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CISG
number
79


LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

27th meeting

Friday, 28 March 1980, at 10 a.m.

Chairman: Mr. LOEWE (Austria)

(. . .)

Article 65 [became CISG article 79 ]
(A/CONF.97/C.1/L.191/Rev.1, L.120, L.190, L.186, L.223, L.208, L.217)

(. . .)

[Denmark (A/CONF.97/C.1/L.186):

Reword paragraph (2) as follows:

"(2) If the party's failure is due to the failure by his supplier or a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the supplier or the third person would be so exempt if the provision of that paragraph were applied to him."]

[Finland (A/CONF.97/C.1 /L.190):

Reword paragraph (2) as follows:

"(2) If the party's failure is due to the failure by his supplier or a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if he is exempt under paragraph (1) of this article and if the supplier or the third person would be so exempt if the provisions of that paragraph were applied to him."]

[German Democratic Republic (A/CONF.97/C.1/L.217):

Insert, in the above amendments by Denmark and Finland, in both cases after the word "supplier" the word "carrier".]

[Turkey (A/CONF.97/C.1/L.210):

Delete paragraph (2).]

[Pakistan (A/CONF.97/C.1/L.223):

At the end of paragraph (2), add the words "provided the contract expressly or impliedly envisaged subcontracting by the party".]

21. Mr. ADAL (Turkey), introducing his delegation's proposal to delete paragraph 2 (A/CONF.97/C.1/L.210), said it would be dangerous to accept failure by a third person as an exemption since it would provide a ready excuse for parties unwilling to fulfil their obligations. For example, a seller behindhand with his deliveries could assert that a company which was in reality wholly under his control constituted a third person; it would be difficult for a buyer in a foreign country to prove otherwise. On the other hand, a buyer might excuse late payment on the grounds that those who owed him money were also late with their payments. In his delegation's view, paragraph 1 was adequate to cover unexpected circumstances, including failure by a third person.

22. The CHAIRMAN said that the Turkish proposal did not seem to command wide support. If necessary, the Committee might revert to it after it had considered various other proposals to amend paragraph 2.

23. Mr. VINDING KRUSE (Denmark), introducing his delegation's proposal (A/CONF.97/C.1/L.186), said that paragraph 2 of article 65 [became CISG article 79 ] covered cases where impediments were caused by third parties engaged to perform the whole or a part of the contract but not cases where impediments were caused by suppliers to the contracting party. It did not seem reasonable that a party should be exempted from liability because he had chosen an unreliable supplier, whereas he was liable if he had chosen an independent contractor to fulfil his obligations. The buyer might have no knowledge of whether the seller had engaged an independent contractor or had used a supplier, and thus the whole matter would be outside his control. The distinction between an independent contractor and a mere supplier could often lead to uncertainty in regard to liability. There should be no difference made in such cases as to the seller's responsibility, and his delegation therefore proposed that the words "by his supplier or" should be inserted.

24. Mr. MICHIDA (Rapporteur) reminded members that the question of the wording of paragraph 2, and in particular the addition of the words "by his supplier or" proposed by the Danish delegation, had been extensively discussed at the UNCITRAL Working Group in January and February 1974. It had been decided at that time that the words should not be included because they would make the provision too loose and would thus tend to exempt the seller from liability to an extent that might, notably in view of the current crisis in oil supplies, eventually paralyse the world economy.

25. Mr. HJERNER (Sweden) said he too recalled the discussions in the UNCITRAL Working Group on the wording of paragraph 2. However, the current discussion was more confusing, because of the differing interpretations that were being placed on the meaning of paragraph 1. The object of the Danish proposal was not to exempt the failing party from his responsibility; on the contrary, its purpose was to make his liability stricter. The Rapporteur's arguments were based on the assumption that any failure by the supplier could not be covered by paragraph 1, whereas the Danish delegation, and his own, interpreted the position in the opposite way. As now drafted, paragraph 1 was far too wide. If the seller himself was given exemption in cases where failure was due to force majeure, he saw no reason why the same exemption should not apply in the case of subcontractors and suppliers. He therefore supported the Danish proposal.

