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CISG
number
48


LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

20th meeting

Monday, 24 March 1980, at 3 p.m.

Chairman: Mr. LOEWE (Austria)

(. . .)

Article 44 [became CISG article 48 ]
(A/CONF.97/C.1/L.140, L.141, L.142, L.146, L.148, L.160, L.164, L.180, L.198, L.203

[Bulgaria (A/CONF.97/C.1/L.160): Delete in paragraph (1) of article 44 [became CISG article 48 ] the words:

"Unless the buyer has declared the contract avoided in accordance with article 45 [became CISG article 49 ]".]

37. Mr. STALEV (Bulgaria), introducing the Bulgarian amendment to article 44 [became CISG article 48 ](A/CONF.97/C.1 /L.160), said that the existing text did not achieve a proper balance between the seller's interests and those of the buyer, since article 44(1) [became CISG article 48(1) ] permitted the buyer to declarethe contract avoided immediately in the event of non-conformity which amounted to a fundamental breach of contract without giving the seller an opportunity to remedy his failure to perform. It would be more satisfactory if the buyer could, within a reasonable time, obtain the goods specified in the contract without having to request substitute goods, which could cause the seller considerable loss if he had to bear high transport costs.

[Federal Republic of Germany (A/CONF.97/C.1/L.140):

Revise paragraph (2) of article 44 [became CISG article 48 ] to read as follows:

"(2) Unless the buyer has fixed an additional period of time in accordance with paragraph (1) of article 43 [became CISG article 47 ], the seller may request the buyer to make knownwhether he will accept performance within the time indicated in the request. If the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller."]

38. Mr. KLINGSPORN (Federal Republic of Germany) said that he shared the Bulgarian representative's view; indeed, his delegation had submitted an identical proposal (A/CONF.97/C.1/L.140). The existing text created a situation which was neither satisfactory nor logical. If, for example, the seller delivered a machine on the date fixed and the machine, once it was installed, failed to work in a satisfactory manner, that should not be regarded as a fundamental breach of contract and the buyer should not be able to declare the contract avoided if the seller was prepared to remedy the fault within a reasonable time. The seller's right to remedy his failure to perform should prevail over the buyer's rights. The situation should also be clarified in respect of article 45 [became CISG article 49 ].

39. Mr. FOKKEMA (Netherlands) said that he was concerned about the correct interpretation of article 44(1) [became CISG article 48(1) ] and the consequences of the proposed deletion. Rather than adopt the amendment, it would be preferable to specify that, in a case such as that described by the representative of the Federal Republic of Germany, the buyer could not declare the contract avoided if the necessary remedy could be applied within a reasonable time without causing loss to the buyer and if no fundamental breach of contract had occurred.

40. Mr. ROGNLIEN (Norway) supported the view expressed by the representatives of Bulgaria and the Federal Republic of Germany and thought that the amendment to paragraph 1 should be adopted. The existing text of article 44 [became CISG article 48 ] was confusing and might be misleading owing to the combined reference to avoidance and to the words "if he can do so without such delay as will amount to a fundamental breach of contract". The said delay was already a part of the fundamental breach under article 45 [became CISG article 49 ] on which the right of avoidance was based. He referred to ULIS 1964, article 43, and the consolidated remedy system which UNCITRAL had adopted. Even if there were a fundamental lack of conformity at the time of delivery, such a serious defect would not justify an immediate avoidance if it could be cured without an intolerable delay. Article 44(1) [became CISG article 48(1) ] as worded at present might be taken to imply that the buyer could declare the contract avoided even if a fundamental breach had not yet fully developed in time.

41. Mr. LOW (Canada) said that he was in favour of the proposal by Bulgaria and the Federal Republic of Germany concerning article 44(1) [became CISG article 48(1) ]. He had already had occassion to express his concern at the fact that a minor breach might be invoked to justify avoidance of the contract by the buyer under article 45 [became CISG article 49 ] without the seller's having any possibility to remedy that breach. The amendment would remove that danger. If it was not adopted, Canada might reserve the right to put forward other proposals along the same lines.

42. Mr. SAMI (Iraq) thought that the amendment under consideration would have the effect of depriving the buyer of the right to avail himself of article 45 [became CISG article 49 ]. The buyer should be able to declare the contract avoided either if the seller failed to perform all his obligations within the period of time fixed or if a fundamental breach of contract had occurred and the buyer had fixed a period of time for the seller to remedy the breach in question. He could not support the amendment proposed by Bulgaria and the Federal Republic of Germany.

43. Mr. BENNETT (Australia) said that he could not support the Bulgarian proposal. Like the representative of Canada, he thought that the Convention should not permit one of the parties to the contract to declare the contract avoided on the grounds of a failure to perform by the other party which was of minor importance. The buyer's right to declare the contract avoided was governed by article 45 [became CISG article 49 ]. If the contract was avoided under article 45 [became CISG article 49 ], the seller could not remedy the failure. In such a case, therefore, he had to act before the contract was avoided. For that reason, the first phrase of article 44(1) [became CISG article 48(1) ] was useful and should be kept.

The representative of Norway had expressed the view that article 44(1) [became CISG article 48(1) ] would suffice with the first phrase deleted so long as it was made clear that a delay could amount to a fundamental breach. It should not be forgotten, however, that a contract could be avoided on the ground of a fundamental breach which had nothing to do with late delivery.

44. Mr. FELTHAM (United Kingdom) said that he shared the view of those who felt unable to accept the amendment proposed by Bulgaria and the Federal Republic of Germany. In support of its amendment, the latter delegation had mentioned the example of a machine which had been delivered but did not work. If the machine could be repaired within a few days, there was no fundamental breach, which was what article 44 [became CISG article 48 ] was concerned with. Conversely, the case should be considered where the seller had delivered a machine which in no way fulfilled the buyer's expectations, whereupon the latter lost confidence and did not even wish the seller to attempt to repair it. The buyer should be able to declare the contract avoided at that point without having to listen to the seller's arguments. Hence, the first phrase of article 44(1) [became CISG article 48(1) ] should be kept.

The meeting was suspended at 4.30 p.m. and resumed at 4.50 p.m.

45. Mr. KRISPIS (Greece) reserved his delegation's position on the substance of the question raised in the amendment proposed by Bulgaria and the Federal Republic of Germany. He pointed out, however, that since the proposed rule stated that the seller "may" remedy, the deletion of the first phrase of paragraph 1 would not bring about the result which those two delegations wished to achieve; the article that should be amended in order to achieve that result was article 45 [became CISG article 49 ]. The Committee should therefore adopt a decision on the substance of their proposal rather than on the deletion of the first phrase of article 44(1) [became CISG article 48(1) ].

46. Mr. HOSOKAWA (Japan) remarked that under article 45(1)(a) [became CISG article 49(1)(a) ], the buyer could declare the contract avoided even if the seller was able to remedy his failure to perform by virtue of article 44(1) [became CISG article 48(1) ]. His delegation's own amendment (A/CONF.97/C.1/L.164) was intended to give the seller the possibility, under article 44 [became CISG article 48 ], of remedying a breach whether that breach was or was not a fundamental one. The explanations given by the delegation of the Federal Republic of Germany showed that the purpose of its amendment was exactly the same. He would therefore be prepared to support the proposal of the Federal Republic of Germany should the Japanese proposal not be adopted in its entirety.

47. Mr. HONNOLD (United States of America) supported the proposal to delete the first phrase of article 44(1) [became CISG article 48(1) ]. An effort should be made to establish a balance between the seller's right to remedy and the buyer's right to avoid. The first phrase of paragraph 1 might infringe the seller's right to remedy. The buyer's right to avoid had to be protected of course, but article 45 [became CISG article 49 ] did all that was necessary in that respect, since the seller was required to remedy in full.

48. Mr. HJERNER (Sweden) noted that the amendment proposed by the Federal Republic of Germany and Bulgaria gave rise both to a question of substance and to one of form and delegations were interpreting the amendment in different ways. As to substance, his delegation firmly supported the amendment. The seller's right to remedy must, in one way or another, prevail over the buyer's right to avoidance of the contract. In order to achieve that end it would not, however, suffice to delete the first phrase of article 44(1) [became CISG article 48(1) ]. The essential thing was to define precisely what constituted a fundamental breach. If the failure to perform could be easily remedied, the breach could not be a fundamental one unless there was unreasonable delay. As a first choice, therefore, he would support the Japanese proposal in its entirety (A/CONF.97/C.1/L.164); failing the adoption of that proposal, he would wish draft article 44 [became CISG article 48 ] to remain unchanged.

49. The second part of the Bulgarian proposal, calling for the deletion of paragraphs 2, 3 and 4 of article 44 [became CISG article 48 ], touched upon matters other than the question of fundamental breach. He wanted to make sure that, for the purposes of the discussion, the two parts of the proposal were separate.

50. Mr. WAGNER (German Democratic Republic) said that he was able to support the amendment to article 44(1) [became CISG article 48(1) ] proposed by Bulgaria and the Federal Republic of Germany. The amendment did not restrict the buyer's right to avoid, which was protected by article 45 [became CISG article 49 ], but was merely designed to specify more precisely the seller's right to remedy.

51. Mr. KUCHIBHOTLA (India) said that, in his view, the amendment proposed by Bulgaria and the Federal Republic of Germany would definitely restrict the buyer's right to avoid. He therefore could not support the amendment.

52. Mr. ZIEGEL (Canada) remarked that in the case of contracts for the sale of durable goods, the seller was frequently allowed to remedy any failure to perform his obligations. In practice, therefore, the seller's right to remedy was quite as well protected as the buyer's right to avoid. Nevertheless, the Convention should recognize the seller's right to remedy in principle and in a general form. The present wording of article 44 [became CISG article 48 ] did not in any way cover the case where, for example, the buyer might have lost confidence, because of an explosion, in the machine which had been delivered and did not wish to give the seller an opportunity to remedy. If the Committee accepted the general principle of the seller's right to remedy, it might perhaps be necessary to set up an ad hoc working group to draft the corresponding provision.

53. Mr. SZÁSZ (Hungary) said that he supported the Bulgarian amendment and agreed with the idea of deleting the first phrase of article 44(1) [became CISG article 48(1) ]. The connection between the seller's right to remedy, dealt with in article 44 [became CISG article 48 ], and the buyer's right to avoid, covered by article 45 [became CISG article 49 ], should, however, also be mentioned in article 45 [became CISG article 49 ].

54. He was under the impression that the right to remedy would henceforth be granted under article 44 [became CISG article 48 ], not only in the event of non-conformity, but also in the event of delay. If that was so, the words "the date for" in the second and third lines of paragraph 1 should be deleted, so that the passage would read: ". . . even after delivery . . .".

55. Mr. BOGGIANO (Argentina) noted that the existing text of article 44 [became CISG article 48 ] envisaged the case of fundamental breach within the meaning of article 23 [became CISG article 25 ]. The example mentioned by the representative of the Federal Republic of Germany was one of failure on the part of the seller to perform his obligations, but not of fundamental breach. Once a fundamental breach had occurred, the buyer should be able to declare the contract avoided, to negotiate a new contract and to negotiate a possible remedy. Where there was presumption of fundamental breach, and where such breach could give rise to avoidance of the contract, freedom of trade required that the seller should be able to declare the contract avoided; it would not be right, therefore, to delete the phrase part of article 44(1) [became CISG article 48(1) ].

56. Mr. EYZAGUIRRE (Chile) also said that, in his view, the first phrase of article 44(1) [became CISG article 48(1) ] should be kept, so as to preserve the buyer's right to avoid the contract on whatever ground. If that right of the buyer's were undermined, the obligation to remedy would lose its point.

