Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 41 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 41 [draft counterpart of CISG article 45].
To the extent it is relevant to the Official Text, the
Secretariat Commentary on the 1978 Draft is perhaps the
most authoritative source one can cite. It is the closest
counterpart to an Official Commentary on the CISG. A
match-up of this article of the 1978 Draft with the
version adopted for the Official Text is necessary to
document the relevancy of the Secretariat Commentary on
this article. See the match-up for this article for
a validation of citations to this Secretariat Commentary.
This match-up indicates that article 41 of the 1978 Draft and CISG article 45 are
Text of Secretariat Commentary on article 41 of the 1978 Draft
[draft counterpart of CISG article 45] [Buyer's remedies in general; claim for damages; no period of grace]
PRIOR UNIFORM LAW
ULIS, articles 24, 41, 51, 52 and 55.
1. Article 41 [draft counterpart of CISG article 45] serves both as an index to the remedies available to the buyer if the seller fails to perform any of his obligations under the contract and this Convention and as the source for the buyer's right to claim damages.
2. Article 41(1)(a)[draft counterpart of CISG article 45(1)(a)] provides that in case of the seller's breach, the buyer may "exercise the rights provided in articles 42 to 48 [draft counterpart of CISG articles 46 to 52]." The substantive conditions under which those rights may be exercised are set forth in the articles cited.
3. In addition, article 41(1)(b)[draft counterpart of CISG article 45(1)(b)] provides that the buyer may "claim damages as provided in articles 70 to 73 [draft counterpart of CISG articles 74 to 77]" "if the seller fails to perform any of his obligations under the contract and [or] this Convention." In order to claim damages it is not necessary to prove fault or a lack of good faith or the breach of an express promise, as is true in some legal systems. Damages are available for the loss resulting from any objective failure by the seller to fulfill his obligations. Articles 70 to 73[draft counterpart of CISG articles 74 to 77], to which article 41(1)(b)[draft counterpart of CISG article 45(1)(b)] refers, do not provide the substantive conditions as to whether the claim for damages can be exercised but the rules for the calculation of the amount of damages.
["The relevance of fault is minimized in ... the Convention." Jan Hellner, "The UN Convention on International Sale of Goods -- an Outsider's View", Ius Inter Nationes: Festschrift fur Stefan A. Riesenfeld, Jayme, Kegel & Lutter eds., C.F. Muller Juristischer Verlag: Heidelberg (1983), p. 81. "By making damages independent of fault, the Convention follows the common law rather than the civil law tradition." Michael R.Will, Bianca-Bonell Commentary, Milan: Giuffrè (1987) p. 331. "Not only is fault not a prerequisite for liability to pay damages but liability for non-conformity of the goods never depends on the fault of the seller, ... the buyer's right to avoid the contract when he cannot return the goods does not depend on fault. ... etc." Hellner, op. cit. at 81-82. And Treitel points out: "Fault is not mentioned in [the Convention] as a requirement of any remedy, whether for nonpayment, nondelivery of generic goods, or defects in goods; nor, so far as such defects are concerned, [does the Convention] follow civil law systems in distinguishing between liability for breach of contract and 'guarantee' liability. In all these respects the [Convention] more closely resemble[s] common than civil law systems. ..." G.H. Treitel, "Remedies for Breach of Contract", Oxford: Clarendon Press (1988), pp. 23-24).]
[A further similarity with the common law approach has to do with the general availability of damages as a remedy. Treitel states "In common law jurisdictions, [substitutionary relief in money] is always available, 'damages' being the primary remedy for breach of contract. In civil law countries the availability of damages for nonperformance ... as opposed to specific enforcement is sometimes said to be circumscribed ... but the limits to its scope are of more theoretical than practical importance. ... [T]he Vienna Convention . . . follow[s] the common law approach, making damages available as of right in all cases. ..." Id. at 75.]
4. A number of important advantages flow from the adoption of a single consolidated set of remedial provisions for breach of contract by the seller. First, all of the seller's obligations are brought together in one place without the confusion generated by the complexities of repetitive remedial provisions. This makes it easier to understand what the seller must do, that which is of prime interest to merchants. Second, problems of classification are reduced with a single set of remedies. Third, the need for complex cross-referencing is lessened.
5. Paragraph (2) provides that a party who resorts to any remedy available to him under the contract or this Convention is not thereby deprived of the right to claim any damages which he may have incurred.
["Art. 45(2) rejects the notion that the buyer is forced to elect between claiming damages and exercising the other remedies conferred on him under the Convention, viz. specific performance and avoidance. The common law position is the same and, in particular, it is basic law that a buyer who rejects non-conforming goods or cancels the contract on some other ground is not thereby deprived of his entitlement to damages." Jacob Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods (July 1981), p. 104. See also UCC-2-720 which states: "Unless the contrary intention clearly appears, expressions of 'cancellation' or 'recission' of the contract or the like shall not be construed as a renunciation or discharge of any claim in damages for an antecedent breach".]
6. Paragraph (3) provides that if a buyer resorts to a remedy for breach of contract, no court or arbitral tribunal may delay the exercise of that remedy by granting a period of grace either before, at the same time as, or after the buyer has resorted to the remedy. The reasons for this provision are discussed in paragraphs 3-5 of the commentary to article 43[draft counterpart of CISG article 47]. Such provision seems desirable in international trade (OFFICIAL RECORDS, pp. 37-38).
[Paragraph (3) of Article 45 is said to to be especially relevant in France where there are rules allowing a délai de grace. John O. Honnold, "Uniform Law for International sales under the 1980 United Nations Convention, 2d ed., Kluwer Law International (1991) p. 298. Enderlein & Maskow state that paragraph (3) of Article 45 does not refer "to each and every remedy to which a buyer will resort in the event of a breach of contract by the seller, but only to the right to make a contract void (Article 49)." Fritz Enderlein & Dietrich Maskow, "International Sales Law", Oceana (1992), p. 176. Will also refers to avoidance as "the sole remedy to which [paragraph (3)] belongs." Michael R. Will, Bianca-Bonell Commentary, p. 332.]