art23-35.html

ARTICLE 23 [became CISG article 25 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 23 [became CISG article 25 ]

"A breach committed by one of the parties is fundamental if it results in substantial detriment to the other party unless the party in breach did not foresee and had no reason to foresee such result."

B. Amendments

2. Amendments were submitted to article 23 [became CISG article 25 ] by the Federal Republic of Germany (A/CONF.97/C.1/L.63), Czechoslovakia (A/CONF.97/C.1/L.81), Pakistan (A/CONF.97/C.1/L.99), the United Kingdom (A/CONF.97/C.1/L.104), Egypt (A/CONF.97/C.1/L.106), Turkey (A/CONF.97/C.1/L.121) and India (A/CONF.97/C.1/L.126;).

3. These amendments were to the following effect:

(i) Federal Republic of Germany (A/CONF.97/C.1/L.63):

Article 23 [became CISG article 25 ] should be phrased as follows:

"A breach committed by one of the parties is fundamental if, having regard to all express and implied terms of the contract, the breach results in substantial detriment to the other party unless the party in breach did not foresee and had no reason to foresee such result. "

[Referred to ad hoc working group: see Consideration, 5, below.]

(ii) Czechoslovakia (A/CONF.97/C.l/L.81):

Replace the existing text by the following:

"A breach of contract is fundamental if the party in breach knew or ought to have known, in the light of the reasons for the conclusion of the contract, or any information disclosed at any time before or at the conclusion of the contract, that the other party would not be interested in performance in case of such a breach."

[Rejected: see Consideration, 5, below.]

(iii) Pakistan (A/CONF.97/C.1/L.99):

The words "if it results in substantial detriment to the other party" may be replaced by the words "if it results in such detriment to the other party as would basically change the terms of the transaction".

[Referred to ad hoc working group: see Consideration, 5, below.]

(iv) United Kingdom (A/CONF.97/C.1/L.104):

Revise article 23 [became CISG article 25 ] to read as follows:

"A breach committed by one of the parties is fundamental if it results in substantial detriment to the other party unless at the time when the contract was concluded the party in breach did not foresee and had no reason to foresee such a result. A breach does not result in substantial detriment to the other party if damages would be an adequate remedy for him."

[Withdrawn: see Consideration, 6, below.]

(v) Egypt (A/CONF.97/C.1/L.106):

Amend article 23 [became CISG article 25 ] to read as follows:

"A breach committed by one of the parties is fundamental if it results in substantial detriment to the other party unless the party in breach proves that he did not foresee such a result and that a reasonable person of the same kind in the same circumstances would not have foreseen it."

[Adopted as orally amended: see Consideration, 5, below.]

(vi) Turkey (A/CONF.97/C.1/L.121):

Insert after the words "A breach" the words "of the contract".

[Referred to the Drafting Committee: see Consideration, 6, below.]

(vii) India (A/CONF.97/C.1/L.126):

Insert after the words "had no reason" in the third line of article 23 [became CISG article 25 ] the words "as a reasonable person".

[Referred to the Drafting Committee: see Consideration, 6, below.]

Proceedings in the First Committee

(i) Meetings

4. The First Committee considered the article at its 12th, 13th and 18th meetings on 19 and 21 March 1980.

(ii) Consideration

5. At the 12th meeting, the amendment by Czechoslovakia (A/CONF.97/C.1/L.81) was rejected by 9 votes in favour and 24 against. The amendment by Egypt (A/CONF.97/C.1/L.106), as orally amended by the deletion of the words "proves that he", was adopted by 26 votes in favour and 14 against, and referred to the Drafting Committee. The amendments by the Federal Republic of Germany (A/CONF.97/C.1/L.63) and Pakistan (A/CONF.97/C.1/L.99) were referred to an ad hoc working group consisting of the representatives of Argentina, Czechoslovakia, Germany, Federal Republic of, Ghana, Hungary, Norway, Pakistan, Romania and Spain for the purpose of drafting a text reflecting the ideas contained in these amendments.

6. At the 13th meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.104) was withdrawn, and the amendments by Turkey (A/CONF.97/C.1/L.121) and India (A/CONF.97/C.1/L.126) were referred to the Drafting Committee.

7. At the 18th meeting, the ad hoc working group, with the exception of Hungary, submitted the following text (A/CONF.97/C.1/L.176).

