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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

28th meeting

Friday, 28 March 1980, at 3 p.m.

Chairman: Mr. LOEWE (Austria)

The meeting was called to order at 3.05 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)

79
Article 65 [became CISG article 79 ] (continued)Z
(A/CONF.97/C.1/L.190, L.191/ Rev.1, L.208, L.217)

1. Mr. MASKOW (German Democratic Republic) introduced his delegation's amendment to article 65(3) [became CISG article 79(3) ] (A/CONF.97/C.1/L.217). The aim was to bring paragraph 3 into line with paragraph 1, which covered both the impediment and its consequences.

2. The CHAIRMAN suggested that, as the amendment was simply a drafting change, the paragraph should be referred to the Drafting Committee.

3. It was so decided.

4. The CHAIRMAN drew the Committee's attention to the amendments to paragraph 4 proposed by Norway (A/CONF.97/C.1/L.191/Rev.1) and Finland (A/CONF.97/C.1/L.190), which were very close to one another. He asked the Norwegian representative whether his amendment was purely a matter of drafting.

5. Mr. ROGNLIEN (Norway) thought that it was a matter of substance and not merely of form. The point was that in its present wording, article 65(4) [became CISG article 79(4) ] introduced an exception to the general rule set forth in article 25 [became CISG article 27 ] whereby the sender of a communication did not bear the risk of delay or error in transmission or more precisely: the delay or error in transmission did not deprive the sender of his right to rely on the communication. Under the terms of paragraph 4 as it now stood, the party that was unable to perform because of an impediment was the one which bore the risk. The same party was liable for the damages resulting from non-receipt of notification by the other party. In his delegation's opinion it would be wrong for a party that had notified the other party, by a means appropriate in the circumstances, of an impediment to the performance of his obligations to be held responsible for a delay or an error in transmission. It would, in particular, be wrong in cases where the delay was due to force majeure. It would, therefore, be better to apply the general rule of article 25 [became CISG article 27 ] to article 65 [became CISG article 79 ]. The situation would have been the opposite if the notice was intended to create obligations for the other party.

6. The CHAIRMAN wondered whether amendment A/CONF.97/C.1/L.191/Rev.l was a good solution. The Norwegian representative was proposing to overturn the rule in article 65(4) [became CISG article 79(4) ] on the grounds that the impediment preventing performance of the obligation was often also an obstacle to giving notice. Nevertheless it was not very clear why the risks involved in transmission should then be borne by the addressee, particularly since with serious events such as the outbreak of war, the existence of the impediment would be well known. Perhaps there should be a different arrangement, by which for example there would be an exception in cases of force majeure to the rule that the party who had been unable to perform his obligation should notify the other party of the impediment.

7. Mr. HONNOLD (United States of America) was in favour of amending paragraph 4 for the reasons explained by the Norwegian representative. The abrogation of the despatch principle was not meant to make the addressee bear the risks of transmission but to ensure that the non-performing party was not held liable if he encountered serious transmission problems.

8. Mr. KLINGSPORN (Federal Republic of Germany) regretted that he could not support the Norwegian proposal, as it would result in the addressee being made to bear the risks of transmission. The Committee should consider various cases which might arise. If the impediment to a party's performance of his obligation was not such as to make it impossible to give notice of that impediment, e.g., when the impediment arose from national legislation placing an embargo on the export of the goods covered by the contract, it was right for the risk of delay or error in transmission to be borne by the seller. If the impediment affected both performance and notification, as in the case of a breakdown in communications or the postal service, then under article 65(1) [became CISG article 79(1) ] the seller would be released from all his obligations, including the obligation to notify the other party of the impediment. There was thus no need to amend paragraph 4 at all.

9. Mr. MASKOW (German Democratic Republic) was in favour of the Norwegian proposal and thought that article 25 [became CISG article 27 ] should govern the notice referred to in paragraph 4.