57. Mr. BORTOLOTTI (Observer for the International Chamber of Commerce) said that the problem should not really arise except in cases where the buyer had genuine grounds for avoidance. Where it was not known whether the grounds for avoidance were valid, would the seller have to remedy in any case or would he have to wait at the risk of being unable to remedy after a certain time and of suffering loss himself?

58. Mr. KLINGSPORN (Federal Republic of Germany) said that some delegations had pointed out that the deletion of the first phrase of article 44(1) [became CISG article 48(1) ] would not suffice to give the seller's right to remedy precedence over the buyer's right to avoid. His delegation had, however, submitted an amendment to article 45 [became CISG article 49 ] (A/CONF.97/C.1/L.153) which met that point.

59. Mr. STALEV (Bulgaria) said that his delegation, whose proposal was aimed solely at ensuring a better balance in the protection given to the buyer's and the seller's interests, was prepared to consider any suggestions designed to improve that proposal. Furthermore, since the proposal dealt exclusively with cases of non-conformity, the suggestion made by the Hungarian representative with regard to cases of delay appeared to be justified.

60. Mr. HJERNER (Sweden) said that it might perhaps be advisable to set up a working group, as proposed by the representative of Canada, for the purpose of drafting a new text taking into account all the suggestions that had been made.

61. The CHAIRMAN pointed out that the Canadian representative had only suggested setting up a working group if the Committee accepted the principle behind the amendments by the Federal Republic of Germany and Bulgaria.

62. Mr. HJERNER (Sweden) supported the proposal by Canada, but suggested that a working group should be set up before the Committee took a decision.

63. Mr. STALEV (Bulgaria) supported the Swedish proposal.

64. Mr. KLINGSPORN (Federal Republic of Germany) would prefer it if a working group were not set up until the Committee had taken an indicative vote on the question of principle, namely, whether in article 44 [became CISG article 48 ] the seller's right to remedy should prevail over the buyer's right of avoidance or whether, on the contrary, the interests of the buyer should be explicitly protected.

65. The CHAIRMAN suggested that the Committee should take an indicative vote on the principle behind the proposals by Bulgaria (A/CONF.97/C.1/L.160) and the Federal Republic of Germany (A/CONF.97/C.1/L.140), on the understanding that the vote would not affect the proposals themselves.

66. The principle behind the proposals by Bulgaria and the Federal Republic of Germany was supported by 14 delegations and opposed by 18.

67. Mr. ROGNLIEN (Norway) asked for an explanation of the implications of the decision which had just been taken.

68. The CHAIRMAN explained that article 44 [became CISG article 48 ] remained unchanged, that the proposals had not been rejected as such and that a new proposal couched in the same or different terms could be submitted. Delegations were quite free to set up a working group on the question if they wished.

69. Mr. SAMI (Iraq) was of the opinion that a final decision should be taken as the Committee had no new proposal before it and no working group had been formally set up.

70. Mr. FOKKEMA (Netherlands) said that it was apparent from the vote that all delegations wished to adjourn consideration of the proposal.

71. The CHAIRMAN pointed out that, under rule 24 of the rules of procedure, a representative was entitled to move the adjournment of the debate on the question under discussion. Apart from the proposer of the motion, two representatives could speak in favour of the adjournment and two against, after which the motion would be put to the vote immediately.

72. Mr. FOKKEMA (Netherlands) moved that the debate should be adjourned.

73. Mr. STALEV (Bulgaria) seconded the motion by the representative of the Netherlands.

74. Mr. SAMI (Iraq) considered that the two amendments before the Committee had been examined at length and that it would be a waste of time to prolong the debate. A vote should therefore be taken immediately.

75. Mr. MANTILLA-MOLINA (Mexico) said that a large number of speakers had taken part in the discussion and that the Committee was well able to vote on the amendments. An adjournment would simply impede the progress of the Committee's work. Moreover, it would be best to avoid indicative votes, which were not provided for in the Committee's rules of procedure and took up time to no good purpose.

76. The CHAIRMAN put to the vote the motion to adjourn the debate on the amendments by Bulgaria and the Federal Republic of Germany (A/CONF.97/C.1/L.160, L.140).

77. The motion for adjournment was adopted by 19 votes to 15.

78. The CHAIRMAN invited the Committee to consider the amendment by the United States of America (A/CONF.97/C.1/L.203).

[United States of America (A/CONF.97/C.1/L.203):

Revise the first sentence of paragraph (1) of article 44 [became CISG article 48] to readn 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."

Alternatively, 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 of the buyer under article 42 [became CISG article 46 ], remedy at his own expense . . ."]

79. Mr. FARNSWORTH (United States of America) said that there was a close link between article 42 [became CISG article 46 ], on performance by the seller of his obligations, and article 44 [became CISG article 48 ], on the seller's right to remedy failure to perform. The changes which his delegation would like to make in article 44 [became CISG article 48 ] were intended to clarify that link. On the one hand, under article 42 [became CISG article 46 ], the buyer could require the seller to remedy a lack of conformity or to deliver substitute goods. On the other, under article 44 [became CISG article 48 ], the seller could remedy failure to perform or deliver substitute goods. What would happen if the buyer, claiming his rights under article 42 [became CISG article 46 ], required substitute goods and the seller, basing himself on article 44 [became CISG article 48 ], offered to remedy? It would seem reasonable to allow the seller to do so, and that was the purpose of his delegation's amendment. It should be noted, moreover, that the two alternatives put forward differed very little; it was the general idea underlying them that was important.

80. Mr. MANTILLA-MOLINA (Mexico) asked that consideration of the United States amendment should be adjourned as it was closely connected with the amendments submitted by Bulgaria and the Federal Republic of Germany. The proposals were in fact at variance with each other. The amendments suggested by the last two countries were intended to allow the buyer to require performance even if the lack of conformity constituted a fundamental breach of contract, whereas the amendment submitted by the United States would on the contrary strengthen the seller's rights. Moreover, the Spanish text of the amendment had not yet been circulated.

81. The CHAIRMAN announced that consideration of the United States amendment was adjourned and invited the Committee to consider the amendment by Singapore (A/CONF.97/C.1/L.148).

[Singapore (A/CONF.97/C.1/L.148):

Replace the words "without such delay as will amoumt to a fundamental breach of contract" in the first sentence of paragraph (1) by the words "without unreasonable delay"]

82. Mr. KHOO (Singapore) explained that his amendment was intended to make it easier to understand the principle stated in article 44(1) [became CISG article 48(1) ]. As it was now worded, seller who committed a breach of contract could not remedy it until the consequences of the delay in performance had been assessed. As the paragraph did not make it clear how to assess delay or how to determine whether it represented a fundamental breach of contract, it would be simpler to allow the seller to remedy provided he could do so without unreasonable delay.

83. Mr. SEVÓN (Finland) said that the introduction of the idea of unreasonable delay would enable the seller to defer performance of his obligations even longer. The seller was bound to remedy failure to perform before there was a fundamental breach of contract. If the expression "unreasonable delay" was used, the period during which the seller was entitled to remedy could in certain cases be extended. The only positive aspect of the proposal was that it shortened the time-limit allowed in certain cases.

84. Mr. HJERNER (Sweden) supported the amendment by Singapore.

85. Mr. KIM (Republic of Korea) considered that the idea of fundamental breach was a guarantee for the buyer and should not be dropped.

86. Mr. MANTILLA-MOLINA (Mexico) suggested adjourning consideration of the amendment by Singapore, since it was related to the other proposals on which the debate had already been postponed. In terms of substance, the amendment introduced the new idea of unreasonable delay, which was difficult to define, and discarded that of fundamental breach, which had already been defined in article 23 [became CISG article 25 ].

87. Mr. BENNETT (Australia) said he was of the same opinion as the representative of Mexico and did not think it was useful to discuss the matter further.