"A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as will substantially impair his expectations under the contract, unless the party in breach did not foresee and had no reason to foresee such a result."

8. The text of the ad hoc working group was adopted by 22 votes in favour and 18 against, and together with the amendment by Egypt (A/CONF.97/C.1/L.106) as orally amended, referred to the Drafting Committee.

ARTICLE 24 [became CISG article 26 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 24 [became CISG article 26 ] "A declaration of avoidance of the contract is effective only if made by notice to the other party."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 24 [became CISG article 26 ] by Norway (A/CONF.97/C.1/L.100).

3. The amendment was to the following effect:

Norway (A/C0NF.97/C.1/L.100):

Replace the word "made" by the word "given".

[Referred to Drafting Committee: see Consideration, 5, below]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 24 [became CISG article 26 ] at its 13th meeting on 19th March 1980.

(ii) Consideration

5. At the 13th meeting, the amendment by Norway (A/CONF.97/C.1/L.100) was referred to the Drafting Committee.

ARTICLE 25 [became CISG article 27 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 25 [became CISG article 27 ]

"Unless otherwise expressly provided in Part III of this Convention, if any notice, request or other communication is given by a party in accordance with Part III and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 25 [became CISG article 27 ] by the Federal Republic of Germany (A/CONF.97/C.1/L.65) and the German Democratic Republic (A/CONF.97/C.1/L.123).

3. These amendments were to the following effect:

(i) Federal Republic of Germany (A/CONF.97/C.1/L.65):

It is suggested that article 25 [became CISG article 27 ] be inserted in Part I of the Convention and that the first lines of the provision be worded as follows:

"Unless otherwise expressly provided in this Convention, if any notice, request or other communication is given by a party in accordance with this Convention and by means appropriate in the circumstances . . ."

[Rejected: see Consideration, 5, below.]

(ii) German Democratic Republic (A/CONF.97/C.1/L.123).

Replace the words "in accordance with Part III" in the third line of article 25 [became CISG article 27 ] by the words "in accordance with articles 37, 39 (2) and 40 (2) [became CISG article 39 , CISG article 43(1) and CISG article 42(2) ]".

[Rejected: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 25 [became CISG article 27 ] at its 13th meeting on 19 March 1980.

(ii) Consideration

5. At the 13th meeting, the amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.65) was rejected by 7 votes in favour and 25 against, the amendment by the German Democratic Republic (A/CONF.97/C.1/L.123) was rejected by 11 votes in favour and 17 against, and the UNCITRAL text adopted.

ARTICLE 26 [became CISG article 28 ]

A. UNCITRAL text

1. The text of [1978 draft of the ] the United Nations Commission on International Trade Law provided as follows:

"Article 26 [became CISG article 28 ]

"If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court could do so under its own law in respect of similar contracts of sale not governed by this Convention."

B. Amendments

2. Amendments were submitted to article 26 [became CISG article 28 ] by the United Kingdom (A/CONF.97/C.1/L.113) and United States of America (A/CONF.97/C.1/L.117). The amendments were identical in substance.

3. These amendments were to the following effect:

(i) United Kingdom (A/CONF.97/C.1/L.113):

It is proposed that the word "would" be substituted for the word "could" in this article.

[Adopted: see Consideration, 5, below.]

(ii) United States of America (A/CONF.97/C.1/L.117):

"If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention."

[Adopted: see Consideration, 5, below.]

Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 26 [became CISG article 28 ] at its 13th meeting on 19 March 1980.

(ii) Consideration

5. At the 13th meeting, the amendments by the United Kingdom (A/CONF.97/C.1/L.113), and the United States of America (A/CONF.97/C.1/L.117), which were identical in substance, were adopted by a vote of 26 in favour, 10 against, and the UNCITRAL text adopted, subject to these amendments.

ARTICLE 27 [became CISG article 29 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 27 [became CISG article 29 ]

"(1) A contract may be modified or abrogated by the mere agreement of the parties.

"(2) A written contract which contains a provision requiring any modification or abrogation to be in writing may not be otherwise modified or abrogated. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 27 [became CISG article 29 ] by Norway (A/C0NF.97/C.1/L.66), the United States (A/CONF.97/C.1/L.119) and Italy (A/C0NF.97/C.1/L.68).

