD (United States of America) endorsed the remarks by the representative of Canada. Article 8 [became CISG article 9 ] referred both to usage and to practices. The effect of the Iraqi proposal would be to exclude the latter by not mentioning them. There was no point in mentioning both those elements in article 52 [became CISG article 56 ], and it would be inadvisable to mention only one.

76. Mr. SAMI (Iraq) explained that the second Iraqi amendment (A/CONF.97/C.1/L.109, paragraph 2) was designed to take account of the fact that certain goods lost or gained weight during transit -- a matter which was not covered by the draft Convention. He called attention to an error which had crept into the French text of the proposal, where the words "résultant des usages" should read "toléré par les usages".

77. The CHAIRMAN observed that there was little support for the Iraqi proposal. He concluded that the Committee did not wish to adopt it.

78. It was so decided.

The meeting rose at 6.05 p.m.


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