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Source: Doc. B(1) Reproduced from UNCITRAL Yearbook VIII (1977), A/32/17, pages 25-64

EXCERPT FROM ANNEX I

Report of Committee of the Whole I relating to the
draft Convention on the International Sale of Goods

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CISG
number
Art. 47

Article 28

260. The text of article 28 as adopted by the Working Group on the International Sale of Goods is as follows:

"The buyer may request performance within an additional period of time of reasonable length. In such a case, the buyer cannot during such period resort to any remedy for breach of contract, unless the seller has declared that he will not comply with the request."

Effect of request for performance on remedies

261. The Committee was of the view that article 28 was intended to prevent the buyer from relying on any remedies for breach of contract during the additional period of time that he had fixed for performance. After the expiration of this period the buyer could resort to any of the remedies available to him. However, a number of representatives considered that this result may not flow from the present wording of article 28. Accordingly, the matter was referred to the Drafting Group together with a number of drafting suggestions which sought to make it clear that the purpose of article 28 was to regulate the power of the buyer to fix an additional period for performance and to define the consequences of such a request on the buyer's remedies during that period.

Nature of the additional period

262. The Commission considered a proposal that the following text be added as paragraph (2) to article 28:

"(2) Where the buyer requests the seller to perform, without fixing an additional period referred to in paragraph (1), the request is assumed [, for the purpose of the provisions thereof,] to include the fixing of a period of reasonable length."

263. In support of this proposal it was stated that the effect of a request by the buyer for performance by the seller which did not state an additional period of time for performance should be the same as a request which stated an additional specific period of time. However, a request for performance which did not state a fixed period and which was not acceded to by the seller should not authorize the buyer to avoid the contract under article 30(1)(b), unless that failure to perform constituted a fundamental breach of contract under article 30(1)(a),

264. It was generally considered that the essence of the Nachfrist principle embodied in article 28 was that the buyer had requested performance within a fixed additional period of time which was also of reasonable length. The purpose of such a period was to enable the buyer to specify the period during which he could still accept performance. The only limit to the length of the period chosen by the buyer was that it be of reasonable length. It was because the fixed additional period was of reasonable length that failure on the part of the seller to comply with that request enabled the buyer to declare the contract avoided under article 30(1)(b).

265. The Committee accordingly did not retain the proposal to insert a provision into article 28 which would enable the mechanism of the article to be used in relation to requests for performance which did not fix an additional period of time.

266. The Committee referred article 28 to the Drafting Group to ensure that it reflected the fact that the additional period be of fixed duration and that the fixed period be of reasonable length.

267. The Committee also referred to the Drafting Group a proposal that a declaration by the seller that he will not comply with a request by the buyer for performance must arrive before it can be relied upon by the seller.

Decision

268. The Committee recommends that the Commission should adopt the following text, now renumbered as article 29:

"Article 29

"(1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations.
"(2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in the performance." [page 44]

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Pace Law School Institute of International Commercial Law - Last updated July 17, 2007
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