art65-75.html

ARTICLE 65 [became CISG article 79 ]

A. UNCITRAL text

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

"Article 65 [became CISG article 79 ]

"(1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.

"(2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the person whom he has engaged would be so exempt if the provisions of that paragraph were applied to him.

"(3) The exemption provided by this article has effect only for the period during which the impediment exists.

"(4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.

"(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 65 [became CISG article 79 ] by Norway (A/CONF.97/C.1/L.191/Rev.1), Denmark (A/CONF.97/C.1/L.186), Finland (A/CONF.97/C.1/L.190), German Democratic Republic (A/CONF.97/C.l/L.217 and 234), Pakistan (A/CONF.97/C.1/L.223), Turkey (A/CONF.97/C.1/L.210) and Federal Republic of Germany (A/CONF.97/C.1/L.208).

3. These amendments were to the following effect:

Paragraph (1).

Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word paragraph (1) as follows:

"(1) A party is not liable for a failure to perform his obligations if he proves that the failure was due to an impediment beyond his control and of a kind which he could not reasonably be expected to have taken into account at the time of the conclusion of the contract and that he could not reasonably be expected to have avoided or overcome the impediment or its consequences."

[As to first change referred to Drafting Committee, as to second change rejected: see Consideration, 5, below.]

Paragraph (2).

(i) Denmark (A/CONF.97/C.1/L.186):

Reword paragraph (2) as follows:

"(2) If the party's failure is due to the failure by his supplier or a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the supplier or the third person would be so exempt if the provision of that paragraph were applied to him."

[Withdrawn: see Consideration, 6, below.]

(ii) Finland (A/CONF.97/C.1/L.190):

Re-word paragraph (2) as follows:

"(2) If the party's failure is due to the failure by his supplier or a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the supplier or the third person would be so exempt if the provisions of that paragraph were applied to him."

[Withdrawn: see Consideration, 6, below]

(iii) German Democratic Republic (A/CONF.97/C.1/L.217):

Insert, in the above amendments by Denmark and Finland, in both cases after the word "supplier" the word "carrier".

[Withdrawn: see Consideration, 6, below.]

(iv) Turkey (A/C0NF.97/C.1/L.210):

Delete paragraph (2).

[Rejected: see Consideration, 6, below.]

(v) Pakistan (A/CONF.97/C.1/L.223):

At the end of paragraph (2), add the words "provided the contract expressly or impliedly envisaged subcontracting by the party".

[Rejected: see Consideration, 6, below.]

Paragraph (3).

(i) Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word paragraph (3) as follows:

"(3) Where the impediment is temporary, the exemption provided by this article has effect for the period during which the impediment exists. Nevertheless, the party who fails to perform is permanently exempted to the extent that, after the impediment is removed, the circumstances are so radically changed that it would be manifestly unreasonable to hold him liable."

Alternatively, the word "only" should be deleted.

[First alternative rejected and second alternative adopted: see Consideration, 9, below.]

(ii) German Democratic Republic (A/CONF.97/C.1/L.217):

Re-word paragraph (3) as follows:

"(3) The exemption provided by this article has effect only for the period during which the impediment and its consequences exist."

[Referred to Drafting Committee: see Consideration, 9, below.]

Paragraph (4).

(i) Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word the second sentence of paragraph (4) as follows:

"If he fails to do so within a reasonable time after he knew or ought to have known of the impediment, he is liable for the damage resulting from this failure."

[Rejected: see Consideration, 10, below.]

(ii) Finland (A/CONF.97/C.1/L.190):

Re-word the second sentence of paragraph (4) as follows:

"If he fails to do so within a reasonable time after he knew or ought to have known of the impediment, he is liable for damage resulting from this failure.

[Rejected: see Consideration, 10, below.]

Paragraph (5).

(i) Norway (A/CONF.97/C.1/L.191/Rev.1):

Re-word paragraph (5) as follows:

"(5) Nothing in this article prevents a party from avoiding the contract or reducing the price in accordance with the provisions of this Convention."

[Rejected: see Consideration, 11, below.]

(ii) Federal Republic of Germany (A/CONF.97/C.1/L.208):

Re-word paragraph (5) as follows and place present paragraph (3) at the end of article 65 [became CISG article 79 ]:

"(5) Nothing in this article prevents either party from exercising any right other than to claim damages or to require performance under this Convention."

[Rejected: see Consideration, 11, below.]

(iii) German Democratic Republic (A/CONF.97/C.1/L.217):

Re-word paragraph (5) as follows:

"(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention or to claim any penalties or liquidated damages provided for in the contract".

[Rejected: see Consideration, 11, below.]