26. Mr. DATE-BAH (Ghana) said he was somewhat confused by the different arguments that had been put forward. He had felt that the Danish proposal would tend to erode the obligation assumed by the seller to too great an extent, but the previous speaker's comments had raised some doubts in his mind. However, he felt that the most natural interpretation of article 65 [became CISG article 79 ] was that implied in the intervention by the Rapporteur, namely that possible breaches of a contract caused by failure of suppliers to perform their obligations constituted a commercial risk which the seller could reasonably be expected to take into account and should not be entitled to pass on. He therefore could not support the proposal.

27. Mr. BONELL (Italy) also preferred the existing text of paragraph 2. The case of a third person engaged by the seller to perform all or part of the contract was normally the kind of case in which the seller had to be held liable for his choice, since it was inevitably his choice alone. He had some hesitation in supporting the proposal to broaden the scope of the provision by including also a reference to the supplier, because, unlike the third person, a supplier might not necessarily be chosen by the seller in every case. He considered that the cases the proposal envisaged could generally be covered by the existing provisions of paragraph 1, which would have the advantage of providing a more flexible solution.

28. Mr. ZIEGEL (Canada) considered the word "supplier" contained in the Danish proposal highly ambiguous. The courts would have great difficulty in construing its meaning, and there was no reason why they should necessarily interpret it in the sense intended by the Danish delegation. It appeared from the discussion that some representatives had in mind a situation where a seller of a finished article had alternative sources of supply in respect of certain raw materials, but there might also be cases where an important element in the process of manufacture (such as, for example, electricity or natural gas) was available only from a single source. In such a case, the argument that the seller was not responsible for the choice of his supplier was irrelevant. The situation was clearly one which would fall within the scope of paragraph 1, and was one in which it would be unfair to subject the seller to the double conditions imposed in paragraph 2. He was therefore opposed to the inclusion of the supplier in paragraph 2; the question of the extent to which the seller or corresponding party could rely on the failure of his sources of supply should be governed by the provisions of paragraph 1.

29. Mr. HERBER (Federal Republic of Germany) was strongly opposed to the amendment. He pointed out that article 65(1) [became CISG article 79(1) ] already imposed a heavy responsibility on the seller, and permitted only a very limited exemption. The liability envisaged was one which went beyond most national legislations. Paragraph 2 was even stronger with respect to third parties whom the party in breach had engaged to perform his contractual obligations, in particular his servants. He did not think it just that the supplier should be regarded in the same way as a third party engaged by the seller to perform the whole or part of the contract, since, as had already been shown, there were many different types of supplier and in some cases the seller had no freedom of choice between them.

30. Mr. SEVÓN (Finland), Mr. VINDING KRUSE (Denmark), and Mr. WAGNER (German Democratic Republic) expressed their willingness to withdraw their delegations' proposal (A/CONF.97/C.1/L.190, L.186, and L.217) in view of the Rapporteur's comments as to the interpretation of article 65 [became CISG article 79 ].

The meeting was suspended at 1.25 a.m. and resumed at 11.45 a.m.

31. Mr. INAAMULLAH (Pakistan), introducing his delegation's amendment to paragraph 2 (A/CONF.97/C.1/L.223), said that he would be prepared to accept the Turkish proposal to delete the paragraph but as an alternative, he was proposing the introduction of a final proviso which would make it clear that the exemption from liability under paragraph 2 would only apply where subcontracting was envisaged in the contract itself.

32. Mr. VISCHER (Switzerland) said that he supported the Pakistan amendment as an alternative to the Turkish proposal. It was his impression that the doubts raised by paragraph 2 had not been dispelled.

33. Mr. INAAMULLAH (Pakistan) observed that the Turkish proposal to delete the paragraph was prompted by the provision's lack of precision and clarity. His own amendment would improve the text in that respect.

34. Mr. MATHANJUKI (Kenya) considered that the Turkish amendment should be regarded as the main proposal and the Pakistan amendment as an alternative in the event of its rejection.

35. Mr. VINDING KRUSE (Denmark) pointed out that, for the purposes of article 65 [became CISG article 79 ], it was necessary to distinguish clearly between a supplier on the one hand and an independent contractor on the other. The provisions of the article had been interpreted by the Swedish representative and the Rapporteur as meaning that a party could be excused for failure to perform his obligetions if the failure was attributable to failure by a subcontractor to perform his obligations. Paragraph 2 of the article covered the case of the independent contractor. Its provisions were formulated as an exception to paragraph 1 but they in fact constituted a broadening of the party's liability. That broadening of liability resulted from the requirement that the circumstances preventing performance should be beyond the control of the party concerned. For an independent contractor liability would thus be broader than that specified in paragraph 1 for a supplier. His delegation wished to retain paragraph 2 and did not support the proposal to delete it. It wished at the same time, however, not to limit the liability of the parties.

36. The CHAIRMAN said that his interpretation of article 65 [became CISG article 79 ] differed from that of the Rapporteur. Paragraph 1 provided for exclusion of liability where the party concerned was prevented from performing his obligations by events outside its control. Paragraph 2, on the other hand, made provision form much broader exception. It exempted the party concerned if his failure to perform his obligations was due to the failure to perform on the part of a subcontractor whom he had engaged to perform the whole or part of the contract. The amendments by Denmark and Finland would have had the effect of broadening the exemption still further.

37. Mr. DATE-BAH (Ghana) said that in the light of the discussion he believed that the Turkish proposal to delete the paragraph would not serve its intended purpose.

38. The CHAIRMAN, noting that only a minority supported the amendment by Pakistan (A/CONF.97/C.1/L.223), said that if there was no objection, he would consider the proposal rejected.

39. It was so agreed.

40. The CHAIRMAN asked whether any delegation wished to revive the Turkish proposal to delete paragraph 2.

41. Mr. ADAL (Turkey) said that his proposal still stood.

42. Mr. WIDMER (Switzerland) supported the Turkish proposal.

43. Mrs. KAMARUL (Australia) also supported the Turkish proposal. The primary purpose of paragraph 2 was to restrict the operation of the provisions of paragraph 1. Paragraph 2 was thus an exception under paragraph 1, not a new and separate exception. The wording of paragraph 2, however, suggested a wider exception than was desired. Her delegation believed that it would be better to drop paragraph 2 and leave the rule in paragraph 1 to be interpreted by the courts.

44. Mr. ROGNLIEN (Norway) observed that there were wide differences between the interpretations placed upon paragraph 2 by different delegations. The text was obviously ambiguous. He suggested that a small working group should be set up to produce an unambiguous text capable of attracting wide support.

45. His interpretation of paragraph 2 was that its provisions constituted a limitation of the exemption under paragraph 1 and therefore provided for an enlargement of the liability of the parties under the contract. If that interpretation was correct, it was preferable to keep paragraph 2 in the text. If, however, one accepted the Chairman's interpretation, it would be preferable to delete the paragraph.

46. Mr. OLIVENCIA RUIZ (Spain) considered that the exception provided for in paragraph 2 should remain confined to the case of the subcontractor and should not be broadened to other third parties. He supported the suggestion to set up a working group to reformulate the paragraph but would oppose any suggestion to refer the matter to the Drafting Committee.

47. Mr. ADAL (Turkey) said that his delegation maintained its proposal to delete paragraph 2 but would be prepared to participate in a working group to reformulate its provisions.

48. Mr. KUCHIBHOTLA (India) supported the suggestion to set up a working group.

49. The CHAIRMAN noted that there was general support for the suggestion to set up a working group and proposed that it should consist of the representatives of the German Democratic Republic, Ghana, Pakistan, Spain, Sweden, Switzerland and Turkey. If there was no objection, he would take it that the Committee agreed to set up a working group consisting of those members.

50. It was so agreed.

51. Mr. HONNOLD (United States of America) hoped that the working group would not embark on a general recasting of the provisions of paragraph 2 and that its mandate would be confined to clarifying the relationship

(. . .)








CISG
number

Summary Records of Meetings of the First Committee

32nd meeting

Tuesday, 1 April 1980, at 3 p.m.

(. . .)

Variant I:

Revise paragraph (2) of article 65 [became CISG article 79] as follows:

"(2) However, the failure of a third person whom a party has engaged for the performance of the whole or a part of the contract does not exempt that party from liability, unless the said third person aldo would be so exempt if the provisions of paragraph (1) were applied to him."

Variant II:

Delete paragraph (2) of article 65 [became CISG article 79].

66. Mr. MASKOW (German Democratic Republic) introduced the proposal (A/CONF.97/C.1/L.243) by the ad hoc working group set up to prepare suggestions concerning paragraph 2 of article 65 [became CISG article 79 ], with the aim of clarifying its relationship with paragraph 1. The representatives of Spain and Turkey had also contributed to the deliberations of the working group, which had been followed by an observer for Denmark. The working group proposed two possible solutions: variant I, which clarified the text of paragraph 2; and variant II, which proposed its deletion. In variant I, which should be slightly modified by the insertion of the word "also" after the words "third person" in the third line, the working group had endeavoured to bring out the fact that paragraph 2 contained an additional condition for exemption: namely, that the party in breach must show not only his own exemption from liability but also -- and for the same reasons -- that of the third person engaged. Denmark, Ghana, Norway and Sweden preferred that alternative. The other members of the working group felt that to keep paragraph 2 could affect the interpretation of paragraph 1, widening its scope to a considerable extent. Moreover, keeping paragraph 2 would make delimitation of the respective fields of application of the two paragraphs difficult, since the phrase "engaged for the performance of the whole or a part of the contract" might be interpreted in many different ways. Would a carrier, for example, be covered by that phrase? For all those reasons, Switzerland, Turkey and his own country favoured variant II.

67. Mr. SEVÓN (Finland) supported variant I. The discussion of paragraph 2 had shown that it could be construed in two different ways. Some representatives believed that it would make the non-performing party liable in a greater number of cases than did paragraph 1; others thought that its liability would be more limited. The text proposed by the working group in variant I was clearer than the original text and reflected the observations by the Rapporteur of the Committee.

68. Mr. OLIVENCIA RUIZ (Spain) said that his delegation had submitted a written proposal to the working Group which was essentially the same as variant I as finally adopted. That variant seemed to him a definite improvement on the original text. He was opposed to the deletion of paragraph 2, believing that it was essential for the the Convention to make explicit provision for cases where a third person was involved in the performance of a contract.

69. Mr. VINDING KRUSE (Denmark) supported the new text proposed by the working group. It was necessary to clarify the relationship between paragraphs 1 and 2. If the seller engaged a sub-supplier to furnish material or components in part performance of obliogations contracted with regard to the buyer, and if defects in those articles led to a lack of conformity in the merchandise sold to the buyer, such a case should be solved by paragraph 1 and not by paragraph 2. On the other hand, the seller himself could be held liable for those defects if -- for example -- he had been careless in selecting the sub-supplier, if he had not taken adequate steps to check the quality of the material or components supplied by the sub-supplier, or if he had not remedied the defects or obtained replacements. In all those cases, the seller could not disclaim liability on the grounds of non-performance by the sub-supplier by invoking the impediment referred to in article 65(1) [became CISG article 79(1) ].

70. Mr. PLANTARD (France) did not favour variant I, which would, he believed, make exemption too widespread and too easy. It was not enough that the third person or sub-contractor should be in a situation of force majeure for the party who had assumed direct responsibility to be entirely exempted from liability. If, for example, a consignment of coffee was ordered from a merchant, who applied to a Brazilian supplier, and if the latter was in a situation of force majeure, the merchant could not disclaim liability on the grounds that the supplier was in that situation, which would be the effect of variant 1. He would have to obtain coffee elsewhere and perform his obligation, because he was not in a situation of force majeure. Since the Committee must choose between the two, his delegation would prefer variant II, i.e., the deletion of paragraph 2.

71. The CHAIRMAN observed that variant I made no mention of a supplier, but referred merely to "a third person whom a party has engaged for the performance of the whole or a part of the contract"; the criterion for exemption stated in paragraph I would only apply to that party.

72. Mr. ALKIN (Ireland) was in favour of keeping the existing text of paragraph 2. The new version proposed by the working group oversimplified the matter and opened a giant loophole by enabling the non-performing party to disclaim liability merely by proving that a third person had been unable to perform the contract. The text went far beyond the existing provisions. Pursuing the example cited by the representative of France, he said that for one party to be able to release himself from the contract simply because the supplier engaged was in a situation of force majeure would be to favour that party unreasonably, to the detriment of the other party. Variant I proposed for article 65(2) [became CISG article 79(2) ] might lead to quite different results from what had been intended.

73. Mr. SEVÓN (Finland) wondered whether the representatives of France and Ireland had taken due account in their interpretation of variant I of the oral change made by the representative of the German Democratic Republic.

74. Mr. HJERNER (Sweden) fully supported variant I. The working group's terms of reference had merely covered a matter of drafting and the clarification of paragraph 2. The Committee had already decided to keep that paragraph, and those who had voted in favour of doing so had made it clear that in their view its purpose was to increase the liability of the party in breach. He considered that the representatives of France and Ireland had misinterpreted article 65(1) [became CISG article 79(1) ], which was not concerned with force majeure nor with impossibility, but with the quite different issue of circumstances beyond the control of one of the parties. The purpose of paragraph 2 was to limit the scope of paragraph 1. The wording proposed for the former by the working group was sufficiently flexible, since it made no mention of a sub-contractor or supplier, but referred merely to a third person. He pointed out that there was a discrepancy between the French and English texts of variant I; in the second line of the former, the words "pour exécuter" should be replaced by the words "pour l'exécution de" to bring the two texts into line.








CISG
number

Summary Records of Meetings of the First Committee

33rd meeting

Wednesday, 2 April 1980, at 10 a.m

(. . .)

79
Article 65 [became CISG article 79 ] (continued)
(A/CONF.97/C.1/L.243)

1. The CHAIRMAN said that the Committee had still to reach a decision on the proposal by the ad hoc working group (A/CONF.97/C.1/L.243) regarding article 65(2) [became CISG article 79(2) ]. The group had proposed two solutions: variant I, a version close to the existing text, and variant II, deletion of the paragraph.

2. Mr. SCHLECHTRIEM (Federal Republic of Germany) said that he was not entirely clear as to the significance of variant I. According to the explanation given by the Swedish representative at an earlier meeting, it would appear that the new version would substantially broaden the scope of the provision. He therefore felt unable to support it.

3. Mr. VENKATASUBRAMANYAN (India) said that he would prefer to delete the paragraph. It should be open to the seller, in a case in which reliance had to be placed on a single subcontractor, to make appropriate arrangements. However, he could not support a general provision whereby the seller would escape liability if the subcontractor to whom he had entrusted the performance of the contract was prevented from performing it, even though there might be alternative ways in which the seller could have the contract performed.

4. Mr. BENNETT (Australia) said he favoured variant I, which made the position clear. The existing text of article 65(2) [became CISG article 79(2) ] was somewhat ambiguous, and might be interpreted as allowing exemption in circumstances which should not warrant it.

5. Mr. EYZAGUIRRE (Chile) said he also supported variant I, which did not substantially change the sense of the existing text.

6. Mr. ROGNLIEN (Norway) pointed out that article 65(2) [became CISG article 79(2) ] limited exemption from liability, and hence enlarged the liability. If the provision were deleted, it would mean that the liability of the failing party was less than if it were retained. That point should be borne in mind if the proposal for deletion were put to the vote.

7. Mr. ZIEGEL (Canada) said that the discussions of the amendment hinged on the meaning of the word "impediment" in article 65(1) [became CISG article 79(1) ]. If that were to be construed as including impediments due to the failure of a subcontractor or other third party to perform subportions of the contract, then a provision such as paragraph 2 was necessary to circumscribe what would otherwise be an open-ended defence for the principal contracting party.

8. It had become clear from the lengthy discussion that had taken place in the UNCITRAL Working Group that different legal systems had different concepts of the role of the defence of impediment, and the problem was thus a complex one. However, if it was to be assumed that the basis of the defence in question was the concept of an impediment beyond the control of the contracting party, then it would be logical to add a paragraph to make it clear that what was involved was the failure of the subcontracting party to carry out that part of the contract entrusted to him.