10. Mr. REISHOFER (Austria) was against the Norwegian proposal. The exception made to article 25 [became CISG article 27 ] in article 65(4) [became CISG article 79(4) ] was designed to protect innocent parties and was totally justified, given the circumstances in which an impediment usually arose. In the case of force majeure, to which the Norwegian representative had referred, it would be better to make an exception to the rule requiring the non-performing party to notify the other party of the impediment.

11. Mr. OSAH (Nigeria) supported the Norwegian proposal, also being of the opinion that the rule in article 25 [became CISG article 27 ] was the one which should apply.

12. Mr. FOKKEMA (Netherlands) considered that the argument put forward by the representative of the Federal Republic of Germany, to the effect that a party unable to perform his obligation was exempted from his responsibilities under article 65(1) [became CISG article 79(1) ] in cases where, through circumstances beyond his control, the notification he was required to give was not received by the other party, demonstrated the justice of the Norwegian proposal, the aim of which was to settle the question of liability.

13. Mr. CUKER (Czechoslovakia) said that the Norwegian proposal was ambiguous. In the final phrase it was stated that the party who had to notify the other party of an impediment to performance of his obligation was liable for damages as a result of failure to perform. He wondered whether it was to be taken that the party was held liable for damages resulting from non-performance or solely for damages resulting from the failure to notify.

14. Mr. WIDMER (Switzerland) pointed out that the same ambiguity already existed in the French text on the existing paragraph 4. If one referred to the commentary on article 65 [became CISG article 79 ], it was clear that only the damages resulting from the failure to notify were meant. It would therefore be better to bring the French text into line with the English version and that was simply a matter of drafting.

15. The CHAIRMAN put to the vote the Norwegian amendment to article 65(4) [became CISG article 79(4) ] (A/CONF.97/C.1/L.191/Rev.1).

16. The amendment was rejected by 17 votes to 14.

17. The CHAIRMAN invited members to consider the amendment to paragraph 5 proposed by the Federal Republic of Germany (A/CONF.97/C.1/L.208).

18. Mr. KLINGSPORN (Federal Republic of Germany) said that under the existing paragraph 5 a party could require another party whom an impediment had temporarily made unable to perform to perform his obligation when the impediment ceased. The rule in question should be amplified by stating that in the event of a permanent impediment, the exemption provided for in article 65 [became CISG article 79 ] prevented the other party from requiring performance of the obligation. That was the aim of the proposal by his delegation, which also included a drafting amendment changing the order of the paragraphs.

19. Mr. REISHOFER (Austria) supported the amendment by the Federal Republic of Germany to make article 65 [became CISG article 79 ] prevent one party, in the event of a permanent impediment, from exercising his right to demand performance of the obligation by the other party. In document A/CONF.97/C.1/L.191/Rev.1, Norway had submitted a very similar proposal, which was also acceptable to his delegation.

20. The CHAIRMAN asked the representative of Norway whether he considered his proposal was the same as the one by the Federal Republic of Germany.

21. Mr. ROGNLIEN (Norway) said that his proposal had the same aim as the one by the Federal Republic of Germany, although it was slightly different in form.

22. Mr. LEBEDEV (Union of Soviet Socialist Republics) was unable to support either the Norwegian proposal (A/CONF.97/C.1/L.191/Rev.l) or the one by the Federal Republic of Germany (A/CONF.97/C.1/L.208). The Norwegian amendment to article 65(5) [became CISG article 79(5) ], which would permit either of the parties, including the one whom an impediment had made unable to perform his obligation, to declare the contract avoided, was based on the same logic as had led the Norwegian delegation earlier to propose its amendment to article 65(3) [became CISG article 79(3) ]. However, the Committee had decided to keep the existing wording of paragraph 3. It could not therefore adopt the Norwegian proposal on paragraph 5.

23. The amendment proposed by the Federal Republic of Germany did not appear to be justified from the substantive point of view. It might have very dangerous consequences. For instance, if a seller who had delivered a part of the goods was unable, owing to force majeure, to deliver the rest, or if the buyer refused to pay for the goods already delivered, without, however, avoiding the contract, the seller would be deprived, under the proposals by the Federal Republic of Germany and Norway, of the right to require payment, which was unacceptable.

