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CISG
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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

37th meeting

Monday, 7 April 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 and 6) (continued)

Consideration of the Report of the Drafting Committee to the Committee (agenda item 4) (continued)

Articles 32-82 [became CISG article 34 through 88 ] (A/CONF.97/C.1/L.248/Add.2 and Add.3)

34
Article 32 [became CISG article 34 ]

1. The CHAIRMAN invited the First Committee to consider article 32 [became CISG article 34 ], and sought an explanation of the footnote to the English text in document A/CONF.97/C.1/L.248/Add.2.

2. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, explained that two sentences had been added to the text of article 32 [became CISG article 34 ] -- which a number of delegations had considered superfluous in its initial form -- in order to take account of the earlier proposal made in connection with article 35 [became CISG article 37 ], that a provision be included whereby the seller might, before delivery of the goods, cure any lack of conformity in the documents relating thereto.

3. The CHAIRMAN said that the Drafting Committee had acted in accordance with its terms of reference.

4. Article 32 [became CISG article 34 ] was adopted.

35
Article 33 [became CISG article 35 ]

5. Mr. ROGNLlEN (Norway) said that paragraph 3 of article 33 [became CISG article 35 ] referred only to subparagraphs (a) to (d) of paragraph 2, and thus appeared to set them apart from the introductory phrase. According to that phrase there was an exception to the subsequent subparagraphs when otherwise agreed, but any further liability agreed to would fall outside the scope of paragraph 2 and would fall under paragraph 1, to which paragraph 3 did not refer. Paragraph 3 as drafted thus appeared to him to be too restrictive and confusing, and he proposed that it be reworded to refer not merely to subparagraphs (a) to (d) of paragraph 2, but to the paragraph in its entirety.

6. Mr. HJERNER (Sweden) said he opposed the Norwegian amendment which, he thought, involved a change of substance. Paragraph 3 of article 33 [became CISG article 35 ] provided for an exception to subparagraphs (a) to (d) of paragraph 2 by exonerating the seller from liability if, at the time of the conclusion of the contract, the buyer knew or could not have been unaware of the lack of conformity. The introductory phrase of paragraph 2, which provided for express agreement between the parties, should not be linked to paragraph 3, which referred to a simple state of affairs.

7. Mr. LEBEDEV (Union of Soviet Socialist Republics) said he shared the opinion of the representative of Sweden.

8. The CHAIRMAN said that the Committee appeared to prefer to retain article 33 [became CISG article 35 ] in the form submitted by the Drafting Committee.

9. Article 33 [became CISG article 35 ] was adopted.

36-39
Articles 34-37 [became CISG article 36 , CISG article 37 , CISG article 38 and CISG article 39 ]

10. Articles 34-37 [became CISG article 36 , CISG article 37 , CISG article 38 and CISG article 39 ] were adopted.

40
Article 38 [became CISG article 40 ]

11. Mr. SHAFIK (Egypt) said there was an error in the French text of article 38 [became CISG article 40 ], where "frais " in the second line should read "faits".

12. Article 38 [became CISG article 40 ] was adopted.

41, 43
Article 39 [became CISG article 41 and CISG article 43 ]

13. Article 39 [became CISG article 41 and CISG article 43 ] was adopted.

42, 43
Article 40 [became CISG article 42 and CISG article 43 ]

14. Mr. GREGOIRE (France) said that, in the French text of paragraph 2 (a) of the article, the final word "ou" should be deleted, since the introductory phrase "Dans les deux cas suivants" indicated that the two cases were not cumulative in their effect.

15. Mr. ZIEGEL (Canada) proposed the replacement of the word "cases" by the words "a case" in the English text, the deletion of the word "deux" from the French text and the retention of the words "or" and "ou", in order to make it clear that the two subparagraphs were to be taken separately.

16. Article 40 [became CISG article 42 and CISG article 43 ], as amended by the Canadian proposal, was adopted.

43
Article 40 bis [became CISG article 43 ]

17. Article 40 bis [became CISG article 43 ] was adopted.

44
Article 40 ter [became CISG article 44 ]

18. Mr. ROGNLIEN (Norway) said that the words "in accordance with articles 70 to 73" [became CISG article 74 , CISG article 75 , CISG article 76 and CISG article 77 ] might usefully be added after the word "damages" in article 40 ter [became CISG article 44 ].