9. He thus accepted the amendment in principle, but suggested that the Drafting Committee might be asked to replace the phrase "for the performance of the whole or a part of the contract" by "to perform the whole or a part of the contract".

10. Mr. HONNOLD (United States of America) agreed that the amendment was important to add clarity to the provision. As currently worded, it could be construed as giving too wide an exemption from responsibility when performance had not been in accordance with the contract.

11. It was necessary to appreciate the importance of the concept of "impediment" in paragraph 1 in order to appreciate the significance of the wording of paragraph 2. In ULIS (1964) exemption could be based on a "condition" over which the party had no control. In UNCITRAL it was felt that the language was open to too broad an interpretation and might apply where a seller supplied defective goods but could not be proved to have been at fault. To avoid that construction, it had been decided to replace "circumstance" by the concept of "impediment". That concept implied that the seller was not to be held free of responsibility for defects in the goods he supplied, even if he had not been at fault in regard to his own manufacturing processes. It was also understood that, even under article 65(1) [became CISG article 79(1) ], there would be no "impediment" if a seller instead of doing the manufacturing himself, bought goods from a supplier and those goods proved defective.

12. That was a sound result because, if the seller was responsible for the defect, he had a recourse action to recover his loss from the supplier, a recourse which the ultimate buyer might not have. Because it had been felt that that was not spelt out clearly enough in article 65(1) [became CISG article 79(1) ], article 65(2) [became CISG article 79(2) ] had been drafted to avoid any possible ambiguity.

13. In view of the complexity of the subject and the language problems it involved, he thought it essential that the revised text of article 65(2) [became CISG article 79(2) ] should be entirely clear as to the scope of the exemption from liability, lest it should be construed as being more broad than intended.

14. Mr. NICHOLAS (United Kingdom) said he was disturbed that some people should have received the impression that the article could provide a defence for a seller who had supplied goods with a latent defect; that had certainly not been the intention of those who had drafted the provision.

15. He agreed with the Indian representative that the deletion of paragraph 2 would weaken the position of the buyer vis-à-vis the seller. That was precisely the result which the working group had intended to avoid by including paragraph 2, and he considered it would be deplorable if the paragraph were deleted.

16. Mr. KRISPIS (Greece) said he considered that the amendment proposed for a revised article 65(2) [became CISG article 79(2) ] was already covered by the existing article 65(1) [became CISG article 79(1) ]; nevertheless, it would be as well to retain such a provision in order to exclude any possibility of doubt.

17. As currently worded, however, both versions of the paragraph gave the impression that non-exemption was the rule and exemption was the exception. It was important in legal provisions to make it clear which was in fact the rule and which the exception since, in cases of doubt, it was the rule which was taken to be applicable. He would thus prefer the following wording: "However, the failure of a third person whom a party has engaged for the performance of a whole or part of the contract exempts that party from liability if the said third person . . ." etc.

18. Mr. WIDMER (Switzerland) said that, even after the comments by the Greek representative, he feared that the provision would still be liable to misinterpretation by persons who had not followed the current discussion. In principle, the contents of paragraph 2 were already covered by paragraph 1, and the best solution would thus be to delete paragraph 2 for the sake of greater clarity.

19. Mr. OSAH (Nigeria) said that deletion of paragraph 2 would not solve the problem. The existing article 65(2) [became CISG article 79(2) ] tended to make exemption available only to the seller, since there was no reference to, for example, such impediments as force majeure or government action which might prevent the buyer from fulfilling his obligations under the contract. Such impediments, particularly in developing countries, could have serious effects and should be regarded as beyond the expectation or control of the buyer. He therefore supported variant I.

20. Mr. MANTILLA-MOLINA (Mexico) said that, as had already been pointed out, the concept underlying the proposed paragraph 2 was contained in paragraph 1. He felt that the proposed amendment would not clarify the issue but rather confuse it and that such a wording was a positive invitation to a breach of contract. It would be a great mistake to include such a provision, which should be deleted.