24. Mr. HJERNER (Sweden) emphasized the delicate and abstract nature of the problem dealt with in article 65(5) [became CISG article 79(5) ]. He reminded members that the text adopted by UNCITRAL at its last meeting had represented a fragile compromise. Any change in that text would be liable to disturb its balance in an unpredictable manner. The amendment proposed by the Federal Republic of Germany was not just a clarification, but involved a substantive issue. The Norwegian amendment was different in form and had still wider implications.

25. The question of whether exemption should relate not only to damages but also to the obligation to perform had been debated at length in UNCITRAL, and it had been decided not to include any provisions on the latter aspect. If a party was exempted from performance it would not be required to pay damages. As far as the obligation to perform was concerned, no problem arose in practice, where there was a real inability to perform. But if the obligation to perform was abrogated, a party would no longer be held liable for any other consequences, whereas there might be contractual remedies connected with the obligation to perform which were not mentioned in the Convention; if the provisions proposed in the Norwegian amendment were to be applied, those remedies could not be invoked. Furthermore, although a party which was unable to perform owing to an impediment was not required to pay damages, it should not for that reason be content to wait until the impediment had disappeared. It had a duty to make all possible efforts to overcome the impediment and its consequences and to perform the contract.

26. Mr. PLANTARD (France) agreed with the Swedish representative. Article 65 [became CISG article 79 ] provided for cases where performance was impossible; where that was so, there was little sense in referring to the case where a party might wish to force the other party to perform, since performance was impossible by definition. He was opposed to the Norwegian proposal, which might create confusion and difficulties of interpretation.

27. Mr. ROGNLIEN (Norway) said he failed to see the difficulties which, according to some delegations, would arise from his delegation's amendment. The amendment did not mention all the possible or existing remedies, but merely cited some which were unaffected by article 65 [became CISG article 79 ], see the initial words in the amended paragraph: "Nothing in this article prevents . . .". The right to avoid a contract was evoked only in accordance with the Convention. A party who was unable to perform owing to an impediment could not avoid the contract, unless the other party had committed a fundamental breach, which was not a very realistic situation. The most realistic situation would be where a party who did not receive the goods was entitled to avoid the contract, even though the other party's failure to perform was due to an impediment.

28. Delegations which favoured the existing text maintained that if performance was impossible, the other party could not require it. But article 65 [became CISG article 79 ] covered not only physical impossibility to perform, but also impossibility to perform for external economic reasons, for example. If the existing wording was interpreted literally, the other party could, in such cases, require performance. Obviously, the Convention could not resolve all the problems that might arise, but it must be recognized that the existing text of paragraph 5 was unsatisfactory.

29. Mr. VINDING KRUSE (Denmark) said that article 65 [became CISG article 79 ] dealt with very complex problems and applied to widely varying situations. Any amendments to that article, particularly paragraph 5, should therefore be considered with the utmost caution, for they might have unforeseen consequences. He was not in favour of introducing the word "performance" into that paragraph. Consequently, he was unable to support either the amendment by the Federal Republic of Germany or that by Norway.

30. Mr. FELTHAM (United Kingdom) said he was strongly in favour of the amendment by the Federal Republic of Germany. It would be inadvisable to give a party the right to require performance if the other party was unable to perform owing to an impediment. In the case of partial delivery referred to by the representative of the Soviet Union, the buyer would obviously have to pay the price of the goods delivered; the amendment of the Federal Republic of Germany contained nothing that would give him special protection enabling him to evade that obligation.

31. Mr. FOKKEMA (Netherlands) said that he had not been convinced by the objections raised and that he supported the amendments (A/CONF.97/C.1/L.191/Rev.l, L.208). From the drafting point of view, he preferred the Norwegian amendment. He, too, thought that the problem raised by the representative of the Soviet Union could easily be solved. An impediment could relate to only a fraction of a party's obligations; the article would then apply only to that fraction.

