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LEGISLATIVE HISTORY
Legislative history of CISG article 46:
Match-up with 1978 Draft to assess relevance of Secretariat Commentary

         1978 Draft article 42                         CISG article 46

(1)The buyer may require performance      (1)The buyer may require performance         
   by the seller of his obligations unless   by the seller of his obligations unless   
   the buyer has resorted to a remedy        the buyer has resorted to a remedy        
   which is inconsistent with this re-       which is inconsistent with such re-       
   quirement.                                quirements.                               
                                                                                           
(2)If the goods do not conform with       (2)If the goods do not conform with          
   the contract, the buyer may require       the contract, the buyer may require       
   delivery of substitute goods only if      delivery of substitute goods only if      
   the lack of conformity constitutes a      the lack of conformity constitutes a      
   fundamental breach and a request          fundamental breach of contract and        
   for substitute goods is made either       a request for substitute goods is         
   in conjunction with notice given          made either in conjunction with           
   under article 37 or within a rea-         notice given under article 39 or          
   sonable time thereafter.                  within a reasonable time thereafter.      
                                                                                           
                                          (3)If the goods do not conform with the      
                                             contract, the buyer may require the       
                                             seller to remedy the lack of con-         
                                             formity by repair, unless this is un-     
                                             reasonable having regard to all the       
                                             circumstances.  A request for             
[Paragraphs (1) and (2) are for all          repair must be made either in             
practical purposes identical. Para-          conjunction with notice given under       
graph (3) was added at the Vienna            article 39 or within a reasonable         
Conference.]                                 time thereafter.                          


Editorial comments
The Secretariat Commentary on 1978 Draft article 42 should be regarded as
relevant to the interpretation of CISG article 46(1) and 46(2).

The Summary Records of Committee Meetings of the Vienna Diplomatic
Conference contain the following information relevant to CISG article 46(3).

Vienna Conference proposals that led to the text of paragraph (3).
"Mr. SEVON (Finland), introducing the joint proposal by the Federal Republic
of Germany, Finland, Norway, and Sweden (A.CONF.97/C.1/L.199), said that it
dealt only with the question of repair and not with the delivery of
substitute goods ... Mr. FARNSWORTH (United States of America) said that the
proposed paragraph seemed reasonable although it had no counterpart in the
domestic law of the United States, or of other common law countries.  He did
not consider that the words 'reasonably practicable for the seller' [in the
original proposal] would allow the courts to take into account the relative
practicability of repairs for both buyer and seller and wondered if more
specific wording might not be helpful....  [The representatives met to
combine them into the first sentence of paragraph (3) which was approved as
quoted above]" (Official Records, pp. 335-336).

Modification considered but not approved.  "Mr. ZIEGEL (Canada)
... suggested that ... the words 'by repair' should be omitted or
alternatively, if it was desired to retain them, they should be followed by
the words 'or otherwise'....  The point at issue was that the seller should
be required to put the goods in an operable condition, which might involve
replacement rather than repair.  The addition of the words 'or otherwise'
should remove any ambiguity.  Mr. HJERNER (Sweden) said that although he
sympathized with the Canadian representative's desire to eliminate
ambiguity, he could not accept his restrictive interpretation of the word
'repair'.  Mr. DATE-BAH (Ghana) agreed.  Mr. FELTHAM (United Kingdom) said
that he was in agreement with the representatives of Ghana and Sweden and
was opposed to the Canadian amendment.  The CHAIRMAN said that as the
Canadian proposal did not appear to have wide support, he took it that the
Committee wished to reject it.  It was so agreed" (Official Records,
pp. 336-337).

The Secretariat Commentary on 1978 Draft article 42 should be read in
conjunction with these comments on CISG article 46(3).

To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG