ARTICLE 76 [became CISG article 87 ]
A. UNCITRAL text
1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:
"Article 76 [became CISG article 87 ]
"The party who is bound to take steps to preserve the goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable."
[Go to Secretariat Commentary on the above text]
B. Amendments
2. No amendments were submitted to this article.
Proceedings in the First Committee
(i) Meetings
3. The First Committee considered article 76 [became CISG article 87 ] at its 31st meeting on 1 April 1980.
(ii) Consideration
4. At the 31st meeting, the UNCITRAL text was adopted.
ARTICLE 77 [became CISG article 88 ]
A. UNCITRAL text
The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:
"Article 77 [became CISG article 88 ]
"(1) The party who is bound to preserve the goods in accordance with articles 74 [became CISG article 85 ] or 75 [became CISG article 86 ] may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the cost of preservation, provided that notice of the intention to sell has been given to the other party.
"(2) If the goods are subject to loss or rapid deterioration or their preservation would involve unreasonable expense, the party who is bound to preserve the goods in accordance with article 74 [became CISG article 85 ] or 75 [became CISG article 86 ] must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell.
"(3) The party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance."
[Go to Secretariat Commentary on the above text]
B. Amendments
2. An amendment was submitted to article 77 [became CISG article 88 ] by Argentina, Spain, Portugal (A/CONF.97/C.1/L.188).3. This amendment was to the following effect:
Paragraph (1).
Argentina, Spain, Portugal (A/CONF.97/C.1/L.188):
[Withdrawn in favour of the amendment by the ad hoc working group: see Consideration, 7, below.]
Proceedings in the First Committee
(i) Meetings
4. The First Committee considered this article at its 31st and 33rd meetings on 1 and 2 April 1980 respectively.
(ii) Consideration
Paragraph (1).
5. At the 31st meeting, the amendment by Argentina, Spain, Portugal (A/CONF.97/C.1/L.188) was referred for consideration to an ad hoc working group composed of the representatives of Argentina, Canada, Netherlands, Singapore and Spain.
6. At the 33rd meeting, the ad hoc working group submitted the following text.
Ad hoc working group composed of Argentina, Canada, Netherlands and Portugal (A/CONF.97/C.1/L.246), in which Singapore also participated:
7. The amendment by the ad hoc working group relating to the addition of the words "the price or" was adopted to make paragraph (1) consistent with article 74 [became CISG article 85 ] as amended by the First Committee at its 30th meeting on 31 March 1980. The amendment by the ad hoc working group to add the word "reasonable" was adopted by 23 votes in favour and 15 against, and referred to the Drafting Committee.
Paragraphs (2) and (3).
8. At the 33rd meeting, the UNCITRAL text was adopted.
III. Consideration of draft articles submitted by the Drafting Committee
1. At its 35th meeting on 4 April l 980, the First Committee considered draft articles 1 to 17 of the draft Convention on Contracts for the International Sale of Goods, as submitted to the First Committee by the Drafting Committee (A/CONF.97/C.1/L.248) and adopted the text of articles 1 to 17 as set forth in A/CONF.97/11/Add.1.
2. At its 36th meeting on 4 April 1980, the First Committee considered draft articles 18 to 31 of the draft Convention as submitted to the First Committee by the Drafting Committee (A/CONF.97/C.1/L.248 and Add.1) and adopted the text of articles 18 to 31 as set forth in A/CONF.97/11/Add.1.
3. At its 37th meeting on 7 April 1980, the First Committee considered draft articles 32 to 61 and 64 to 82 of the draft Convention as submitted to the First Committee by the Drafting Committee (A/CONF.97/C.1/L.248/Add.2 and Add.3), and adopted the text of these articles as set forth in A/CONF.97/11/Add.2.
4. At its 38th meeting on 7 April 1980, the First Committee considered draft articles 62 and 63 of the draft Convention as submitted to the First Committee by the Drafting Committee (A/CONF.97/C.1/L.248/Add.2) together with the proposals of an ad hoc working group relating to these articles (A/CONF.97/C.1/L.252 and 253). At the 38th meeting, the First Committee adopted the text of these articles as set forth in A/CONF.97/11/Add.2.