32. He acknowledged that a party must not be exempted from his obligation to perform, even if there was an impediment, but the amendments would not have that effect. If the impediment was temporary, the obligation to perform continued and re-emerged as soon as the impediment had disappeared. It was also clear that a party which was unable to perform owing to an impediment must do all in its power to overcome that impediment, failing which it would be liable for damages.

33. The question of contractual remedies arose more in connection with the amendment by the Federal Republic of Germany. In general, it would seem that the Convention could not regulate that aspect, for the question of the interpretation of the contract would always arise. If the parties had agreed to contractual remedies outside the framework of the Convention, those remedies would likewise become ineffective in cases of force majeure.

34. Mr. REISHOFER (Austria) said he was in favour of amendments A/CONF.97/C.1/L.191/Rev.l and L.208, whose opponents had not argued very convincingly. No one denied that performance of an obligation could not reasonably be demanded in the cases of impediment envisaged in article 65 [became CISG article 79 ]. Why, then, not say so unambiguously, as in the amendment by the Federal Republic of Germany? In cases of partial performance, it would be reasonable to interpret the article as not forbidding a party to exercise any of its rights other than the right to obtain damages or the right to require performance of the rest of the contract.

35. Mr. MASKOW (German Democratic Republic ) said he was unable to support either of the amendments under consideration. The obligation to perform did not disappear just because there was an impediment. The proposed texts were not clear on that point.

36. Mr. HJERNER (Sweden) said that a distinction must be drawn between cases where a party was not required to pay damages because it would be unfair to regard it as responsible for the situation and cases where a party could not perform its obligations, owing to an impediment, but the obligation to perform remained. He would press for the existing text of paragraph 5 to be kept.

37. Mr. KLINGSPORN (Federal Republic of Germany) said it was clear from article 65(1) [became CISG article 79(1) ] that a party which had an impediment had an obligation to do all it could to overcome that impediment. If it did not do so, it would not be exempted from its liabilities. Only in so far as it was impossible for a party to overcome the impediment should the exercise of its right to claim damages and to require performance be excluded.

38. Mr. HONNOLD (United States of America) considered that the clarification proposed by the Federal Republic of Germany in article 65(5) [became CISG article 79(5) ] in no way altered or diminished the obligation of a party which had an impediment to endeavour to overcome that impediment. It had been said that if one party had an impediment and the other party was unable to require performance, that would undermine the obligation to perform. But that argument could only be upheld by disregarding all the remedies provided for in articles 42 and 58 [became CISG article 46 and CISG article 62 ], involving application to a court to require performance. Nevertheless, a party should not be able to get a court to order someone to do the impossible. That showed how much the present wording of paragraph 5 left to be desired; it was far too strong, as the expression "any right" covered the right to require performance. Paragraph 5 should be as reasonable as possible. The very slight change proposed by the Federal Republic of Germany would make the text consistent and prevent abuse.

39. Mr. MATHANJUKI (Kenya) supported the Norwegian proposal. It should be stated in the Convention that if a party had an impediment, the other party might avoid the contract, which would enable it, for example, to obtain substitute goods. The present text of paragraph 5 was not sufficiently clear.

40. Mr. ROGNLIEN (Norway), replying to a question by the CHAIRMAN, said that he would like his country's proposal and the proposal by the Federal Republic of Germany to be put to the vote separately.

41. The CHAIRMAN put the Norwegian amendment to article 65(5) [became CISG article 79(5) ] (A/CONF.97/C.1/L.191/Rev.l) to the vote.

42. The amendment was rejected by 22 votes to 13.

43. The CHAIRMAN put the amendment by the Federal Republic of Germany to article 65(5) [became CISG article 79(5) ] (A/CONF.97/C.1/L.208) to the vote.

