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2008 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 62 case law [reproduced with permission of UNCITRAL] [*]

Article 62

The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.

OVERVIEW

1. Article 62 entitles the seller to require the buyer to perform its obligations. This remedy is generally recognised in civil law systems, whereas common law systems generally allow for the remedy (often under the designation "specific performance") only in limited circumstances.[1]

2. Article 62 is a remedy for sellers who have a special interest in performance by the buyer, particularly in performance of the obligation to take delivery of the goods. Examples of recourse to this remedy where a buyer has refused to take delivery, however, are rare in case law.[2] Cases in which article 62 is invoked as a remedy for the buyer's failure to pay the purchase price, on the other hand, are numerous.[3]

Limitations on the seller's right to require performance

3. The right to require performance under article 62 is subject to two kinds of limitations. One such limitation is expressed in article 62 itself: a seller is deprived of the right if he has resorted to a remedy that is inconsistent with requiring performance, as where the seller has declared the contract avoided (article 64) or fixed an additional period of time for performance (article 63). The second limitation derives from article 28 of the Convention, under which a court is not bound to order specific performance on behalf of a seller, even if that would otherwise be required under article 62, if the court would not do so under its domestic law in respect of similar contracts not governed by the Convention.


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.UNCITRAL.org/pdf/english/clout/CISG_second_edition.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

In addition, this presentation introduces each section of the UNCITRAL Digest with a Google search button. This is to help you access doctrine (relevant material from the over 1,200 commentaries, monographs and books on the CISG and related subjects that we present on this database) as well as the texts of the cases that UNCITRAL cites in its Digests and that we present in our updates to UNCITRAL's Digests.

1. For further comments on matter, see the Digest for article 28, para 1.

2. For a general statement on the remedy, see [GERMANY Oberlandesgericht München 8 February 1995 (Automobile case)] (see full text of the decision).

3. See [GERMANY Landgericht Münchengladbach 15 July 2003 (Filters case)]; [BELGIUM Hof van Beroep Gent 2 December 2002 (Clothing case)]; [ARGENTINA Cámara Nacional de Apelaciones en lo Comercial de Buenos Aires 21 July 2002 (Malt case)]; [GERMANY Landgericht München 27 February 2002 (Globes case)]; [GERMANY Landgericht Erfurt 29 July 1998 (Shoe soles case)]; [GERMANY Oberlandesgericht München 9 July 1997 (Leather goods case)]; [GERMANY Landgericht Bielefeld 2 August 1996 (Pig case)]; [GERMANY Oberlandesgericht Frankfurt a.M. 31 March 1995 (Copper and nickel electrolyte cathodes case)]; [GERMANY Oberlandesgericht München 8 March 1995 (Copper-nickel electrolyte cathodes case)]; [ICC International Court of Arbitration, Award 7197 of 1992 (Failure to open letter of credit and penalty clause case)].


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