3. These amendments were to the following effect:

Article as a whole.

(i) Norway (A/CONF.97/C.1/L.66):

It is proposed that article 27 [became CISG article 29 ] should be placed in part III on formation of the contract, for instance as article 21 [became CISG article 23 ].

[Rejected: see Consideration, 5, below.]

Paragraph (1).

(ii) United States (A/CONF.97/C.1/L.119):

Replace the word "abrogated" in paragraph (1) of article 27 [became CISG article 29 ] by the word "terminated".

[Referred to Drafting Committee: see Consideration, 5, below.]

Paragraph (2).

(iii) United States (A/CONF.97/C.1/L.119):

In the first sentence of paragraph (2), replace the word "abrogation" by the words "termination by agreement" and the word "abrogated" by the words "terminated by agreement".

[Referred to Drafting Committee: see Consideration, 5, below.]

New paragraph.

(iv) Italy (A/CONF.97/C.1/L.68):

Add a new paragraph (3) to article 27 [became CISG article 29 ]:

"(3) The preceding paragraph shall not apply where the provision requiring modifications or abrogations of the contract to be in writing is contained in general conditions prepared by one party and that party either directly or through an authorized agent orally agrees to modify or abrogate his general conditions."

[Rejected: see Consideration, 5, below.]

Proceedings in the First Committee

(i) Meetings

4. The First Committee considered this article at its 13th meeting on 19 March 1980.

(ii) Consideration

5. At the 13th meeting, the amendment by Norway (A/CONF.97/C.1/L.66) was rejected by 9 votes in favour and 27 against with 9 abstentions, the amendments by the United States (A/CONF.97/C.1/L.119) were referred to the Drafting Committee, the amendment by Italy (A/CONF.97/C.1/L.68) was rejected, and the UNCITRAL text adopted.

ARTICLE 28 [became CISG article 30 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 28 [became CISG article 30 ]

"The seller must deliver the goods, hand over, any documents relating thereto and transfer the property in the goods, as required by the contract and this Convention. "

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 28 [became CISG article 30 ] by Greece (A/CONF.97/C.1/L.130).

3. This amendment was to the following effect:

Article as a whole.

Greece (A/CONF.97/C.1/L.130):

Delete the words "as required by the contract and this Convention" or:

Insert at the end the words "and the law applicable".

[Withdrawn: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 28 [became CISG article 30 ] at its 13th meeting on 19th March 1980.

(ii) Consideration

Article as a whole.

5. At the 13th meeting, the amendment by Greece (A/CONF.97/C.1/L.130) was withdrawn, and the UNCITRAL text adopted.

ARTICLE 29 [became CISG article 31 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 29 [became CISG article 31 ]

"If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:

"(a) If the contract of sale involves carriage of the goods -- in handing the goods over to the first carrier for transmission to the buyer;

"(b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place -- in placing the goods at the buyer's disposal at that place;

"(c) in other cases -- in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 29 [became CISG article 31 ] by Iraq (A/CONF.97/C.1/L.107) and Netherlands (A/CONF.97/C.1/L.120).

3. These amendments were to the following effect:

(i) Iraq (A/CONF.97/C.1/L.107):

Re-word article 29 [became CISG article 31 ], subparagraph (a) as follows:

"(a) if the contract of sale involves carriage of the goods -- in handing the goods over to the first carrier for transmission to the place indicated by the buyer, or, if no such place is indicated, to the buyer's place of business. "

[Rejected: see Consideration, 5, below.]

(ii) Netherlands (A/CONF.97/C.1/L.120):

Insert after the words "carriage of the goods" the words "by sea".

[Withdrawn: see Consideration, 5, below.]

Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 29 [became CISG article 31 ] at its 14th meeting on 19 March 1980.

(ii) Consideration

5. At the 14th meeting, the amendment by the Netherlands (A/CONF.97/C.1/L.120) was withdrawn. The amendment by Iraq (A/CONF.97/C.1/L.107) was rejected, and the UNCITRAL text was adopted.

ARTICLE 30 [became CISG article 32 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 30 [became CISG article 32 ]

"(1) If the seller is bound to hand the goods over to a carrier and if the goods are not clearly marked with an address or are not otherwise identified to the contract, the seller must send the buyer a notice of the consignment which specifies the goods.

"(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for the carriage to the place fixed by means of transportation which are appropriate in the circumstances and according to the usual terms for such transportation.

"(3) If the seller is not bound to effect insurance in respect of the carriage of the goods, he must provide the buyer, at his request, with all available information necessary to enable him to effect such insurance."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 30 [became CISG article 32 ] by Australia (A/CONF.97/C.1/L.101).

3. This amendment was to the following effect:

Australia (A/CONF.97/C.1/L.101):

In paragraph (1) of article 30 [became CISG article 32 ], replace the words "If the seller is bound to hand" by the words "If the seller, pursuant to the contract or this Convention, hands".

[Adopted and referred to Drafting Committee: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 30 [became CISG article 32 ] at its 14th meeting on 19 March 1980.

(ii) Consideration

5. At the 14th meeting, the amendment by Australia (A/CONF.97/C.1/L.101) was adopted and referred to the Drafting Committee. The UNCITRAL text of article 30 [became CISG article 32 ] was adopted subject to this amendment.

ARTICLE 31 [became CISG article 33 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 31 [became CISG article 33 ]

"The seller must deliver the goods:

"(a) if a date is fixed by or determinable from the contract, on that date; or

"(b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or

"(c) in any other case, within a reasonable time after the conclusion of the contract."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. No amendments were submitted to article 31 [became CISG article 33 ].

C. Proceedings in the First Committee

(i) Meetings

3. The First Committee considered article 31 [became CISG article 33 ] at its 14th meeting on 19 March 1980.

(ii) Consideration

4. At its 14th meeting, the UNCITRAL text was adopted.

ARTICLE 32 [became CISG article 34 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 32 [became CISG article 34 ]

"If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 32 [became CISG article 34 ] by Yugoslavia (A/CONF.97/C.1/L.114).

3. The amendment was to the following effect:

Yugoslavia (A/CONF.97/C.1/L.114):

At the end of the article add the words "or by usage".

[Withdrawn: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 32 [became CISG article 34 ] at its 14th meeting on 19 March 1980.

(ii) Consideration

5. At the 14th meeting, the amendment by Yugoslavia was withdrawn, and the UNCITRAL text adopted.

ARTICLE 33 [became CISG article 35 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 33 [became CISG article 35 ]

"(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. Except where otherwise agreed, the goods do not conform with the contract unless they:

"(a) are fit for the purposes for which goods of the same description would ordinarily be used;

"(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;

"(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;

"(d) are contained or packaged in the manner usual for such goods.

"(2) The seller is not liable under subparagraphs (a) to (d) of paragraph (1) of this article for any non-conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such non-conformity."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 33 [became CISG article 35 ] by Federal Republic of Germany (A/CONF.97/C.1/L.73), Australia (A/CONF.97/C.1/L.74), Union of Soviet Socialist Republics (A/CONF.97/C.1/L.82), Norway (A/CONF.97/C.1/L.102), Canada (A/CONF.97/C.1/L.115) and Singapore (A/CONF.97/C.1/L.143).

3. These amendments were to the following effect:

(i) Canada (A/C0NF.97/C.1/L.115):

Replace article 33 [became CISG article 35 ] by the following text:

"(1) The seller must deliver goods which are of the quantity, quality and description required by the contract [and] which are contained or packaged in the manner required by the contract.

"(2) Unless otherwise agreed, where the seller is a person who deals in goods of the description supplied under the contract, the goods do not conform with the contract unless they:

"(a) are reasonably fit for the purposes for which goods of the same description would ordinarily be used;

"(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgment;

(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model.

"(3) Paragraph (2) does not apply,

"(a) as regards defects specifically drawn to the buyer's attention before the contract was made;

"(b) if the buyer examined the goods before the contract was made, with respect to any defect that a reasonable examination ought to have revealed; or

"(c) in the case of a sale by sample or model, with respect to any defect that would have been apparent on reasonable examination of the sample or model.

