LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

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[United States (A/CONF.97/C.1/L.203): [relates to provision that became CISG article 46 ]:

Revise the first sentence of paragraph (1) of article 44 [became CISG article 48 ] to read as follows:

"(1) Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ] and regardless of any right of the buyer under article 42 [became CISG article 46 ], the seller may even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without such delay as will amount to a fundamental breach of contract and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer."

AIternatively, the first sentence of paragraph (1) may commence as follows:

"(1) Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ], the seller may even after the date for delivery and regardless of any right ofthe buyer under article 42 [became CISG article 46 ], remedy at his own expense . . ."]

31. The CHAIRMAN drew the attention of the Committee to the amendment put forward by the United States delegation (A/CONF.97/C.1/L.203).

32. Mr. FARNSWORTH (United States of America) explained that his delegation had submitted its amendment because it seemed essential to include in the text a provision stating the right of the seller to remedy, in the manner chosen by him, his failure to perform his obligations. The Committee had amended article 42 [became CISG article 46 ] so that it should be quite clear that the buyer could, in the case of a fundamental breach, require the seller to perform, either through the delivery of substitute goods or by remedying the defect in the goods. It could happen, however, that the buyer might require performance in a certain manner whereas the seller would prefer to acquit himself of his obligations in another manner. The seller should therefore be permitted to determine the manner in which he intended to remedy his failure to perform. The United States amendment proposed two alternatives. The choice between the two was purely a drafting matter and should be left to the Drafting Committee.

33. The CHAIRMAN put the United States amendment (A/CONF.97/C.1/L.203) to the vote.

34. There were 10 votes in favour and 10 against.

35. The amendment was not adopted.

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