H. REPORT OF THE SECOND COMMITTEE
Document A /CONF.97/12
[Original: English]
[1 April 1980]
I. Introduction
A. Submission of the report
1. The Conference at its 1st plenary meeting entrusted the Second Committee with the consideration of the draft articles concerning implementation, declarations, reservations and other final clauses (A/CONF.97/6) (with the exception of article X [became CISG article 95 ] : Declarations relating to contracts in writing) and of the draft Protocol to the Convention on the Limitation Period in the International Sale of Goods (A/C0NF.97/7) prepared by the Secretary-General.
2. The present document contains the report of the Second Committee to the Conference on its consideration of the draft articles referred to it, and of other proposals made to the Second Committee during its deliberations.
B. Election of officers
3. At its 3rd plenary meeting on 11 March 1980 the Conference unanimously elected Prof. Mantilla-Molina (Mexico) as Chairman of the Second Committee. On 17 March 1980, at the 1st meeting of the Second Committee. Mr. Mikola P. Makarevitch (Ukrainian Soviet Socialist Republic) was elected Vice-Chairman of the Second Committee. On 18 March 1980, at the 2nd meeting of the Second Committee, Dr. Venkatramiah Kuchibhotla (India) was elected Rapporteur of the Second Committee.
C. Meetings, organization of work and structure of this report
(i) Meetings
The Second Committee held 9 meetings, between 17 March and 1 April 1980.
(ii) Organization of work
5. At its 1st Meeting on 17 March 1980, the Second Committee adopted as its agenda the provisional agenda contained in A/C0NF.97/C.2/L.1.
6. The Second Committee proceeded mainly by way of an article-by-article discussion of the draft articles before it and of the amendments to these draft articles submitted by representatives during the Conference. After initial consideration of an article and amendments pertaining thereto by the Second Committee, and subject to the decisions taken on these amendments, the article was referred to the Drafting Committee.
(iii) Plan of this report
7. This report describes the work of the Second Committee relating to each article before it, in accordance with the following scheme:
(b) Texts of amendments, if any, with a brief description of the manner in which they were dealt with;
(c) Proceedings of the Second Committee, subdivided as follows:
(ii) Consideration of the article.
II. Consideration by the Second Committee of the draft Convention on Contracts for the International Sale of Goods: draft articles concerning implementation, declarations, reservations and other final clauses
ARTICLE [A] [became CISG article 89 ] DEPOSITARY
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article A [became CISG article 89 ] -- Depositary
"The Secretary-General of the United Nations is hereby designated as the depositary of this Convention."
B. Amendments
2. No amendments were submitted.
C. Proceedings in the Second Committee
(i) Meetings
3. The Second Committee considered the article on depositary at its 1st meeting on 17 March 1980.
(ii) Consideration
4. The text prepared by the Secretary-General was adopted.
ARTICLE [D] [became CISG article 90 ] RELATIONSHIP WITH CONVENTIONS CONTAINING PROVISIONS DEALING WITH MATTERS GOVERNED BY THIS CONVENTION
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article D [became CISG article 90 ] -- Relationship with Conventions containing provisions dealing with matters governed by this Convention
"This Convention shall not prevail over conventions already entered into or which may be entered into, and which contain provisions concerning the matters governed by this Convention, provided that the offeror and offeree or seller and buyer as the case may be have their places of business in States parties to such a convention."
B. Amendments
2. An amendment was submitted to the article on "Relationship with Conventions containing provisions dealing with matters governed by this Convention" by the USSR (A/CONF.97/C.2/L.9).
3. This amendment was to the following effect:
[Adopted: see Consideration, 5, below.]
C. Proceedings in the second Committee
(i) Meetings
4. The Second Committee considered the article on "Relationship with Conventions containing provisions dealing with matters governed by this Convention" at its 2nd meeting on 18 March 1980.
(ii) Consideration
5. At its 2nd meeting, the Committee adopted the amendment by the USSR (A/CONF.97/C.2/L.9) as amended orally by Canada to include the word "any" before "international". It rejected an oral amendment by Nigeria to delete Article D.
ARTICLE [F] [became CISG article 91 ] SIGNATURE, RATIFICATION, ACCEPTANCE, APPROVAL, ACCESSION
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article F [became CISG article 91 ] -- Signature, ratification, acceptance, approval, accession
"(1) This Convention is open for signature at the concluding meeting of the Conference on . . . and shall remain open for signature at the Headquarters of the United Nations, New York, until . . .
"(2) This Convention is subject to ratification, acceptance or approval by the signatory States.
"(3) This Convention shall be open for accession by all States which are not signatory States.
"(4) Instruments of ratification, acceptance, approval and accession shall be deposited with the depositary."
