(*) César Pires
Part II – The participation of Portugal in the First Committee[1]
In the First Committee Portugal submitted the following amendments to the Draft Convention on Contracts for the International Sale of Goods (jointly with Argentina and Spain)
- Amendments to article 46[2]:
“Add at the end of the first sentence the words: «at the buyer’s place of business or habitual residence.»”.
“Mr. BOGGIANO (Argentina), introducing the joint proposal of Argentina, Portugal and Spain […], said that in the circumstances envisaged in article 46, adequate protection should be given to the buyer, as the injured party. The object of the joint proposal was to ensure that the reduction in price took account of prevailing prices at or close to his place of business or habitual residence so that he could realistically expect to be able to replace the defective goods. As was to be seen from the examples given in the Secretariat commentary on article 46 […], the rule referred mainly to fungible goods in respect of which it was understandable that the reduction in price for partial performance should be so calculated. There was precedence in various general rules, as for example in the EEC’s coarse grains trade convention, where reference was made to the value at the point of disembarkation of goods. However, there was no specific mention of fungible goods in the text of article 42 and the principle could with advantage be extended to complex machinery in the case of which the reduction in price should reflect the steps the buyer would have to take to remedy any defect in his place of business or habitual residence, which might be completely different from those which would have to be taken elsewhere.”
This amendment “was rejected by 11 votes in favour and 23 against”.
- Amendments to article 50[3]:
“Add the following sentence […]: «If payment in the contractual currency is not possible, the seller may require equivalent payment in the legal currency of the place of the buyer’s place of business»”.
“Mr. OLIVENCIA RUIZ (Spain) introduced an amendment to article 50 […] on behalf of the sponsors (Argentina, Portugal and Spain). It concerned the addition to article 50 of a sentence dealing with a question which was not mentioned at all in the draft Convention, namely, the nature of the payment or, in other words, of the currency in which the buyer was required to pay the price. The omission was presumably not accidental, but due to the fact that, under national legislation or exchange controls, payment of the price assumed different forms depending on the country concerned. However, the additional sentence proposed would not hinder the application of national regulations in any way, since the sponsors made it clear that payment ought to be effected in the contractual currency. They had mainly been thinking of cases in which national exchange regulations would prevent the buyer from paying in the agreed currency and considered that the present text of article 50 was not sufficient to compel the buyer to pay. The buyer could in fact invoke article 65 to evade his obligations in that respect, which would be wrong. If the buyer was materially able to pay the price, he should be prevented from taking advantage of the gap in the Convention which would make it possible for him to evade the obligation to do so. The sponsors had therefore believed it useful to give the seller the power to require equivalent payment in the legal currency of the buyer’s place of business.”
This amendment “was rejected by 9 votes in favour and 22 against”.
- Amendments to article 51[4]:
“Amend the beginning of article 51 to read: «If the price has not been stated and no provision has expressly or impliedly been made for the determination of the price of goods, and if Part II of this Convention is not applicable to the contract and the applicable law admits in such cases the existence of a contract of sale, the buyer must pay . . .»”.
This amendment was withdrawn “in favour of text submitted by ad hoc working group”. This ad hoc working group submitted the following text to article 51: “Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties shall be deemed, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in that particular trade”.
“The text of the ad hoc working group was orally amended twice, firstly by an amendment deleting from the text the word «validly», and secondly by an amendment adding the words «by the seller» after the words «generally charged».
The text, with each oral amendment, was rejected.
The text as unamended was adopted by 29 votes in favour and 4 against.”
- Amendments to article 52[5]:
“Amend article 52 to read as follows: «If the price is stated according to the weight of the goods, the net weight is meant unless otherwise agreed»”.
“Mr. OLIVENCIA RUIZ (Spain) introduced the joint amendment by Argentina, Portugal and Spain […]. Its sole purpose was to render article 52 more explicit, since the existing text could be misunderstood. In establishing stricter and more specific criteria for the determination of price according to weight, it merely clarified the original and thus amounted to a drafting amendment. Its sponsors would not object to it being put to the vote or transmitted to the Drafting Committee”.
This amendment “was rejected by 10 votes in favour and 22 against”.
- Amendments to article 54, paragraph (1)[6]:
“Amend the first paragraph of article 54 to read: «(1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at his disposal in accordance with the contract and this Convention. The seller may in this case defer handing over the goods or documents until payment has been made»”.
“Mrs. SOARES (Portugal), introducing the joint proposal by Argentina, Spain and Portugal […], said that the proposed opening proviso in paragraph 1 corresponded to the opening proviso «in article 53 (1) of the draft Convention». It was necessary, for the sake of symmetry and to avoid difficulties of interpretation”. “The proposed change in the last sentence of the paragraph was intended to bring out better the meaning of the rule embodied in the last sentence which was an expression of the exceptio non adimpleti contractus. That wording was also better suited to the non-imperative character of the rule. In the present text the use of the word «condition», which had a precise legal connotation, could be misleading”.
