Diplomatic Conference colloquy on proposal to prohibit
parties from departing from obligation of good faith
Summary Records of Meetings of the First Committee
Wednesday, 12 March 1980, at 3 p.m.
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53. The CHAIRMAN invited the Committee to discuss paragraph (1) of the Canadian amendment to article 5 [became CISG article 6 ] (A/CONF.97/C.1/L.10).
54. Mr. WAGNER (German Democratic Republic) said that he welcomed the idea contained in the proposed paragraph (1) but found the formulation unduly complicated. In order to simplify it, he proposed the deletion of the concluding phrase, beginning with the words "but the parties may . . ." and ending with the words "manifestly unreasonable".
55. Mr. SHORE (Canada) accepted that proposal.
56. Mr. WAITITU (Kenya) fully supported the Canadian proposal for article 5 [became CISG article 6 ], paragraph (1).
57. Mr. ROGNLIEN (Norway) said that he was not altogether satisfied with the proposed paragraph (1). The second sentence appeared to suggest that parties who agreed to exclude the Convention wholly might thereby be able to exclude "the obligations of good faith, diligence and reasonable care" prescribed by the Convention, even if such principles were to be contained in article 7 [became CISG article 8 ] or part II of the Convention.
58. Mr. HJERNER (Sweden) said that he could not support the Canadian proposal precisely because of the reference it made to the three principles mentioned by the previous speaker. He saw no mention anywhere in the draft of the principles of "diligence and reasonable care"; as for the principle of "good faith", it was mentioned only once, in article 6 [became CISG article 7 ], but in a totally different context.
59. Mr. SHORE (Canada) explained that the present text of article 5 [became CISG article 6 ] would enable the parties to a contract to exclude any provision of the Convention whatsoever. They ought not, however, to be able to exclude a provision such as that contained in article 6 [became CISG article 7 ], which required the parties to perform their contractual obligations in good faith. The same was true of the other two principles mentioned in the second sentence of the Canadian text.
60. Mr. FARNSWORTH (United States of America) said that, like the Swedish representative, he could not support the Canadian amendment. An a contrario interpretation would suggest a general obligation of good faith.
61. Mr. KIM (Republic of Korea) said that the Canadian proposal was unacceptable as a matter of principle. The exclusions covered by article 5 [became CISG article 6 ] were confined to the contractual obligations between the parties. There could be no question, for example, of excluding article 2 on the scope of application of the Convention, or the principle of good faith.
62. Mr. DABIN (Belgium) said that there were many provisions besides those of good faith, diligence and reasonable care that were fundamental. They included article 23 [became CISG article 25 ] on fundamental breach, article 37 [became CISG article 39 ], paragraph (2), on the obligation to give notice, article 44 [became CISG article 48 ] on the right to remedy failure to perform and article 65 [became CISG article 79 ] on exemptions.
63. The CHAIRMAN asked if the Committee wished to adopt paragraph 1 of the Canadian amendment (A/CONF.97/C.1/L.10) as sub-amended by the German Democratic Republic.
64. Noting that a substantial majority was against the proposal, he said that if there were no objections, he would take it that the Committee rejected it.
65. It was so agreed.
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