88. Mr. STALEV (Bulgaria) proposed that delegations in favour of amending article 44(1) [became CISG article 48(1) ] should work out a compromise text as quickly as possible.

89. The CHAIRMAN suggested that consideration of article 44 [became CISG article 48 ] as a whole should be adjourned, while hoping that the adjournment would not delay the work of the Committee too much.

90. It was so agreed.








CISG
number
48

Summary Records of Meetings of the First Committee

22nd meeting

Tuesday, 25 March 1980, at 3 p.m.

Article 44 [became CISG article 48 ] (continued)
(A/CONF.97/C.1/L.80, L.140, L.141, L.142, L.146, L.148, L.160, L.164, L.180, L.198, L.203, L213)

(. . .)

[Bulgaria, Canada, German Democratic Republic, Germany, Federal Republic of, Netherlands, Norway, United States of America (A/CONF.97/C.1/L.213).

Alternative I:

Paragraph (1).

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

"(1) The seller may remedy at his own expense the failure to perform his obligations only if this is consistent with the reasonable interests of the buyer, does not cause him unreasonable inconvenience and the resulting delay does not amount to a fundamental breach of contract.The buyer retains any right to claim damages as provided for in this Convention."

Alternative II:

Paragraph (1).

Revise paragraphs (1) and (2) of article 44 [became CISG article 48 ] to read as follows:

"(1) Subject to article 45 [became CISG article 49 ] 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 unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. The buyer retains any right to claim damages as provided for in this Convention.

"(2) The seller may request the buyer to make known whether he will accept a remedy of his failure to perform, unless the buyer has fixed an additional period of time in accordance with article 43 [became CISG article 47 ] or declared the contract avoided in accordance with article 45 [became CISG article 49 ]. If the buyer does not reply within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller."

Alternative III:

At the end of article 45(1)(a) [became CISG article 49(1)(a)], add the following words:

" . . . and the seller does not remedy the failure in accordance with article 44 [became CISG article 48 ]."]

6. Mr. STALEV (Bulgaria) explained that the amendment was intended to guarantee the right of the seller to remedy a failure to perform while at the same time safeguarding the lawful interests of the buyer, who must be assured that the contract would be executed. That was the basic difference between it and the former text. If the proposal was adopted, his delegation would be ready to agree to the amendment by Pakistan to delete the remaining paragraphs.

7. The CHAIRMAN asked whether the various alternatives proposed in document A/CONF.97/C.1/L.213 had been ranked in order of preference, and whether the authors had tried to present the various points of view or whether they had decided to leave it to the Committee to settle the point in the last resort.

8. Mr. SCHLECHTRIEM (Federal Republic of Germany) explained that alternative III was intended to clarify alternative I and that in fact the two constituted a single proposal.

9. Mr. ROGNLIEN (Norway) said that alternative I should be voted on before alternative II. The double reference to article 45 [became CISG article 49 ] and fundamental breach as it appeared in the original text of article 44(1) [became CISG article 48(1) ], had been thought inappropriate; the working group had therefore tried to amend the wording of the first paragraph in two ways: alternative I deleted the reference to avoidance, while keeping the reference to fundamental breach. Alternative II, on the contrary, deleted the reference to the latter while making article 44 [became CISG article 48 ] subject to article 45 [became CISG article 49 ], since the buyer must retain the right to declare the contract avoided. In addition, the idea of unreasonable delay had been introduced instead of delay "not amounting to a fundamental breach". The proposed formula "unreasonable delay" was more flexible and offered a remedy, suspending the buyer's actual avoidance of the contract under article 45 [became CISG article 49 ]. With respect to paragraph 2 of alternative II, if the buyer had declared the contract avoided in accordance with article 45 [became CISG article 49 ], the seller had no means of remedy. Paragraph 2 of article 44 [became CISG article 48 ] provided for a period of time during which the buyer could not resort to any remedy which was inconsistent with performance by the seller. The provision had been kept in paragraph 2 of alternative II, but the rights of the seller had been limited, to the advantage of the buyer by a new reference to article 43 [became CISG article 47 ].

10. The CHAIRMAN asked the sponsors of the amendments to article 44 [became CISG article 48 ] submitted earlier if they wished to maintain their proposals or if they considered that joint amendment A/CONF.97/C.1/L.213 replaced them.

11. Mr. FARNSWORTH (United States), Mr. OZERDEN (Turkey), Mr. INAAMULLAH (Pakistan), Mr. ROGNLIEN (Norway), Mr. SEVÓN (Finland) and Mr. HOSOKAWA (Japan) said they wished to maintain their amendments (A/CONF.97/C.1/L.203, L.146, L.142 and L.80, L.141, L.164).

12. Mr. STALEV (Bulgaria) and Mr. HERBER (Federal Republic of Germany) withdrew their amendments (A/CONF.97/C.1/L.160, L.140).

13. Mr. KHOO (Singapore) explained that he would only withdraw his amendment if alternative II proposed in document A/CONF.97/C.1/L.213 was adopted.

14. Mr. FOKKEMA (Netherlands) said that he was in favour of alternative II.

15. Mr. KRISPIS (Greece) proposed that the words "Subject to article 45" [became CISG article 49 ] at the beginning of paragraph I of alternative II, which he thought unclear, should be replaced by the words "Subject to the contract not having been declared avoided in accordance with article 45 [became CISG article 49 ] ".

16. The CHAIRMAN proposed that the Committee should revert to the amendment suggested by Greece if alternative II was adopted.

17. Mr. HJERNER (Sweden) said that alternative I introduced conditions and new elements that were unacceptable to his delegation. Paragraph I of alternative II was still very close to the original wording of article 44 [became CISG article 48 ]; paragraph 2 on the other hand departed from paragraph 2 of article 44 [became CISG article 48 ], which concerned the case, frequently met with, in which the seller, having delayed in delivering the goods, asked the buyer whether he was nevertheless willing to accept delivery. He was therefore not in favour of paragraph 2 of alternative II.

18. The CHAIRMAN put alternative I of amendment A/CONF.97/C.1/L.213 to the vote.

19. Alternative I was rejected.

20. The CHAIRMAN put to the vote paragraph I of alternative II, which would replace paragraph I of article 44 [became CISG article 48 ].

21. Paragraph 1 of alternative II was adopted.

22. The CHAIRMAN put to the vote paragraph 2 of alternative II, which would replace paragraph 2 of article 44 [became CISG article 48 ].

23. Paragraph 2 of alternative II was rejected.

24. Mr. CUKER (Czechoslovakia) asked whether the Committee was to take a decision on the amendment suggested by the Greek representative to the wording of the new paragraph 1 of article 44 [became CISG article 48 ].

25. The CHAIRMAN noted that opinion in the Committee seemed to be divided, some delegations having spoken in favour of the new article 44 [became CISG article 48 ] in its present wording while other delegations seemed to want a change.

26. Mr. KRISPIS (Greece) wished it to be placed on record that, as far as his delegation was concerned, the words "Subject to article 45" [became CISG article 49 ] at the beginning of the new paragraph 1 of article 44 [became CISG article 48 ] should be understood as meaning: "Subject to the contract not having been declared avoided in accordance with article 45" [became CISG article 49 ].

27. Mr. CUKER (Czechoslovakia) associated himself with the Greek representative's comments. The new wording of paragraph 1 was open to a number of interpretations. It would therefore be desirable to refer the text to the Drafting Committee for the necessary modifications.

28. Mr. BONELL (Italy) did not share the views of the representatives of Greece and Czechoslovakia. The amendment proposed by Greece would alter the text of paragraph 1 of article 44 [became CISG article 48 ] considerably.

29. The CHAIRMAN said that, in view of the limited support for the Greek amendment, he would take it, if there was no objection, that the Committee wished to reject it.

30. It was so decided.


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