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LEGISLATIVE HISTORY
Legislative history of CISG article 88:
Match-up with 1978 Draft to assess relevance of Secretariat Commentary

      1978 Draft article 77                        CISG article 88                                                                 
                                                                                                         
(1)The party who is bound to preserve      (1)A party who is bound to preserve                                               
   the goods in accordance with arti-         the goods in accordance with arti-                                             
   cles 74 or 75 may sell them by any         cle 85 or 86 may sell them by any                                              
   appropriate means if there has been        appropriate means if there has been                                            
   an unreasonable delay by the other         an unreasonable delay by the other                                             
   party in taking possession of the          party in taking possession of the                                              
   goods or in taking them back or in         goods or in taking them back or in                                             
   paying the cost of preservation,           paying the price or the cost of pre-                                           
   provided that notice of the inten-         servation, provided that reasonable                                            
   tion to sell has been given to the         notice of the intention to sell has                                            
   other party.                               been given to the other party.                                                 
                                                                                                                             
(2)If the goods are subject to loss or     (2)If the goods are subject to rapid de-                                          
   rapid deterioration or their pre-          terioration or their preservation                                              
   servation would involve unreason-          would involve unreasonable expense,                                            
   able expense, the party who is             a party who is bound to preserve the                                           
   bound to preserve the goods in             goods in accordance with article 85 or                                         
   accordance with articles 74 or 75          86 must take reasonable measures to                                            
   must take reasonable measures to           sell them. To the extent possible he                                           
   sell them. To the extent possible he       must give notice to the other party of                                         
   must give notice to the other party        his intention to sell.                                                         
   of his intention to sell.                                                                                                 
                                                                                                                             
(3)The party selling the goods has the     (3)A party selling the goods has the                                              
   right to retain out of the proceeds of     right to retain out of the proceeds of                                         
   sale an amount equal to the reason-        sale an amount equal to the reason-                                            
   able expenses of preserving the            able expenses of preserving the                                                
   goods and of selling them. He must         goods and of selling them. He must                                             
   account to the other party for the         account to the other party for the                                             
   balance.                                   balance.                                                                      


Editorial comments
Substantive changes to the text are:

Paragraph (1): paying "the price or" the cost of preservation.

"Mr. BOGGIANO (Argentina) said that ... the addition of a reference to
paying the price, as well as to the cost of presevation [was made] in order
to bring the paragraph into line with amendment to [CISG article 85] which
had been adopted ..." (Official Records, p. 413).

Paragraph (1): provided that "reasonable" notice has been given.

"Mr. ZIEGEL (Canada) said that it was his view that the phrase
'notice of intention to sell' in the existing text necessarily implied
reasonable notice to give the other party adequate opportunity to prevent
the sale if he so wished.  [If one] desire[d] to put the matter beyond
doubt ... [this] could be obtained by inserting the word 'reasonable' before
the phrase 'notice of the intention to sell'...." (Official Records, 
p. 401).

Paragraph (2): subject to "rapid deterioration" rather than "loss or
rapid deterioration".

"Mr. KHOO (Singapore) ... said [this deletion] was intended to make it
clear that what was at issue was the physical state of the goods and not any
economic fluctuations to which they might be subject, an interpretation
which, he thought, would place an undue burden on the party preserving the
goods by exposing him to the risk of making a wrong commercial judgement"
(Official Records, p. 227).

Subject to the above, the Secretariat Commentary on 1978 Draft article 77
can be relevant to the interpretation of CISG article 88.

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