44. The amendment was rejected by 19 votes to 15.

45. Mr. MASKOW (German Democratic Republic) said that his delegation's amendment to article 65(5) [became CISG article 79(5) ] (A/CONF.97/C.1/L.217) was designed to make it clear that where a party availed itself of the exemption provided for in article 65 [became CISG article 79 ], not only could the other party not exercise any right to claim damages, but it could also not claim any penalties or liquidated damages provided for in the contract. If that was not clearly stated, cases of exemption in respect of damages could be governed by the Convention, while those in respect of liquidated damages or penalties provided for in the contract would come under municipal law, which would be inconvenient. He wished to make it clear that his proposal in no way raised the question of the validity of clauses on penalties or liquidated damages, that question being excluded from the sphere of application of the Convention by article 4(a) [became CISG article 4(a) ].

46. Mr. VINDING KRUSE (Denmark) said that he would have considerable hesitation in supporting that proposal, because article 65(5) [became CISG article 79(5) ] referred only to rights under the Convention, which sharply delimited the scope of the provisions. Moreover, penalties and liquidated damages related to different factors from damages. The contract might even stipulate that liquidated damages were due even where one of the parties was able to avail itself of the exemption provided for in article 65 [became CISG article 79 ]. In other words, the proposal by the German Democratic Republic would have the effect of regulating the application of contractual provisions with which the Convention, by virtue of article 4 [became CISG article 4 ], was not concerned.

47. Mr. ZIEGEL (Canada) was of the same opinion. The principle underlying the entire Convention was that the clauses of the contract prevailed over the provisions of the Convention itself. The proposal by the German Democratic Republic infringed that fundamental principle. If the contract contained a clause on liquidated damages, it would be for the national courts to decide whether the parties had intended that clause to apply regardless of whether there had been an impediment to performance. The clauses adopted by the parties should not be subject to a provision which would have the effect of setting them aside, as would happen if the proposal by the German Democratic Republic were adopted.

48. The CHAIRMAN said he noted that the proposal by the delegation of the German Democratic Republic had received no support. If there were no objections, he would take it that the Committee wished to reject it.

49. It was so decided.

80
New article 65 bis [became CISG article 80 ]
(A/CONF.97/C.1/L.217)

50. Mr. MASKOW (German Democratic Republic) said that article 65 [became CISG article 79 ] covered the case in which one of the parties was unable to perform any of his obligations because of an impediment beyond his control. In his view, account should also be taken of the case in which the failure to perform could be imputed to the act or omission of the other party. In such a case, the second party should not be empowered to exercise any of his rights under the Convention. Such was the purpose of the new article 65 bis [became CISG article 80 ] proposed by his delegation (A/CONF.97/C.1/L.217).

51. Mr. BENNETT (Australia) said that the provision in question was far too broad. By providing that neither party "may exercise any right under this Convention", it left nothing at all of the rights and obligations under the Convention. That was not the right way to solve the problem brought up by the representative of the German Democratic Republic. It would be better to deal with the problem in particular provisions. Moreover, the formula "if he has caused . . . the failure to perform" could give rise to difficulties in its application.

52. Mr. LEBEDEV (Union of Soviet Socialist Republics) said he thought that the idea underlying the proposal by the delegation of the German Democratic Republic was an extremely important one, since it related to the liabilities of the parties in the event of failure to perform and because that problem arose in connection with a number of provisions and previous proposals. If the members of the Committee accepted the basic idea of the proposal -- an idea which was very well-founded and which could usefully appear in the Convention -- namely, that if one of the parties by his own act or omission caused the failure to perform of the other party, the first party could not, in such a case, exercise his rights under the Convention, the Committee could then consider the problem of the form the provision should take, with due regard inter alia for the comments by the Australian representative.

53. Mr. HJERNER (Sweden) said that the delegation of the German Democratic Republic had been quite right to draw the Committee's attention to a very important principle, which would, however, be more appropriately stated at the point where the Convention defined breach. However that might be, he agreed with the representatives of Australia and the Soviet Union that the provision should be worded more clearly. It might perhaps read: "A party may not rely on the failure of another party to perform if by his own act or omission he has caused that failure".

