2008 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods
Digest of Article 28 case law [reproduced with permission of UNCITRAL] [*]
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.
OVERVIEW: Meaning and purpose of the provision
1. The article constitutes a compromise between legal systems that deal differently with the right of a party to claim specific performance of the contract. According to article 28, a court is not obliged to grant specific performance under the Convention if it would not do so for similar sales contracts under its domestic law.
2. "Specific performance" means requiring the other party to perform its obligations under the contract through court action. For example, the buyer may obtain a court order requiring the seller to deliver the quantity and quality of steel contracted for.
3. There is little case law on this provision; only one case has been reported thus far. In that case, a court stated that that where the Convention entitles a party to claim specific performance, article 28 allows the seized court to look to the availability of such relief under its own substantive law in a like case. If the national law would also grant specific performance in the case, no conflict with the Convention and no problem arises. If the national law would, however, disallow specific performance, alternative relief -- in most cases, damages -- could be granted instead. Article 28, however, merely provides that the court "is not bound" to adopt the solution of its national law regarding specific performance in the context of an international sale of goods governed by the Convention.
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1. [UNITED STATES Federal District Court, Northern District of Illinois, 7 December 1999 (Magellan International v. Salzgitter Handel)].
2. [UNITED STATES Federal District Court, Northern District of Illinois, 7 December 1999 (Magellan International v. Salzgitter Handel)] is apparently the only CISG case to consider this issue.
3. [UNITED STATES Federal District Court, Northern District of Illinois, 7 December 1999 (Magellan International v. Salzgitter Handel)]: Simply put, [CISG Article 28] looks to the availability of such relief under the UCC.
4. That was the outcome in [UNITED STATES Federal District Court, Northern District of Illinois, 7 December 1999 (Magellan International v. Salzgitter Handel)].