19. Mr. KRISPIS (Greece) said that such an amendment would call the whole of the text in question.

20. Article 40 ter [became CISG article 44 ], as submitted by the Drafting Committee, was adopted.

45-48
Articles 41-44 [became CISG article 45 , CISG article 46 , CISG article 47 and CISG article 48 ]

21. Articles 41-44 [became CISG article 45 , CISG article 46 , CISG article 47 and CISG article 48 ] were adopted.

49
Article 45 [became CISG article 49 ]

22. Mr. GREGOIRE (France) said that, in the French text of paragraph 2(a) of the article, a comma should be added after the words "en cas de livraison tardive".

23. Article 45 [became CISG article 49 ], amended in accordance with the proposal by the representative of France, was adopted.

50, 51
Articles 46 and 47 [became CISG article 50 and CISG article 51 ]

24. Articles 46 and 47 [became CISG article 50 and CISG article 51 ] were adopted.

52
Article 48 [became CISG article 52 ]

25. Mr. ROGNLIEN (Norway) proposed that the words "by or determinable from the contract" should be added to article 48 [became CISG article 52 ], after the words "the date fixed", to bring it into line with articles 31 and 55 [became CISG article 33 and CISG article 59 ].

26. Mr. ZIEGEL (Canada) said he would prefer to replace the word "fixed" by "agreed", which would cover both cases.

27. Mr. BONELL (Italy) said he agreed with the Norwegian representative and suggested adding the words "provided for in article 31" [became CISG article 33 ].

28. Mr. PLANTARD (France) said he was afraid the innumerable cross-references from one article to another might encumber the text and make the Convention difficult to apply.

29. Mr. HONNOLD (United States of America) supported the proposal by the Norwegian representative.

30. Mr. LEBEDEV (Union of Soviet Socialist Republics) asked whether the Norwegian amendment was designed to cover the three situations for which provision had been made in article 31 [became CISG article 33 ] or only the one contained in subparagraph (a) of the article in question.

31. Mr. ROGNLIEN (Norway) said that his amendment was intended to adjust the wording of article 48 [became CISG article 52 ] to that of articles 31 and 55 [became CISG article 33 and CISG article 59 ] and to prevent the word "date" from being interpreted too restrictively.

32. Mr. NICHOLAS (United Kingdom) said that the Norwegian amendment would alter the substance of the article.

33. The CHAIRMAN noted that the Norwegian amendment had not received enough support.

34. Article 48 [became CISG article 52 ], as submitted by the Drafting Committee, was adopted.

53-63

Articles 49-59 [became CISG article 53 , CISG article 54 , CISG article 55 , CISG article 56, CISG article 57, CISG article 58, CISG article 59 , CISG article 60 , CISG article 61 , CISG article 62 and CISG article 63 ]

35. Articles 49-59 [became CISG article 53 , CISG article 54 , CISG article 55 , CISG article 56, CISG article 57, CISG article 58, CISG article 59 , CISG article 60 , CISG article 61 , CISG article 62 and CISG article 63 ] were adopted.

64
Article 60 [became CISG article 64 ]

36. Mr. ROGNLIEN (Norway) said that, for the sake of clarity, either the words "by the buyer" in article 60(2)(b) [became CISG article 64(2)(b) ] should be deleted, or the word "he" in paragraph (2)(b)(i) should be replaced by the words "the seller".

37. The CHAIRMAN suggested that the word "he" in paragraph (2)(b)(i) should be replaced by the words "the seller".

38. Article 60 [became CISG article 64 ], with the Chairman's amendment, was adopted.

65
Article 61 [became CISG article 65 ]

39. Article 61 [became CISG article 65 ] was adopted.

66
Article 78 [became CISG article 66 ]

40. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, said that the Drafting Committee had changed the order of the different articles, as instructed by the First Committee, but that the original numbering of the articles had been retained, so as to make consideration of the text easier.

41. Article 78 [became CISG article 66 ] was adopted.

67
Article 79 [became CISG article 67 ]

42. Mr. INAAMULLAH (Pakistan) said he was surprised to see that the Drafting Committee had failed to take into consideration his delegation's proposal to add to the first sentence of article 79(1) [became CISG article 67(1) ], after the words "to the first carrier" the words "in accordance with the contract" (A/CONF.97/C.1/L.236), although that proposal had been referred to it by the First Committee.

43. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, said that the Drafting Committee had felt that it was not necessary to make such a distinction.

44. Mr. INAAMULLAH (Pakistan) said he would be willing to accept the word "contractually" instead of the phrase "in accordance with the contract".

45. Mr. HERBER (Federal Republic of Germany) said that the word "contractually" could lead to confusion when used in connection with the handing over of goods. For example, it could be interpreted as meaning that the goods should be in conformity with the specifications in the contract.

46. Mr. HJERNER (Sweden) said that, in some contracts, the place where the goods were to be handed over to the carrier was not stated; that was the case with CIF contracts, where the port of dispatch was not named. The proposal by Pakistan was thus likely to create difficulties.

47. Mr. SHAFIK (Egypt) said he endorsed the comments made by the representative of Pakistan.

48. The CHAIRMAN said that the members of the Committee should trust the Drafting Committee and try not to alter the texts it had prepared except, of course, when they felt the wording was not clear.

49. Article 79 [became CISG article 67 ] was adopted.

50. Mr. INAAMULLAH (Pakistan) asked that note be taken of the fact that the Asian-African Legal Consultative Committee had recommended insertion of the words "in accordance with the contract" after the words "to the first carrier" in article 79 [became CISG article 67 ], which it thought would assist in interpreting the article in question.

68-70
Articles 80-82 [became CISG article 68 , CISG article 69 and CISG article 70 ]

51. Articles 80-82 [became CISG article 68 , CISG article 69 and CISG article 70 ] were adopted.

73
Article 64 [became CISG 73 ]

52. Mr. ROGNLIEN (Norway) said that the Drafting Committee had quite rightly changed the order of the different sections of chapter V. Nevertheless, he wondered whether it might not be better to place the section concerned with damages at the beginning of chapter V, followed by the section relating to exemptions. Next would come the section on anticipatory breach and instalment contracts, followed by the section on the effects of avoidance and, finally, the section on preservation of the goods.

53. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, said that, after protracted discussion the Drafting Committee had concluded that the best solution would be to place the section on anticipatory breach and instalment contracts at the beginning of chapter V, since the provisions on exemption and damages did not come into play until after a breach had taken place.

54. The CHAIRMAN invited the Norwegian representative to submit his proposal to change the order of the different sections of chapter V to the Drafting Committee, which was responsible for decisions of that kind.

55. Mr. ZIEGEL (Canada) said that article 64(2) [became CISG article 73(2) ] was largely based on the initial drafts of articles 62 and 63 [became CISG article 71 and CISG article 72 ]. It might perhaps be useful if the paragraph in question were brought into line with the new articles 62 and 63 [became CISG article 71 and CISG article 72 ] produced by the ad hoc working group. Under those articles a party was entitled to declare the contract avoided only in very specific circumstances, whereas paragraph 2 of the existing article 64 [became CISG article 73 ] laid down no conditions, apart from a requirement that action be taken within a reasonable time.

56. The CHAIRMAN suggested that article 64 [became CISG article 73 ], as adopted by the Drafting Committee, be considered simultaneously with articles 62 and 63 [became CISG article 71 and CISG article 72 ], as proposed by the ad hoc working group.

57. It was so decided.

74
Article 70 [became CISG article 74 ]

58. Article 70 [became CISG article 74 ] was adopted.

75, 76
Articles 71 and 72 [became CISG article 75 and CISG article 76 ]

59. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, said that a terminology problem arose in connection with articles 71 and 72 [became CISG article 75 and CISG article 76 ]. In the former article, the English text of the Convention referred to "contract price", and in the latter, to "price fixed by the contract", whereas the French text of the two articles referred to "prix du contrat" only. The Drafting Committee had therefore left those expressions in articles 71 and 72 [became CISG article 75 and CISG article 76 ] in square brackets, so that the Committee could take a decision on the matter. The Drafting Committee had noted that the choice of one or other of those expressions could affect the interpretation of other provisions in the Convention. For example, the expression "contract price" was consistent with the provisions of article 51 [became CISG article 55 ] on the determination of the price if a contract had been concluded but did not fix the price expressly or impliedly, whereas the expression "price fixed by the contract" would seem to exclude the price determined in accordance with the provisions of that article.

60. Mr. KRISPIS (Greece) thought it would be advisable to use the expression "contract price" in articles 71 and 72 [became CISG article 75 and CISG article 76 ], as otherwise numerous difficulties would arise in the application of the Convention.

61. Mr. LEBEDEV (Union of Soviet Socialist Republics) felt that the expression "price fixed by the contract" should be retained in article 72 [became CISG article 76 ], but that the expression "contract price" should be used in article 71 [became CISG article 75 ] since, otherwise, some countries would be unable to ratify Part II of the Convention dealing with formation of the contract.

62. Mr. SEVÓN (Finland) thought that the use of different expressions in articles 71 and 72 [became CISG article 75 and CISG article 76 ] had been deliberate and that the same expressions should therefore be retained.

63. Mr. PLANTARD (France) said that there was a discrepancy between the original English and French versions of those two articles, since the French version referred to prix du contrat (contract price) only. The Committee should therefore give a definite ruling on the matter.

64. Mr. HONNOLD (United States of America) said he feared that if, in article 72 [became CISG article 76 ], the expression with the narrowest meaning was retained, that is to say, "price fixed by the contract" the innocent party would be unable to claim damages if the price was not expressly stated in the contract. Consequently, the solution proposed by the Finnish representative would run counter to the interests of an innocent party.

65. It would be better to use the same expression in articles 71 and 72 [became CISG article 75 and CISG article 76 ]. While difficulties might arise in some legal systems, it was important that the text of the Convention should be consistent.

66. Mr. BONELL (Italy) endorsed the Finnish reptsentative's remarks, since the use of two different expressions in articles 71 and 72 [became CISG article 75 and CISG article 76 ] had been motivated by substantive reasons. He suggested using the same expressions as in ULIS, where the expression "price fixed by the contract" occurred in [ULIS] article 84, and the expression "contract price" in [ULIS] article 85.

67. Mr. PLANTARD (France) said he would have no objection to adopting the expression "price fixed by the contract" in article 72 [became CISG article 76 ].

68. Article 71 [became CISG article 75 ], with the reference to "contract price", was adopted.

69. Article 72 [became CISG article 76 ], with the reference to "price fixed by the contract", was adopted.

78
Article 73 bis [became CISG article 78 ]

70. Mr. HJERNER (Sweden) considered that the Drafting Committee had made a commendable effort to produce a clear text of article 73 bis [became CISG article 78 ], but that the proposed text differed on some minor points of substance from alternative II adopted by the Committee (A/CONF.97/C.1/L.247). It should be noted that the formula adopted by the Committee was similar to the one decided on by the working group on international bills of exchange. He therefore proposed that paragraph 1 of article 73 bis [became CISG article 78 ] should be modified slightly, so as to bring it more in line with alternative II adopted by the Committee. The paragraph would read as follows:

"If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest thereon at the rate for a normal short-term commercial credit or at another similar appropriate rate prevailing in the main financial centre of the State where the party in default has his place of business or, in case the other party's actual credit costs are higher, at a rate corresponding thereto but not at a rate higher than the rate in the State where he has his place of business, as defined above."

71. Mr. MANTILLA-MOLINA (Mexico) considered the text of article 73 bis [became CISG article 78 ] particularly obscure and feared that businessmen as well as lawyers would have difficulty in understanding it. It would therefore be desirable to adopt a clearer formulation.

72. The CHAIRMAN pointed out that the text of article 73 bis [became CISG article 78 ] was the result of a compromise in the First Committee.

73. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that the Drafting Committee had tried to improve the wording of article 73 bis [became CISG article 78 ] so as to make it clearer. Its members had turned out to have very different ideas on paragraph 1 of that article, which was why the Drafting Committee had not been able to produce a more satisfactory text. Some had felt that, as worded at present, it was incomprehensible. They had nevertheless proposed that it should be kept, maintaining that it was impossible to go into details of banking techniques in the Convention.

74. The CHAIRMAN thought that the only solution would be to keep the Drafting Committee's compromise text, taking into account the amendments proposed by the Swedish delegation.

75. Mr. KHOO (Singapore), Chairman of the Drafting Committee, said that he was sorry about the Swedish representative's criticism of the text submitted by the Drafting Committee, which had endeavoured to introduce the necessary clarifications into the text adopted by the First Committee without changing the substance. It had spent a good deal of time on that difficult task and any ambiguities that might still persist were not its fault. If the Committee or the Conference considered that those ambiguities should be removed, it would be up to them to take the necessary action. But it would be quite pointless to revert to the texts in document A/CONF.97/C.1/L.247.

76. Mr. MANTILLA-MOLINA (Mexico) pressed for an explanation of the Drafting Committee's enigmatic text, which he failed to understand.

77. The CHAIRMAN thought that it would be better not to change the Drafting Committee's text at the present stage of the debate. If there were no objections, he would take it that the Committee wished to keep that text, on the understanding that it might still be subject to drafting improvements.

78. It was so decided.

77
Article 73 [became CISG article 77 ]

79. Article 73 [became CISG article 77 ] was adopted.

79
Article 65 [became CISG article 79 ]

80. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, drew the Committee's attention to a footnote to paragraph 5 of article 65 [became CISG article 79 ] (A/CONF.97/C.l/L.248/Add. 3, p. 3). The Drafting Committee had wondered whether paragraph 5 merely related to the right to claim damages under the Convention, or whether it also referred to the right to do so under the contract. It had finally decided that paragraph 5 should cover both the rights deriving from a contract and those deriving from the Convention.

81. Mr. ROGNLIEN (Norway) said he favoured the solution advocated by the Drafting Committee.

82 The CHAIRMAN thought that it would be unwise to introduce new expressions into the text and proposed that the words "the contract or" should be deleted.

83. It was so decided.

84. Following a question by Mr. SEVÓN (Finland) on the subject of paragraph 1, an exchange of views ensued in which Mr. ZIEGEL (Canada), Mr. ROGNLIEN (Norway), Mr. SHAFIK (Egypt), Mr. HJERNER (Sweden), Mr. PLANTARD (France) and Mr. DABIN (Belgium) took part, on the question of whether the French expression "indépendant de sa volonté" actually corresponded to the words used in the English version, namely, "beyond his control".

85. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, replying to a question by Mr. BONNELL (Italy), explained that the numbering of the paragraphs had not been changed and, in particular, that paragraph 3 had been kept in its original place, on logical grounds.

86. Article 65 [became CISG article 79 ] was adopted.

80
Article 65 bis [became CISG article 80 ]

87. Mr. ROGNLIEN (Norway) asked whether the expression "by his own act or omission" covered the acts and omissions not only of the party concerned but also of persons whom that party might employ in the performance of the contract.

88. After an exchange of views, in which Mr. MASKOW (German Democratic Republic), Mr. MICHIDA (Japan), Rapporteur of the Committee, Mr. KHOO (Singapore), Chairman of the Drafting Committee, and Mr.SHAFIK (Egypt) took part, the CHAIRMAN proposed that the Committee should keep the current wording of article 65 bis [became CISG article 80 ], on the understanding that the expression "by his own act or omission" was unanimously recognized as covering not only the acts or omissions of the party concerned but also those of persons who might be employed by him for the purposes of the performance of the contract.

89. It was so decided.

The meeting was suspended at 11.5O a.m. and resumed at 12.10 p.m.

81-84
Articles 66-69 [became CISG article 81 , CISG article 82 , CISG article 83 and CISG article 84 ]

90. Articles 66-69 [became CISG article 81 , CISG article 82 , CISG article 83 and CISG article 84 ] were adopted.

85-88
Articles 74-77 [became CISG article 85 , CISG article 86 , CISG article 87 and CISG article 88 ]

91. Articles 74-77 [became CISG article 85 , CISG article 86 , CISG article 87 and CISG article 88 ] were adopted.

92. Mr. LEBEDEV (Union of Soviet Socialist Republics) felt he should point out that the term "deterioration" in the first line of article 77(2) [became CISG article 88(2) ] had given rise to varying interpretations in the Drafting Committee. Some members had felt that the term referred only to the physical state of the goods and that the party "bound to preserve the goods" was only bound to ensure their physical preservation. Others had felt that the obligation to ensure the preservation of the goods extended to the commercial interest which they represented and that the party bound to preserve them must accordingly follow the market and see that the goods were sold satisfactorily, as soon, for example, as the price started to fall. Since the difference of interpretation turned upon a point of substance, the Drafting Committee had been unable to make the text more specific in one sense or the other.

93. The CHAIRMAN said that the Drafting Committee had been right not to try to settle a point which had not been raised in Committee. The plenary Conference would perhaps be able to remedy the omission. On behalf of the Committee, he thanked the members of the Drafting Committee for the excellent text they had produced (A/CONF.97/C.1/L.248 and Add.l-3) in frequently difficult circumstances.

71-72
Articles 62 and 63 [became CISG article 71 and CISG article 72 ] (continued)
(A/CONF.97/C.1/L.252, L.253)

94. Mr. GREGOIRE (France), speaking on behalf of the ad hoc working group composed of Argentina, Egypt, Finland, France, the German Democratic Republic, the Federal Republic of Germany, Iraq, Mexico, the Republic of Korea and the United States of America, introduced the amendments to articles 62 and 63 [became CISG article 71 and CISG article 72 ] in documents A/CONF.97/C.1/L.252 and L.253. In the French version of the amendment to article 62 [became CISG article 71 ] (A/CONF.97/C.1/L.252), in the second line of paragraph 1, the archaic formula "lorsqu'il appert" should be replaced by the words "lorsqu'il apparaît".

95. As far as article 62 [became CISG article 71 ] was concerned, the text proposed by the ad hoc working group departed very little from the text submitted by the Drafting Committee, as the group had not reverted to the question whether the facts which created an apparent expectation of non-performance preceded or followed the conclusion of the contract and had taken it that only facts which had existed before the conclusion of the contract and became known afterwards were taken into consideration. That being the assumption, the ad hoc group had been concerned essentially with finding a legal procedure to regulate the recognized right of a party to suspend the performance of the contract when the other party was likely not to fulfil its obligations. His delegation found it difficult to accept that the right should not derive from a decision by a court of law but the right had nevertheless been granted in principle. The ad hoc group's decision had been to limit the scope of that principle by replacing the words "when there are good grounds to conclude", which were regarded as too subjective, by the words "when, after the conclusion of the contract, it appears". In that connection, he wished to point out that in French legal terminology, the expression "il apparaît" had an objective meaning and was synonymous with "il est établi" ("it is established"). Some members of the ad hoc working group, nevertheless, continued to have doubts and would have liked to see the adoption of a stronger term, for example "il est manifeste;" ("it is evident").

96. In regard to article 63 [became CISG article 72 ], the members of the working group had decided unanimously that the declaration of avoidance of the contract should be made subject to the other party being given notice in advance. Some members, however, had wished to delete the words "if time allows" at the beginning of the new paragraph 2.

97. Mr. SAM (Ghana) endorsed the French representative's interpretation of the words "il apparaît" in paragraph 1 of the proposed article 62 [became CISG article 71 ], which should be understood as meaning "il est manifeste". In the circumstances, the corresponding term in the English version, "it appears", was inappropriate and should be replaced by the words "it is clear", which, moreover, the Committee had decided, during the debate on the original Egyptian proposal (A/CONF.97/C.1/L.249), to use in place of the words "it becomes apparent", which had been felt to be ambiguous. His delegation would vote in favour of the text proposed by the ad hoc working group provided the English version used the words "it is clear".

98. Mr. GREGOIRE (France) explained that agreement had been reached in the ad hoc working group on the French formula "il apparaît", which was to be interpreted in the sense he had just noted. At that time, however, the working group had decided to render the French formula "il apparaît" by the English words "it appears".

99. The CHAIRMAN observed that for some years there had been controversy on the question of what situation was envisaged. According to one argument, one of the parties was in a difficult financial position, the other party was unaware of the fact, and it emerged, after the conclusion of the contract, that the first party would be unable to carry it out. According to the other argument, each of the parties was bound to ascertain, before the conclusion of the contract, whether the other party was creditworthy. The delegation of Ghana seemed to infer from the explanations given by the French representative that the proposed text corresponded to the second argument.

100. Mr. GREGOIRE (France) said that the first proposition was the one accepted by the working group. If there was still the slightest doubt in that respect, it would be removed if the article stated: ". . . when, after the conclusion of the contract, it is evident . . .".

101. Mr. BENNETT (Australia) thought that the text proposed by the ad hoc working group for article 62 [became CISG article 71 ] (A/CONF.97/C.1/L.252) was more objective and read better than the text proposed by the Drafting Committee. However, his delegation was not clear what weight should be given in the new wording proposed for paragraph 1 of that article, to the proviso expressed by the words "if it is reasonable to do so", which seemed to be independent of the threat of non-performance of the contract. Moreover, with the new wording it would need to be apparent that the non-performance of the contract would result from a matter mentioned in subparagraph (a) or (b). That was different from the position under the UNCITRAL text. In that text such matters related only to the grounds for concluding that there would be non-performance, which could result from any cause. Possibly all that was needed was to make some drafting changes in the text proposed by the working group.

102. Mr. KRISPIS (Greece) said he was prepared to support the proposals of the ad hoc working group for articles 62 and 63 [became CISG article 71 and CISG article 72 ] as they did not depart appreciably from the text proposed by the Drafting Committee. However in order to meet the civil law lawyer's constant desire to distinguish between temporal and conditional clauses the word "if" should be substituted for the word "when" in the second line of paragraph 1 of the text proposed by the working group for article 62 [became CISG article 71 ].

103. Mr. HERBER (Federal Republic of Germany) supported the texts proposed by the working group for articles 62 and 63 [became CISG article 71 and CISG article 72 ] without any of the amendments suggested in the course of the discussion by the representative of Ghana and the representative of Australia.

104. Mr. HONNOLD (United States of America) remarked that although articles 62 and 63 [became CISG article 71 and CISG article 72 ] were certainly closely linked they had different functions. Article 62 [became CISG article 71 ] authorized suspension of the performance of the contract -- but not a declaration of avoidance of contract -- if one party gave the other grounds for assuming that it would not be carried out, while article 63 [became CISG article 72 ] allowed the contract to be avoided as soon as it became clear that the other party would not perform it. If an attempt was to be made to amend article 62 [became CISG article 71 ] so as to make it applicable to the same situation as article 63 [became CISG article 72 ], the whole relationship between the two provisions would become meaningless and the structure would collapse. The proposals by the working group should therefore be adopted without any change.

105. Mr. ROGNLIEN (Norway) was of the same opinion as the United States representative and supported the proposals of the working group. Article 62 [became CISG article 71 ] was concerned with the ability to suspend performance of the contract whereas article 63 [became CISG article 72 ] allowed the contract to be avoided. If it was agreed to use the words "it is clear" in the English version of article 62 [became CISG article 71 ] as suggested by the representative of Ghana there would no longer be any difference between it and article 63 [became CISG article 72 ]. But it must be easier for one of the parties to suspend performance of his obligations than to declare the contract avoided.

106. Mr. PLANTARD (France) noted that two points in a very important question were still unclear. The first on which he did not intend to dwell, concerned the word "appears". For some, that simply meant that the fact was apparent whereas for others it implied that it was evident. The second ambiguity concerned the moment at which the deficiency became apparent. But whether it did so before or after the conclusion of the contract was of little importance, and there was unanimous agreement on that point. Consequently, all that was necessary to dispel the confusion which all the members of the Committee had complained about was to delete the words "after the conclusion of the contract".

107. The CHAIRMAN suggested that the discussion should be continued at the following meeting.

108. It was so agreed.

The meeting rose at 1 p.m.


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