21. Mr. GREGOIRE (France) said that the prolonged and somewhat confused discussion which had taken place had obviously stemmed from a misunderstanding due to faulty drafting. The resultant ambiguity had led many speakers to interpret the revised text of article 65(2) [became CISG article 79(2) ] as meaning precisely the opposite of what the working group had intended. He felt that he could put forward, at least for the French text, a better form of words that would satisfy the vast majority of delegations.

22. In reply to a question by Mr. INAAMULLAH (Pakistan), Mr. DATE-BAH (Ghana) explained that the third person who was engaged for the performance of the whole or a part of the contract need not be mentioned expressly, or even indicated impliedly in the contract itself.

23. Mr. MASKOW (German Democratic Republic) said he supported variant II of the joint proposal, namely deletion of paragraph 2. No convincing reason had been put forward during the discussion to justify making a difference between the normal supplier, who was subject to the provisions of article 65(1) [became CISG article 79(1) ], and a person engaged to perform the whole or a part of the contract, who was dealt with in article 65(2) [became CISG article 79(2) ]. There were cases in practice in which subsuppliers were even more important than persons engaged to perform the whole or a part of the contract.

24. His delegation could see no justification for making a different assessment of the obligations of a party in those two cases and thought that the rule in article 65(1) [became CISG article 79(1) ] should apply in all cases.

25. Mrs. FERRARO (Italy) said that she was unable to support variant I of the joint proposal. As the Ghanaian representative had just explained, the third party in question might not even be mentioned in the contract. It was unacceptable that the aggrieved party in a case of failure to perform should be placed in the position of having to introduce legal proceedings against a totally unknown person.

26. The principle to be applied in the matter was that, where a third party was selected solely by the party engaging him, that party to the contract was responsible for the acts of the third party. Liability for the conduct of the third party would cease to apply only if the third party had been selected by the aggrieved party.

27. In reply to a question by Mr. LEBEDEV (Union of Soviet Socialist Republics), the CHAIRMAN explained that variant I would be voted on with the addition of the word "also" at the end of the third line of the English text as it appeared in document A/CONF.97/C.1/L.243.

28. Mr. HJERNER (Sweden) said that, at a previous meeting, the Committee had already rejected a proposal to delete paragraph 2 of article 65 [became CISG article 79 ]. Following that vote, it had set up the five-member ad hoc working group for the sole purpose of clarifying the text of the paragraph. In his view, therefore, the ad hoc working group's variant II could not be put to the vote, since it simply proposed the deletion of paragraph 2, a proposal that had already been rejected by the Committee.

29. Following a brief procedural discussion in which Mr. ROGNLIEN (Norway) and Mr. DATE-BAH(Ghana) took part, the CHAIRMAN put to the Committee the procedural issue as to whether it would be in order to take a vote on variant II in document A/CONF.97/C.1/L.243.

30. Having noted that the Committee had decided in the affirmative by a large majority, he invited it to vote on variant II of the working group's proposal, namely the deletion of paragraph 2 of article 65 [became CISG article 79 ].

31. Variant II of the proposal was rejected by 23 votes to 22.

32. In reply to a question by Mr. MATHANJUKI (Kenya), Mr. ZIEGEL (Canada) explained that his subamendment to replace in variant I the words "for the performance of" by the shorter formula "to perform" was a mere drafting proposal which could, he understood, be considered by the Drafting Committee.

33. In reply to a question by Mr. DABIN (Belgium), the CHAIRMAN said that, if the Committee adopted the text appearing in variant I of the joint proposal, the Drafting Committee would take into account the Canadian drafting subamendment and, with regard to the French version of the text, the comments by the representative of France.

34. Mr. HJERNER (Sweden) said that the Canadian subamendment to the text in variant I was not a mere drafting proposal. The ad hoc working group had intentionally made use of the formula "for the performance of" in the original (English) text. The French text did not correspond to the original and should be brought into line with it.

35. In reply to a question by Mr. PLANTARD (France), the CHAIRMAN explained that, if the text in variant I was rejected, the Committee would thereby decide to retain the existing text of article 65(2) [became CISG article 79(2) ].

36. He invited the Committee to vote on variant I of the working group's proposal (A/CONF.97/C.l/L.243).

37. Variant I of the Proposal was rejected by 21 votes to 16.

(. . .)


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