54. Mr. BOGGIANO (Argentina) said he too considered that the principle raised by the delegation of the German Democratic Republic was an important one and should be spelt out in the Convention. Nevertheless, the formula used in the proposal by the delegation of the German Democratic Republic was too broad and the Committee should take no decision until it had a revised wording before it.

55. Mr. WIDMER (Switzerland) said he endorsed all the comments which had been made concerning the importance off the principle in question. That was precisely why he was opposed to the proposal by the delegation of the German Democratic Republic. The principle was so important that, once it was stated it all, it would have to be mentioned in every article of the Convention. However, the principle had been set out once and for all in article 6 [became CISG article 7 ]. By virtue of the principle of good faith stated in article 6 [became CISG article 7 ], a party could not take advantage of a failure of his own which impeded the other party from performing his obligations.

56. Mr. BONELL (Italy) said that he thought it would be desirable to refer to the principle of good faith not only at the time of the performance of the contract but also at the time of its formation. The proposal by the delegation of the German Democratic Republic covered only a portion of performance, but it was nevertheless important to stress, if only at that point in the Convention, that rights were not to be abused. His view was the opposite of, that expressed by the representative of Switzerland: article 6 [became CISG article 7 ] set forth the principle of good faith in such a general way that it was extremely vague, and it would be useful to include an explicit example of what the principle meant.

57. Mr. ZIEGEL (Canada) said that he fully endorsed the comments by the representative of Switzerland. The principle underlying the proposal by the German Democratic Republic was, of course, perfectly justified, but there was no reason to refer to it at that specific place in the Convention. For that matter, it was inconceivable that any court or arbitrator should come to a conclusion at variance with the provision proposed by the delegation of the German Democratic Republic. It would be better to refrain in the Convention from stating the obvious.

58. Mr. VINDING KRUSE (Denmark) said he was not at all certain that article 6 [became CISG article 7 ] covered the basic principle raised by the representative of the German Democratic Republic, since there was a danger that the principle of good faith might be interpreted differently from country to country. The absence of any provision covering that point was a genuine gap in the Convention. Nevertheless, since it was obviously impossible to refer to the proposed rule in all the articles to which it applied, and since the proposed provision covered only one aspect of the problem, the delegation of the German Democratic Republic might, perhaps, revise its proposal in the light of article 73 [became CISG article 77 ] on the reduction of damages, and submit it in the form of an amendment to article 73 [became CISG article 77 ].

59. Mr. FOKKEMA (Netherlands) said he thought that the amendment proposed by the delegation of the German Democratic Republic was a judicious one. There was, in fact, a gap in the Convention, since the good-faith provision, which was drafted in a restrictive way, did not cover the situation under consideration. Nevertheless, it would be useful if the delegation of the German Democratic Republic were to reword the new article it was proposing, since it would be better to refer to the liability of a party rather than the fact that he had caused the failure of the other party to perform his obligations, the concept of "cause" being far too broad. The new article 65 bis [became CISG article 80 ] could be worded to read: "A party cannot rely on the failure by the other party to perform his obligations when he is himself responsible for that failure".

60. Mr. ALKIN (Ireland) said he was unable to support the amendment submitted by the delegation of the German Democratic Republic because, in his view, the rule to which it referred was the basic principle underlying the whole Convention.

61. Mr. POPESCU (Romania) said that the proposed new article supplied an excellent illustration of the concept of good faith in commercial contracts.

62. Mr. MASKOW (German Democratic Republic) said that he intended to reformulate draft article 65bis [became CISG article 80 ], with due regard for the comments made by the representatives of Sweden and the Netherlands, and to resubmit it later in its revised form. The new article could, perhaps, be placed after article 23 [became CISG article 25 ] but not after article 73 [became CISG article 77 ].

63. Mr. ZIEGEL (Canada) said he wished to stress that, in his delegation's opinion, article 65 [became CISG article 79 ] did not cover the case in which there was only a partial failure to perform an obligation. Thus, for instance, if a portion of the goods had been destroyed, the contract would remain valid for the other portion which had not been affected. The fact that it was not possible to perform part of the contract did not necessarily involve complete failure to perform the contract.