"(4) For the purposes of paragraph (2) (a), the goods are reasonably fit for the purposes for which goods of the same description would ordinarily be used if,

"(a) they are of such quality and in such condition as it is reasonable to expect having regard to any description applied to them, the price, and all other relevant circumstances;

"and, without limiting the generality of clause (a),

"(b) if the goods,

"(i) are such as pass without objection in the trade under the contract description,

"(ii) in the case of fungible goods, are of fair average quality within the description,

"(iii) within the variations permitted by the agreement, are of even kind, quality and quantity within each unit and among all units involved,

"(iv) are adequately contained, packaged and labeled as the nature of the goods or the agreement require,

"(v) conform to the representations or promises made on the container or label or other material, if any, accompanying the goods, and

"(vi) will remain fit or perform satisfactorily, as the case may be, for a reasonable length of time having regard to all the circumstances. "

[Withdrawn: see Consideration, 5, below.]

(ii) Union of Soviet Socialist Republics (A/CONF.97/C.1/L.82):

Re-word the first part of paragraph (1): to clearly express that goods do not conform with the contract unless they meet the specifications stated in the contract.

[Referred to an ad hoc working group: see Consideration, 7, below.]

(iii) Federal Republic of Germany (A/CONF.97/C.1/L.73):

Re-word paragraph (1), sub-paragraph (b) as follows:

"(b) are fit for any particular purpose expressly or impliedly made part of the contract."

[Rejected: see Consideration, 5, below.]

(iv) Singapore (A/CONF.97/C.1/L.143):

1. Re-word paragraph (1), subparagraph (c) as follows:

"(c) possess the qualities and characteristics of goods which the seller has held out to the buyer as a sample or model."

[Adopted and referred to Drafting Committee: see Consideration, 5, below.]

2. Insert in paragraph (1), after subparagraph (c), a new subparagraph as follows:

"(d) in general, possess the qualities and characteristics contemplated by the contract."

[Withdrawn: see Consideration, 5, below.]

(v) Australia (A/CONF.97/C.1/L.74):

1. Add to paragraph (1), subparagraph (d):

"or in a manner which, in the circumstances, would generally afford greater protection than the manner usual for such goods, or where there is no manner usual for such goods, in a manner adequate to preserve and protect the goods."

2. Add a new paragraph (3) as follows:

"(3) No difference in quantity, quality, description or packaging is to be taken into consideration if it is clearly insignificant."

[Rejected: see Consideration, 6, below.]

(vi) Norway (A/CONF.97/C.1/L.102):

In paragraph (2), replace the words "subparagraphs (a) to (d) of paragraph (1) of this article" by the words "the preceding paragraph".

[Referred to Drafting Committee: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 33 [became CISG article 35 ] at its 14th, 15th and 25th meetings, on 19, 20 and 27 March 1980.

(ii) Consideration

5. At the 15th meeting, the amendments by Singapore (A/CONF.97/C.1/L.143) relating to paragraph (1),subparagraph (d), and by Canada (A/CONF.97/C.1/L.115) were withdrawn. The amendment by Singapore relating to subparagraph (c) of paragraph (1) was adopted and referred to the Drafting Committee. The amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.73) was rejected.

6. The amendment by Australia (A/CONF.97/C.1/L.74) relating to paragraph (1), subparagraph (d) was amended orally by restricting the proposed addition to the following words: "or where there is no manner usual for such goods, in a manner adequate to preserve and protect the goods". This amendment was adopted by 22 votes in favour and 19 against. An amendment to the amendment by Australia was proposed orally by Sweden, to the effect that the words to be added read as follows: "or where there is no manner usual for such goods, in a manner necessary to enable the buyer to take delivery of the goods". This amendment was rejected by 15 votes in favour and 18 votes against. The amendment by Australia (A/CONF.97/C.1/L.74) relating to a new paragraph (3) was rejected by 9 votes in favour and 27 against. The amendment by Norway (A/CONF.97/C.1/L.102) was referred to the Drafting Committee.

7. At the 15th meeting, the amendment by the Union of Soviet Socialist Republics (A/CONF.97/C.1/L.82) was referred to an ad hoc working group composed of the representatives of Argentina, France, Iraq, Republic of Korea, Singapore, USSR and United Kingdom.

8. At the 25th meeting, the ad hoc working group submitted the following proposal (A/CONF.97/C.1/L.214):

Divide paragraph (1) of this article into two paragraphs and modify the introductory language of the sentence so that the corresponding part of the article may read as follows:

"(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.

"(2) Where the contract does not require otherwise, the goods do not conform with the contract unless they:

". . . . . . . (the rest of the paragraph stays as it is)

"(3) The seller is not liable under paragraph (2) of this article for any non-conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such non-conformity."