B. Amendments
2. No amendments were submitted.
C. Proceedings in the Second Committee
(i) Meetings
3. The Second Committee considered the article on "Signature, ratification, acceptance, approval, accession" at its 2nd and 4th meetings on 18 March and 24 March 1980.
(ii) Consideration
4. The Second Committee decided that the Convention remain open for signature by all States at the Headquarters of the United Nations, New York, until 30 September 1981. The Committee approved a suggestion by the Secretariat that the words "at any time" be added after "signatory States" at the end of paragraph 3. The Committee approved an oral amendment by Canada to replace the word "depositary" by the words "Secretary-General of the United Nations" at the end of paragraph 4.
ARTICLE [G] [became CISG article 92 ] PARTIAL RATIFICATION, ACCEPTANCE, APPROVAL OR ACCCESSION
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article G [became CISG article 92 ] -- Partial ratification, acceptance, approval or accession
"(1) A Contracting State may declare at the time of signature, ratification, acceptance or accession it will not be bound by the provisions of Part II of this Convention or that it will not be bound by the provisions of Part III of this Convention.
"(2) A Contracting State which makes a declaration pursuant to paragraph (1) of this article in respect of Part II or Part III of this Convention shall not be considered to be a Contracting State within article 1(1) of this Convention [became CISG article 1(1) ] in respect of matters governed by the Part that it has not accepted."
B. Amendments
2. No amendments were submitted.
C. Proceedings in the Second Committee
(i) Meetings
3. The Second Committee considered the article on Partial ratification, acceptance, approval or accession at its 2nd meeting on 18 March 1980.
(ii) Consideration
4. The Second Committee adopted the article on Partial ratification, acceptance, approval or accession as prepared by the Secretary-General.
ARTICLE [B] [became CISG article 93 ] FEDERAL STATE CLAUSE
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article B [became CISG article 93 ] -- Federal State clause
"Alternative I
"In the case of a federal or non-unitary State, the following provisions shall apply:
"(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal legislative authority, the obligations of the federal government shall to this extent be the same as those of Parties which are not federal States;
"(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the federation, bound to take legislative action, the federal government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;
"(c) A federal State party to this Convention shall, at the request of any other Contracting Party transmitted through the depositary, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of the Convention, showing the extent to which effect has been given to that provision by legislative or other action.
"Alternative II
"(1) If a Contracting State has two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.
"(2) These declarations shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.
"(3) If a Contracting State described in paragraph (1) of this article makes no declaration at the time of signature, ratification, acceptance, approval or accession, the Convention shall have effect within all territorial units of that State."
B. Amendments
2. An amendment was submitted to the article on the Federal State clause by Canada (A/CONF.97/C.2/L.2).
3. This amendment was to the following effect:
[Adopted as amended by an ad hoc working group: see Consideration, 7, below.]
C. Proceedings in the Second Committee
(i) Meetings
(ii) Consideration
5. At its 1st meeting, the Committee showed preference for Alternative II but decided to refer the matter to an informal working group composed of the representatives of Australia and Canada.
6. At the 3rd meeting, the Committee studied the proposal of the ad hoc working group composed of Australia and Canada, joined by Norway (A/CONF.97/C.2/L.13). This proposal suggested the addition of a fourth paragraph to Alternative II of Article B [became CISG article 93 ].
7. At the 3rd meeting, paragraph 1 of Alternative II was adopted as orally amended by Japan. The effect of this amendment is to add the words "acceptance, approval" after the words "signature, ratification". Paragraph 2 was adopted as drafted. Paragraph 3 was adopted as orally amended by Australia following a discussion pertaining to an oral amendment made by the Federal Republic of Germany, which was subsequently withdrawn. The paragraph as amended now reads:
8. At the 3rd meeting, the Committee studied the new paragraph 4 submitted by the ad hoc working group; it was adopted as orally amended by Canada. The purpose of this oral amendment was to substitute the indefinite article "a" for the definite article "the" in the fifth line (A/CONF.97/C.2/L.13). The paragraph as adopted reads as follows:
9. A proposal by Bulgaria to change the order of paragraphs (3) and (4) was referred to the Drafting Committee.
ARTICLE [C] [became CISG article 94 ] DECLARATION OF NON-APPLICATION OF THE CONVENTION
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article C [became CISG article 94 ] -- Declaration of non-application of Convention
"(1) A Contracting State may at any time declare that the Convention does not apply to the formation of contracts of sale or to contracts of sale between a party having a place of business in that State and a party having a place of business in another State because the two States apply to matters governed by this Convention the same or closely related rules.
"(2) If that other State is a Contracting State, such declarations shall be made jointly by the two Contracting States or by reciprocal unilateral declarations."
B. Amendments
2. Amendments to the article on Declaration of non-application of the Convention were submitted by the ad hoc working group composed of Canada, Finland, France and the Netherlands (A/CONF.97/C.2/L.10) and by the Netherlands (A/CONF.97/C.2/L.23).
3. These amendments were to the following effect:
"(2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-contracting States may at any time declare that the Convention does not apply to contracts of sale or to their formation where the parties have their places of business in those States.
"(3) If a State which is the object of a declaration made under paragraph (2) of this article subsequently ratifies, accedes to, or approves of the present Convention, the declaration shall remain in effect unless the ratifying, acceding or approving State declares that it cannot accept it."
[Adopted as to paragraphs I and 2; rejected as to paragraph 3: see Consideration, 5, below.]
[Adopted as amended: see Consideration, 5, below.]
C. Proceedings in the Second Committee
(i) Meetings
(ii) Consideration
5. At its 1st meeting the Second Committee established an ad hoc working group composed of Canada, Finland, France and the Netherlands. At the 3rd meeting the proposal of the ad hoc working group (A/CONF.97/C.2/L.10) was studied and paragraphs 1 and 2 of the proposal were adopted. At the 5th meeting, the new text of paragraph 3 proposed by the Netherlands (A/CONF.97/C.2/L.23) was adopted as amended orally following a statement by the Secretariat.
ARTICLE [C bis] PROPOSAL BY AUSTRALIA WITH RESPECT TO "DECLARATION OF APPLICATION"
A. Text submitted by Australia
1. The text submitted by Australia for a new article C bis [designed to change the provision that became CISG article 1] (A/CONF.97/C.2/L.3) provided as follows:
B. Amendments
2. No amendments to this proposal were submitted.
C. Proceedings in the Second Committee
(i) Meetings
3. The 2nd Committee considered Article C bis by Australia at its 1st and 2nd meetings on 17 and 18 March 1980.
(ii) Consideration
4. At its 2nd meeting, the Committee rejected Article C bis proposed by Australia.
ARTICLE [C bis AND C ter] PROPOSAL BY CZECHOSLOVAKIA
A. Text Submitted by Czechoslovakia
1. The text submitted by Czechoslovakia for two new articles (A/CONF.97/C.2/L.7) and described as C bis and C ter by the Chairman provided as follows:
"Any State may declare, at the time of the deposit of its instrument of ratification or accession, that it will apply article 8 [became CISG article 9 ] paragraph (2) only if a usage is not contrary to the Convention."
B. Amendments
2. No amendments to this proposal were submitted.
Proceedings in the Second Committee
(i) Meetings
3. The Second Committee considered Articles C bis and C ter proposed by Czechoslovakia at its 2nd meeting on 18 March 1980.
(ii) Consideration
4. At its 2nd meeting, the Committee rejected Article C bis and C ter proposed by Czechoslovakia.
ARTICLE [X] [became CISG article 95 ] DECLARATIONS RELATING TO CONTRACTS IN WRITING
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article X [became CISG article 95 ] -- Declarations relating to contracts in writing
"A Contracting State whose legislation requires a contract of sale to be concluded in or evidenced by writing may at the time of signature, ratification or accession make a declaration in accordance with article 11 [became CISG article 12 ] that any provision of article 10 [became CISG article 11 ], article 27 [became CISG article 29 ], or Part II of this Convention, which allows a contract of sale or its modification or abrogation or any offer, acceptance, or other indication of intention to be made in any form other than in writing shall not apply where any party has his place of business in a Contracting State which has made such a declaration."
B. Amendments
2. Amendments were submitted to the article on Declarations relating to contracts in writing by the Federal Republic of Germany (A/CONF.97/C.1/L.96) and the United Kingdom (A/CONF.97/C.1/L.88).
3. These amendments were to the following effect:
(i) Federal Republic of Germany (A/CONF.97/C.1/L.96):
[Modified adopted: see Consideration, 6, below.]
[Rejected: see Consideration, 6, below.]
[Adopted: see Consideration, 7, below.]
C. Proceedings in the Second Committee
(i) Meetings
(ii) Consideration
5. When it adopted its agenda, at its 1st plenary meeting, the Conference decided to entrust the consideration of Article (X) [became CISG article 95 ] to the First Committee. At its 2nd meeting, the Second Committee was informed that a subsequent meeting would be attended by the Rapporteur of the First Committee who would report on the decisions taken by the First Committee and inform the Second Committee of the matters remaining to be considered by the Second Committee. At its 3rd meeting, the Second Committee heard the report of the Rapporteur of the First Committee.
6. At its 3rd meeting, the amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.96) and the first part of the amendment by the United Kingdom (A/CONF.97/C.1/L.88) were orally amended by the Netherlands. This amendment was to the effect of striking the words "at the time of signature, ratification or accession" and replacing them by the words "at any time". This amendment was accepted. In referring the article to the Drafting Committee, the Committee agreed that the words "at any time" did not mean that declarations made in accordance with article X [became CISG article 95 ] could be applied retroactively.
7. The second part of the amendment by the United Kingdom (A/CONF.97/C.1/L.88) was adopted.
8. The Committee also drew the attention of the Drafting Committee to the fact that the word "abrogation" was to mean "termination by agreement".
ARTICLE [H] [became CISG article 97 ] DECLARATIONS
A. Text by the Secretary-General
1. The text prepared by the Secretary-General provided as follows:
"Article H [became CISG article 97 ] -- Declarations
"(1) Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance, approval or accession.
"(2) Declarations, and the confirmation of declarations, shall be in writing and shall be formally notified to the depositary.
"[(3) Declarations made under Article B [became CISG article 93 ] shall state expressly the territorial units to which the Convention applies.]
"[(4) If a Contracting State described in Article B [became CISG article 93 ] makes no declaration at the time of signature, ratification, acceptance, approval or accession, the Convention has effect within all territorial units of that State.]
"(5) Declarations take effect simultaneously with the entry into force of this Convention in respect of the State concerned, except for declarations of which the depositary receives formal notification after such entry into force. The latter declarations shall take effect on the first day of the month following the expiration of six months after the date of their receipt by the depositary except that reciprocal unilateral declarations under Article C [became CISG article 94 ] shall take effect on the first day of the month following the expiration of six months after the receipt of the latest declaration by the depositary.
"(6) Any State which has made a declaration under this Convention may withdraw it at any time by means of a formal notification in writing addressed to the depositary. Such withdrawal takes effect on the first day of the month following the expiration of six months receipt of the notification of the depositary
"(7) In the case of withdrawal of a declaration made under Article C of this Convention [became CISG article 94 ], such withdrawal also renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article."
B. Amendments
2. An amendment to the article on Declarations was submitted by the United Kingdom (A/CONF.97/C.2/L.6).
3. This amendment was to the effect of deleting paragraph 4 and of substituting the words "shall take" for the word "takes" in the third line of paragraph 6 and the words "shall render" for the word "renders" in the second line of paragraph 7.
[Adopted as to paragraph 4 and referred to the Drafting Committee as to paragraphs 6 and 7: see Consideration, 5, below.]
C. Proceedings in the Second Committee
(i) Meetings
4. The Second Committee considered the article on Declarations at its 2nd and 5th meetings on 18 and 25 March 1980.
(ii) Consideration
5. At its 2nd meeting, the Second Committee adopted paragraphs 1, 2 and 6 of the article on Declarations. At the 5th meeting, paragraphs 3 and 4 were deleted on an oral proposal by Canada. Paragraph 5 was approved after an oral amendment by France to suppress the six months' delay provided for by this paragraph had been rejected. Paragraphs 6 and 7 were approved and referred to the Drafting Committee with respect to the proposal by the United Kingdom to use the jussive future (A/CONF.97/C.2/L.6).
ARTICLE Y [became CISG article 98 ] -- PROPOSAL BY AUSTRIA WITH RESPECT TO RESERVATIONS
A. Text submitted by Austria
1. The text submitted by Austria for a new article Y (A/CONF.97/C.2/L.4) provided as follows:
B. Amendments
2. No amendments to this proposal were submitted.
C. Proceedings in the Second Committee
(i) Meetings
3. The Second Committee considered new Article Y [became CISG article 98 ] proposed by Austria at its 6th meeting on 26 March 1980.
(ii) Consideration
4. At its 6th meeting, the Second Committee adopted the new article Y [became CISG article 98 ] proposed by Austria with a new wording suggested by the Secretariat. The new article reads: