Go to Database Directory || Go to CISG Table of Contents
LEGISLATIVE HISTORY
Legislative history of CISG article 71: Match-up with 1978 Draft to assess relevance of Secretariat Commentary
1978 Draft article 62 CISG article 71
(1)A party may suspend the perform- (1)A party may suspend the perform- ance of his obligations if it is reason- ance of his obligations if, able to do so because, after the after the conclusion of the contract, conclusion of the contract, a serious it becomes apparent that the other deterioration in the ability to per- party will not perform a substantial form or in the creditworthiness of part of his obligations as a result of: the other party or his conduct in preparing to perform or in actually (a)a serious deficiency in his ability performing the contract gives good to perform or in his credit- grounds to conclude that the other worthiness; or party will not perform a substantial part of his obligations. (b)his conduct in preparing to per- form or in performing the con- tract.
(2)If the seller has already dispatched (2)If the seller has already dispatched the goods before the grounds de- the goods before the grounds de- scribed in paragraph (1) of this arti- scribed in the preceding paragraph cle become evident, he may prevent become evident, he may prevent the the handing over of the goods to the handing over of the goods to the buyer even though the buyer holds buyer even though the buyer holds a a document which entitles him to document which entities him to obtain them. This paragraph relates obtain them. The present paragraph only to the rights in the goods as relates only to the rights in the goods between the buyer and the seller. as between the buyer and the seller.
(3)A party suspending performance, (3)A party suspending performance, whether before or after dispatch of whether before or after dispatch of the goods, must immediately give the goods, must immediately give notice to the other party thereof notice of the suspension to the other and must continue with perform- party and must continue with per- ance if the other party provides formance if the other party provides adequate assurance of his perform- adequate assurance of his perform- ance. ance.
Editorial comments
Paragraph (2) and (3) of CISG article 71 and 1978 Draft article 62 are substantively the same. However, paragraph (1) was significantly modified. CISG article 71(1) only permits suspension "if it becames apparent that the other party will not perform a substantial part of this obligations...", whereas 1978 Draft article 62(1) had permitted suspension "if it is reasonable to do so where there are good grounds to conclude that the other party will not perform a substantial part of his obligations..." The 1978 Draft was said to permit suspension based on a "subjective assessment of the situation" (Mr. SHAFIK, (Egypt), (Official Records, p.419). The modification is said to have been made so that under CISG article 71 "subjective fear by one party will not justify suspension; there must be objective grounds showing substantial probability of non-performance" (Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 2d ed., Kluwer 1991, p. 488). Because of this modification, the Secretariat Commentary on 1978 Draft article 62(1) does not fit CISG article 71(1).
Pace Law School Institute of
International Commercial Law - Last updated July 12, 1999
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