64. The CHAIRMAN pointed out that the Convention contained a provision whereby if partial performance was of no interest to the buyer, the contract became completely void. He invited the representative of Canada to submit an amendment to the plenary Conference, if he so desired.

Title of section III of chapter IV

(A/CONF.97/C.1/L.191)

65. Mr. ROGNLIEN (Norway) said that his delegation was proposing that the title of the section should be amended as indicated in document A/CONF.97/C.1/L.191 because articles 67 and 68 of the draft Convention [became CISG article 82 and CISG article 83 ] related not only to the effects of avoidance but also to the loss of the right to require delivery of substitute goods in certain cases where restitution of goods received was impossible.

66. The Norwegian amendment to the title of section III of chapter IV (A/CONF.97/C.1/L.191) was adopted.

81
Article 66 [became CISG article 81 ]
(A/CONF.97/C.1/L.192)

67. The CHAIRMAN said that no amendment had been submitted to paragraphs 1 and 2 of article 66 [became CISG article 81 ]. He thus invited the members of the Committee to consider the Norwegian proposal that a new paragraph 3 should be added to that article (A/CONF.97/C.1/L.192).

68. Mr. ROGNLIEN (Norway) said that the idea of concurrent action stated in article 66(2) [became CISG article 81(2) ] with respect to restitution should also apply where there was a delivery of substitute goods.

69. Mr. MASKOW (German Democratic Republic) said that he was opposed to the inclusion of that general principle in the Convention. In any case, it was rare in commercial practice to return the goods that had first been received when substitute goods were delivered.

70. Mr. HERBER (Federal Republic of Germany) said he thought that the Norwegian amendment was an acceptable one. Nevertheless, if that new paragraph was adopted, it would be better to place it after article 42 [became CISG article 46 ], which dealt with substitute goods.

71. Mr. HJERNER (Sweden) said that the new paragraph would usefully complement paragraphs 1 and 2 of article 66 [became CISG article 81 ]. Its wording appeared to be quite satisfactory.

72. Mr. HONNOLD (United States of America) said he did not see how the Norwegian proposal would work in practice. There were procedures for the exchange of goods for the price, as by sight draft with bill of lading, but there was no readily applicable system for the exchange of rejected goods against substitute goods. The Committee was in danger of creating machinery which would be very difficult to operate. If one of the parties was in default, there was no need to include special and unusual measures to protect him.

73. The CHAIRMAN put the Norwegian amendment (A/CONF.97/C.1/L.192) to the vote.

74. The amendment was rejected.

82
Article 67 [became CISG article 82 ]

75. No amendment having been submitted to article 67 [became CISG article 82 ], it was adopted without change.

83
Article 68 [became CISG article 83 ]

76. No amendment having been submitted to article 68 [became CISG article 83 ], it was adopted without change.

84
Article 69 [became CISG article 84 ]
(A/CONF.97/C.1/L.225, L.226 and L.226/Rev.1)

77. The CHAIRMAN, having noted that article 69 [became CISG article 84 ] raised the question of the interest which the seller, in the event of restitution, was bound to refund to the buyer over and above the actual price, suggested that the Committee might consider the amendments to article 69 [became CISG article 84 ] at the same time as the other amendments regarding provisions on the fixing of a rate of interest.

78. Mr. BONELL (Italy) said that, since paragraph 1 of article 69 [became CISG article 84 ] was the counterpart of the rule concerning the buyer set forth in paragraph 2, there was no reason why it should not be considered separately.

79. Mr. MICHIDA (Japan) said he fully endorsed the Chairman's suggestion.

80. The CHAIRMAN said that, if there was no objection, he would take it that the Committee wished to defer its consideration of article 69 [became CISG article 84 ] to the following meeting.

81. It was so decided.

The meeting rose at 5.55 p.m.


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