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Art. 63 |
373. The text of article 44, as adopted by the Working Group on the International Sale of Goods is as follows:
"The seller may request performance within an additional period of time of reasonable length. In such a case, the seller cannot during such period resort to any remedy for breach of contract, unless the buyer has declared that he will not comply with the request."
374. The Commission considered a proposal that the following paragraph be added to article 44:
"Where the seller has not requested performance, the buyer may request the seller to make known whether he will accept performance. If the seller does not comply within a reasonable time, the buyer may perform within the time indicated in his request. The seller cannot, during either period of time, resort to any remedy which is inconsistent with performance by the buyer. A notice by the buyer that he will perform within a specified period of time is assumed to include a request under this paragraph that the seller make known his decision."
375. It was stated that this proposal, which was modeled on articles 29(2) and 29(3); would thus achieve a balance between the rights of buyer and seller.
376. However, under another view the proposal was unnecessary and would merely complicate the text of the Convention. It was pointed out that the primary obligation of the buyer is to pay the price and, once this is paid, the seller loses the right to declare the contract avoided in respect of any late performance by the buyer unless the seller has avoided the contract before that late performance is rendered (article 45(2)).
377. The Committee did not retain this proposal.
Risk of loss or errors in transmission
378. The Committee was agreed that the rule in article 10 should be reversed in relation to declarations by the defaulting buyer that he will not comply with the request for performance by the seller. Consequently, the buyer would bear the consequences of any loss, delay or errors in transmission of the notice. The implementation of this principle was referred to the Drafting Group.
Decision
379. The Committee adopted, in principle, the present text of article 44 with the exception that the risk of loss, delay or errors in transmission of declarations of non-compliance by the defaulting buyer are placed on that buyer. The Committee therefore recommends that the Commission adopt the following text, now renumbered as article 45:
"Article 45
"(1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations.
"(2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in the performance." [page 52]
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Go to entire text of Report of the 1977 UNCITRAL Committee of the Whole I relating to draft Convention on International Sale of Goods
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Institute of International Commercial Law - Last updated July 26, 2007