[BECAME CISG ARTICLE 80 ]

New article 65 bis [became CISG article 80 ].

(i) German Democratic Republic (A/CONF.97/C.1/L.217):

Add a new article 65 bis [became CISG article 80 ] as follows:

"Neither party may exercise any right under this Convention if he has caused by his own act or omission the failure to perform of the other party."

[Withdrawn and replaced by another amendment: see Consideration, 13, below.]

(ii) German Democratic Republic (A/CONF.97/C.1/L.234):

Add a new article 65 bis or 23 bis [became CISG article 80 ] as follows:

"A party may not rely on a failure of the other party to perform insofar as the first party by his own act or omission caused the failure to perform."

[Adopted with additional amendment: see Consideration, 13, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 65 [became CISG article 79 ] at its 27th, 28th, 30th, 32nd and 33rd meetings on 28, 31 March, 1 and 2 April 1980.

(ii) Consideration

Paragraph (1).

5. At the 27th meeting, the amendment by Norway (A/CONF.97/C.1/L.191/Rev.1) was, as to its first part, referred to the Drafting Committee and, as to its second part, rejected. The UNCITRAL text was adopted.

Paragraph (2).

6. At the 27th meeting, the amendments by Denmark (A/CONF.97/C.1/L.186), Finland (A/CONF.97/C.1/L.190) and German Democratic Republic (A/CONF.97/C.1/L.217) were withdrawn. The amendment by Pakistan (A/CONF.97/C.1/L.223) was rejected. The amendment by Turkey (A/CONF.97/C.1/L.210) was also rejected on the understanding that the Committee would be free to reconsider the issue of the deletion of paragraph (2) in the light of the proposal expected from the ad hoc working group to be established. The Committee established an ad hoc working group, composed of the representatives of German Democratic Republic, Ghana, Norway, Sweden, Switzerland and Turkey to redraft paragraph (2) so as to avoid ambiguities in the interpretation of that paragraph and its relationship to paragraph (1).

7. At the 32nd meeting, the ad hoc working group submitted the following proposal (A/CONF.97/C.1/L.243 as correctly orally):

Variant I:

Revise paragraph (2) of article 65 [became CISG article 79 ] as follows:

"(2) However, the failure of a third person whom a party has engaged for the performance of the whole or a part of the contract does not exempt that party from liability, unless the said third person also would be so exempt if the provisions of paragraph (1) were applied to him."

Variant II:

Delete paragraph (2) of article 65 [became CISG article 79 ].

8. At the 33rd meeting, variant I of the proposal by the ad hoc working group was rejected by 16 votes in favour and 21 against. Variant II of that proposal was also rejected, by 22 votes in favour and 23 against. The UNCITRAL text of paragraph (2) was adopted.

Paragraph (3).

9. At the 27th meeting, the amendment by Norway (A/CONF.97/C.1/L.191/Rev.1) was rejected in its first alternative by 12 votes in favour and 25 against, and it was adopted in its second alternative, i.e. to delete the word "only", by 19 votes in favour and 12 against. At the 28th meeting, the amendment by the German Democratic Republic (A/CONF.97/C.1/L.217) was referred to the Drafting Committee. The UNCITRAL text was adopted subject to these amendments.

Paragraph (4).

10. At the 28th meeting, the amendments by Norway (A/CONF.97/C.1/L.191/Rev.1) and Finland (A/CONF.97/C.1/L.190) were rejected by 14 votes in favour and 17 against, and the UNCITRAL text was adopted.

Paragraph (5).

II. At the 28th meeting, the amendment by Norway (A/CONF.97/C.1/L.191/Rev.1) was rejected by 13 votes in favour and 22 against. The amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.208) was rejected by 15 votes in favour and 19 against. The amendment by the German Democratic Republic (A/C0NF.97/C.1/L.217) was also rejected. The UNCITRAL text was adopted.

New article 65 bis [became CISG article 80 ]

12. At its 28th meeting, the Committee decided to defer consideration of the proposal by the German Democratic Republic (A/CONF.97/C.1/L.217) in order to enable that delegation to redraft its proposal in the light of the discussion in the Committee.

13. At the 30th meeting, the amendment by the German Democratic Republic (A/CONF.97/C.1/L.217) was withdrawn and replaced by another amendment (A/CONF.97/C.1/L.234) to the effect that a new article 65 bis or 23 bis [became CISG article 80 ] be added as follows: "A party may not rely on a failure of the other party to perform insofar as the first party by his own act or omission caused the failure to perform". This amendment was amended orally by the Federal Republic of Germany to the effect that the words "insofar as" be replaced by the words "to the extent that". Thus amended, the amendment was adopted by 34 votes in favour and none against and referred to the Drafting Committee in order to decide whether the article should be a new article 65 bis or 23 bis [became CISG article 80 ].

SECTION III. EFFECTS OF AVOIDANCE

ARTICLE 66 [became CISG article 81 ]

A. UNCITRAL text

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

"Article 66 [became CISG article 81 ]

"(1) Avoidance of the contract releases both parties from their obligations thereunder, subject to any damages which may be due. Avoidance does not affect any provisions of the contract for the settlement of disputes or any other provisions of the contract governing the respective rights and obligations of the parties consequent upon the avoidance of the contract.

"(2) If one party has performed the contract either wholly or in part, he may claim from the other party restitution of whatever he has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 66 [became CISG article 81 ] by Norway (A/CONF.97/C.1/L.191 and L. 192) and Canada (A/CONF.97/C.1/L.239).

3. These amendments were to the following effect:

(i) Norway (A/CONF.97/C.1/L.191):

Title of Section III of Chapter IV.

Revise this title to read as follows:

"Effects of avoidance or request for substitute goods".

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

(ii) Norway (A/CONF.97/C.1/L.192):

New paragraph (3).

Add the following new paragraph (3):

"(3) If the contract is not avoided, but the buyer requires delivery of substitute goods and has paid the price, restitution of the goods he has received must be made concurrently with the new delivery."

[Rejected: see Consideration, 5, below.]

(iii) Canada (A/CONF.97/C.1/L.239):

Amend article 66 [became CISG article 81 ] by adding one of the following versions of new paragraph (3):

Alternative 1:

"(3) Notwithstanding paragraph (2), the seller shall not be entitled to claim restitution of his goods where the goods have been delivered to the buyer and the buyer is insolvent or the restitution of the goods would otherwise prejudice the rights of the buyer's creditors."

Alternative 2:

"(3) Notwithstanding paragraph (2), the seller shall not be entitled to claim restitution of the goods where the goods have been delivered to the buyer and, under the applicable municipal law, title in the goods has passed to the buyer."

[Withdrawn: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered this article at its 28th and 33rd meetings on 28 March and 2 April 1980 respectively.

(ii) Consideration

5. At the 28th meeting, the amendment by Norway (A/CONF.97/C.1/L.191) was referred to the Drafting Committee. The amendment by Norway (A/CONF.97/C.1/L.192) was rejected by 7 votes in favour and 23 against, and the UNCITRAL text adopted.

6. At the 33rd meeting, the amendment by Canada (A/CONF.97/C.1/L.239), which was submitted after the close of the deliberations on article 66 [became CISG article 81 ], was withdrawn.

ARTICLE 67 [became CISG article 82 ]

A. UNCITRAL text

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

"Article 67 [became CISG article 82 ]

"(1) The buyer loses his right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them.

"(2) Paragraph (1) of this article does not apply:

"(a) if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which he received them is not due to an act or omission by the buyer; or

"(b) if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in article 36; or

"(c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered the lack of conformity or ought to have discovered it."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. No amendments were submitted to article 67 [became CISG article 82 ].

C. Proceedings in the First Committee

(i) Meetings

3. The First Committee considered this article at its 28th meeting on 28 March 1980.

(ii) Consideration

4. At the 28th meeting, the UNCITRAL text was adopted.

ARTICLE 68 [became CISG article 83 ]

A. UNCITRAL text

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

"Article 68 [became CISG article 83 ]

"The buyer who has lost the right to declare the contract avoided or to require the seller to deliver substitute goods in accordance with article 67 retains all other remedies."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. No amendments were submitted to article 68 [became CISG article 83 ].

C. Proceedings in the First Committee

(i) Meetings

3. The First Committee considered this article at its 28th meeting on 28 March 1980.

(ii) Consideration

4. At the 28th meeting, the UNCITRAL text was adopted.

ARTICLE 69 [became CISG article 84 ]

A. UNCITRAL text

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

"Article 69 [became CISG article 84 ]

"(1) If the seller is bound to refund the price, he must also pay interest thereon from the date on which the price was paid.

"(2) The buyer must account to the seller for all benefits which he has derived from the goods or part of them:

"(a) if he must make restitution of the goods or part of them; or

"(b) if it is impossible for him to make restitution of all or part of the goods or to make restitution of all or part of the goods substantially in the condition in which he received them, but he has nevertheless declared the contract avoided or required the seller to deliver substitute goods. "

[Go to Secretariat Commentary on the above text]

B. Amendments

2. In connection with article 69 [became CISG article 84 ], the First Committee also considered some amendments submitted on the issue of interest on sums that were in arrears.

3. Amendments were submitted to article 69 [became CISG article 84 ], and on the issue of interest on sums that were in arrears, by Denmark, Finland, Greece, Sweden (A/CONF.97/C.1/L.216), Czechoslovakia (A/CONF.97/C.1/L.218), Japan (A/CONF.97/C.1/L.222), Pakistan (A/CONF.97/C.1/L.225) and United Kingdom (A/CONF.97/C.1/L.226/Rev.1).

4. These amendments were to the following effect:

(i) Denmark, Finland, Greece, Sweden (A/CONF.97/C.1/L.216):

Add a new article 73 bis [concordance: CISG article 78 ] to read as follows:

"If a party fails to pay the price or any other sum as is in arrears, the other party is entitled to interest thereon at the customary rate for commercial credits at his place of business."

As a consequence the title "Section IV. Damages" should be amended to read "Section IV. Damages and interest".

[Withdrawn: see Consideration, 14, below.]

(ii) Czechoslovakia (A/CONF.97/C.1/L.218):

Add a new article 60 bis [concordance: CISG article 78 ] to read as follows:

"(1) If the breach of contract consists of delay in the payment of the price, the seller is in any event entitled to interest on such sum as is in arrears at a rate equal to the official discount rate prevailing in the country where the buyer has his place of business, at the time of delay increased by one per cent or, if there is no such a rate, at the rate applied to unsecured short term international commercial credits increased by one per cent.

"(2) The seller may claim damages as provided in this Convention, if the loss is not covered by interests."

[Withdrawn: see Consideration, 14, below.]

(iii) Japan (A/C0NF.97/C.1/L.222):

Add a new article 73 bis [concordance: CISG article 78 ] to read as follows:

"If a party has failed to pay the price or any other sum that is in arrears, the other party is presumed to have suffered damages equivalent to the amount calculated at the interest rate for [unsecured short-term commercial credits prevailing] at his place of business."

[Withdrawn: see Consideration, 14, below.]

(iv) Pakistan (A/CONF.97/C1/L.225):

The following sentence may be added at the and of paragraph (1) of article 69 [became CISG article 84 ]:

"The rate of interest would be the one current at the seller's place of business."

[Withdrawn: see Consideration, 14, below.]

(v) United Kingdom (A/CONF.97/C.1/L.226/Rev.1):

The following proposal should replace that made in A/CONF.97/C.1/L.226:

Delete paragraph (1) of article 69 [became CISG article 84 ].

New article in Part I.

Insert in Part 1, chapter I (sphere of application), a new article to read as follows:

"This Convention does not affect any right of the seller or buyer to recover interest on money."

[Withdrawn: see Consideration, 14, below.]

C. Proceedings in the First Committee

(i) Meetings

5. The First Committee considered this article at its 28th, 29th and 34th meetings on 28 and 31 March and 3 April 1980 respectively.

(ii) Consideration

6. At the 29th meeting, an ad hoc working group composed of the representatives of Argentina, Czechoslovakia, Ghana, Greece, India, Italy, Pakistan and Sweden was established to consider the amendments relating to article 69 [concordance: CISG article 78 ] and the issue of interest on sums that are in arrears.

7. At the 34th meeting, the ad hoc working group submitted the following text:

Ad hoc Working Group on interest composed of Argentina, Czechoslovakia, Ghana, Greece, India, Italy, Pakistan and Sweden, assisted by Denmark, United States of America and Yugoslavia (A/CONF.97/C.1/L.247):

Matter of interest

(sums that are in arrears)

Article 73 bis [concordance: CISG article 78 ]

Alternative 1:

Alternative 11:

"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 short-term commercial credit or at another similar appropriate rate prevailing in the main domestic financial centre of the country of the party in default, 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 first said rate in his own country. "

Alternative III:

"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 short-term commercial credit or at another similar appropriate rate prevailing in the main domestic financial centre of the party in default. However, in case the party claiming interest is not fairly compensated by such rate, he may claim interest up to the first said rate in his own country."

(Restitution of price)

Article 69 [became CISG article 84 ]

Paragraph (1).

Add at the end of paragraph (1) of article 69 [became CISG article 84 ] the following:

"at the rate as set out in article 73 bis [concordance: CISG article 78 ] in the country of the seller's place of business."

8. At the 34th meeting, a motion to close the debate on the proposals submitted by the ad hoc working group A/CONF.97/C.1/L.247 was adopted by 19 votes in favour and 16 against.

9. Alternative I of the proposals submitted by the ad hoc working group A/CONF.97/C.1/L.247 was rejected by 17 votes in favour and 22 against.

10. An oral amendment was submitted to delete from Alternative II of the proposals submitted by the ad hoc working group the words "or, in case of the other party's actual credit costs are higher, at a rate corresponding thereto but not at a rate higher than the first said rate in his own country". This oral amendment was rejected by 9 votes in favour and 16 against.

11. An oral amendment was submitted to delete from Alternative III of the proposals submitted by the ad hoc working group the words "However, in case the party claiming interest is not fairly compensated by such rate, he may claim interest up to the first said rate in his own country." This oral amendment was rejected by 8 votes in favour and 15 against.

12. Alternative II of the proposals submitted by the ad hoc working group as unamended was adopted by 20 votes in favour and 14 against, and referred to the Drafting Committee. An oral amendment to add the word "normal" before the word "rate" in the phrase "rate for a short-term commercial credit" was adopted by 9 votes in favour and 6 against.

13. The proposal of the ad hoc working group in regard to paragraph (1) of article 69 [became CISG article 84 ] was adopted by 26 votes in favour and 8 against, and referred to the Drafting Committee. The UNCITRAL text of article 69 [became CISG article 84 ] was adopted subject to this amendment.

14. The proposals of Denmark, Finland, Greece, Sweden (A/CONF.97/C.1/L.216), Czechoslovakia (A/CONF.97/C.1/L.218), Japan (A/CONF.97/C.1/L.222), Pakistan (A/CONF.97/C.1/L.225) and the United Kingdom (A/CONF.97/C.1/L.226/Rev.1) were withdrawn.

ARTICLE 74 [became CISG article 85 ]

A. UNCITRAL text

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

"Article 74 [became CISG article 85 ]

"If the buyer is in delay in taking delivery of the goods and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them. He may retain them until he has been reimbursed his reasonable expenses by the buyer."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. An amendment was submitted to article 74 [became CISG article 85 ] by the Federal Republic of Germany (A/CONF.97/C.1/L.211).

3. This amendment was to the following effect:

Federal Republic of Germany (A/CONF.97/C.1/L.211):

Revise the first sentence of article 74 [became CISG article 85 ] to read as follows:

"If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are concurrent conditions, if he is in delay in paying the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them."

[Adopted: see Consideration, 5, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 74 [became CISG article 85 ] at its 30th meeting on 31 March 1980.

(ii) Consideration

5. At the 30th meeting, the amendment by Federal Republic of Germany (A/CONF.97/C.1/L.211) was adopted by 19 votes in favour and 5 votes against, and the UNCITRAL text adopted, subject to the amendment.

ARTICLE 75 [became CISG article 86 ]

A. UNCITRAL text

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

"Article 75 [became CISG article 86 ]

"(1) If the goods have been received by the buyer and he intends to reject them, he must take such steps as are reasonable in the circumstances to preserve them. He may retain them until he has been reimbursed his reasonable expenses by the seller.

"(2) If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided that he can do so without payment of the price and without unreasonable inconvenience or unreasonable expense. This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination."

[Go to Secretariat Commentary on the above text]

B. Amendments

2. Amendments were submitted to article 75 [became CISG article 86 ] by China (A/CONF.97/C.1/L.178) and Australia (A/CONF.97/C.1/L.227).

3. These amendments were to the following effect:

Paragraph (1).

(i) China (A/CONF.97/C.1/L.178):

Amend paragraph (1) of this article to read as follows:

"If the goods have been received by the buyer but are found not to be in conformity with the contract and he intends to reject them, he must, apart from informing the seller without undue delay of his intention and providing him with the relevant documents including the inspection certificate issued by an inspection firm, take such steps as are reasonable in the circumstances to preserve the goods . . ."

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

(ii) Australia (A/CONF.97/C.1/L.227): Paragraph (1).

Insert after the words "reject them" in paragraph (1) the following words:

"or if the goods have been taken into possession by the buyer on behalf of the seller under paragraph (2)."

[Withdrawn in favour of oral amendment: see Consideration, 6, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered this article at its 30th and 31st meetings on 31 March 1980 and I April 1980 respectively.

(ii) Consideration

5. At the 30th meeting, the amendment by China (A/CONF.97/C.1/L.178) was referred to the Drafting Committee.

6. At the 31st meeting, the amendment by Australia (A/CONF.97/C.1/L.227) was withdrawn in favour of an oral amendment to insert at the end of the first sentence in paragraph (2) a sentence on the following lines:

"In this case his rights and duties as granted by paragraph (1) apply."

This oral amendment was adopted and referred to the Drafting Committee. The UNCITRAL text was adopted subject to this amendment.