9. The Committee adopted the proposal, subject to the following change: the introductory words of paragraph (2) "Where the contract does not require otherwise" were rejected by 10 votes in favour and 10 against. The corresponding phrase in the UNCITRAL text "Except where otherwise agreed" was thus retained and referred to the Drafting Committee.

10. The UNCITRAL text of article 33 [became CISG article 35 ] was adopted subject to the amendments adopted noted in paragraphs 5, 6 and 9 above.

ARTICLE 34 [became CISG article 36 ]

A. UNCITRAL text

The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 34 [became CISG article 36 ]

"(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.

"(2) The seller is also liable for any lack of conformity which occurs after the time indicated in paragraph (1) of this article and which is due to a breach of any of his obligations, including a breach of any express guarantee that the goods will remain fit for their ordinary purpose or for some particular purpose, or that they will retain specified qualities or characteristics for a specific period."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 34 [became CISG article 36 ] by Turkey (A/CONF.97/C.1/L.122), Norway (A/CONF.97/C.1/L.105) and Pakistan (A/CONF.97/C.1/L.147).

3. These amendments were to the following effect:

Paragraph (1).

Turkey (A/CONF.97/C.1/L.122):

Replace the words "even though the lack of conformity becomes apparent only after that time" by the words "if the lack of conformity becomes apparent within the time stipulated in the contract or within the customary period of time".

[Rejected: see Consideration, 5, below.]

Paragraph (2).

(i) Norway (A/CONF.97/C.1/L.105):

Replace the words "paragraph (1) of this article" by the words "the preceding paragraph".

[Referred to Drafting Committee: see Consideration, 5, below.]

(ii) Pakistan (A/CONF.97/C.1/L.147):Revise paragraph (2) to read:

"The seller is also liable for any lack of conformity which occurs after the time indicated in paragraph (1) of this article and which is due to a breach of any of his obligations, including a breach of any express guarantee or implied warranty that the goods will remain fit for their ordinary purpose or for some particular purpose, or that they will retain specified qualities or characteristics for a specific or reasonable period as the case may be."

[Rejected: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 34 [became CISG article 36 ] at its 14th and 15th meetings on 19 and 20 March 1980.

(ii) Consideration

5. At the 14th meeting, the amendment by Turkey (A/CONF.97/C.1/L.122) was rejected. The amendment by Norway (A/CONF.97/C.1/L.105) was referred to the Drafting Committee.

6. At the 15th meeting, the amendment by Pakistan (A/CONF.97/C.1/L.147) was amended orally to the effect that the expression "warranty" be replaced by the expression "term". As amended, it was rejected by 15 votes in favour and 22 against. An alternative amendment was proposed orally by Greece to the effect that the word "express" before the word "guarantee" in the UNCITRAL text be deleted. This amendment was adopted by 21 votes in favour and 19 against. The UNCITRAL text, thus amended, was adopted and referred to the Drafting Committee for consideration of an appropriate qualification of the period mentioned at the end of paragraph (2) without the use of the term "reasonable".

ARTICLE 35 [became CISG article 37 ]

A. UNCITRAL text

1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:

"Article 35 [became CISG article 37 ]

"If the seller has delivered goods before the date for delivery he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. The buyer retains any right to claim damages as provided for in this Convention."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 35 [became CISG article 37 ] by Canada (A/CONF.97/C.1/L.116).

3. This amendment was to the following effect:

Canada (A/CONF.97/C.1/L.116):

Insert after the words "conformity in the goods delivered" the words "or any documents relating thereto".

[Adopted: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 35 [became CISG article 37 ] at its 14th meeting on 19 March 1980.

(ii) Consideration

5. At the 14th meeting, the amendment by Canada (A/CONF.97/C.1/L.116) was adopted by 20 votes in favour and 11 against. An alternative amendment was proposed orally by the United States to the effect that the words "in the goods delivered" be deleted in the expression "lack of conformity in the goods delivered". This amendment was rejected by 8 votes in favour and 9 against. The UNCITRAL text was adopted, subject to the amendment by Canada.

6. An amendment proposed orally by Mexico to the effect that the title of Section II. be altered to conform with the decision on the amendment by Canada was referred to the Drafting Committee.