“Mrs. SOARES (Portugal), introducing the amendment proposed by Argentina, Portugal and Spain to the last sentence of paragraph 1 of article 54 […], said that it was a drafting amendment to reformulate the last sentence in which the use of the word «condition», which had a precise legal meaning, was misleading.”
The following part of the amendment “was adopted by 16 votes in favour and 15 against, and the UNCITRAL text adopted subject to this amendment”: «(1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at his disposal in accordance with the contract and this Convention.»
The remaining part of the amendment “was rejected by 7 votes in favour and 17 against”.
- Amendments to article 55[7]:
“The addition of two new articles 55 bis and 55 ter”, with the following texts:
Article 55 bis
«Unless the contract so permits, the seller may not be obliged to receive part of the price. If the seller agrees to part payment, the provisions of articles 57 to 60 shall apply in respect of the part which is outstanding.»
“Mr. OLIVENCIA RUIZ (Spain), introducing the proposal by the Argentine, Portuguese and Spanish delegations […], said that the proposed new article covered matters which seemed to have been omitted from the draft Convention. Provisions concerning payment no doubt raised fewer problems than those relating to the obligation to deliver. Nevertheless it seemed desirable to include some traditional rules concerning the buyer’s obligations in the Convention as had been done in the case of the seller. The provisions in question were generally accepted in international trade, and the sponsors proposed that they should be inserted either after article 55 or at some other place the Committee might consider more appropriate.”
Article 55 ter
«If the buyer pays the price before the appointed date, the seller may accept it or refuse it.»
“Mr. OLIVENCIA RUIZ (Spain) explained that the sponsors had not been inspired by a desire for symmetry but by a concern that the Convention as a whole should be homogeneous. The purpose was to present as complete as possible a set of regulations on contracts of sales. Similar problems were presented by early delivery and early payment but whereas the former might raise problems of storage, the latter might equally well raise problems of currency fluctuations. The seller should thus be given the right to accept or refuse payment before the appointed date. In view of the opposition to the proposed article 55 bis, the proposed article 55 ter would probably not meet with the approval of the Committee. However, he wished reference to the question to appear in the summary record so that it would be clear that the matters had not been overlooked but that reference to them had been considered unnecessary.”
The amendment “to add article 55 bis was rejected”.
“The amendment to add article 55 ter was rejected by 20 votes in favour and 21 against.”
- Amendments to article 77, paragraph (1)[8]:
“Amend the first paragraph of article 77 to read: «(1) The party who is bound to preserve the goods in accordance with articles 74 or 75 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the cost of preservation, provided that he has given notice to the other party, requiring him to take possession of the goods within a reasonable time with a warning of his intention to proceed with the immediate sale of the goods».”
“Mr. BOGGIANO (Argentina), introducing the amendment submitted by the delegations of Argentina, Portugal and Spain said that the proposal was intended to avoid possible difficulties by providing that the seller should be given notice requiring him to take possession of the goods within a reasonable time and warning him of the intention to proceed with an immediate sale. If the Committee decided the amendment was a mere clarification of the existing wording, the sponsors would have no objection to its being referred directly to the Drafting Committee”.
This amendment was withdrawn “in favour of the amendment by the ad hoc working group”.
“Ad hoc working group composed of Argentina, Canada, Netherlands and Portugal”[…] “submitted the following text”:
“«(1) The party who is bound to preserve the goods in accordance with articles 74 or 75 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party.»”
“The amendment by the ad hoc working group relating to the addition of the words «the price or» was adopted to make paragraph (1) consistent with article 74 as amended by the First Committee at its 30th meeting on 31 March 1980. The amendment by the ad hoc working group to add the word «reasonable» was adopted by 23 votes in favour and 15 against, and referred to the Drafting Committee.”
[1] United Nations Conference on Contracts for the International Sale of Goods – Official Records, New York: United Nations, 1991, in <https://www.uncitral.org/pdf/english/texts/sales/cisg/a-conf-97-19-ocred-e.pdf>
[2] “The text of the United Nations Commission on International Trade Law provided as follows:
Article 46
«If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may declare the price to be reduced in the same proportion as the value that the goods actually delivered would have had at the time of the conclusion of the contract bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 44 or if he is not allowed by the buyer to remedy that failure in accordance with that article, the buyer’s declaration of reduction of the price is of no effect.»”
[3] “The text of the United Nations Commission on International Trade Law provided as follows:
Article 50
«The buyer’s obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any relevant laws and regulations to enable payment to be made.»”
[4] “The text of the United Nations Commission on International Trade Law provided as follows:
Article 51
«If a contract has been validly concluded but does not state the price or expressly or impliedly make provision for the determination of the price of the goods, the buyer must pay the price generally charged by the seller at the time of the conclusion of the contract. If no such price is ascertainable, the buyer must pay the price generally prevailing at the aforesaid time for such goods sold under comparable circumstances.»”
[5] “The text of the United Nations Commission on International Trade Law provided as follows:
Article 52
«If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight.»”
[6] “The text of the United Nations Commission on International Trade Law provided as follows:
Article 54
« (1) The buyer must pay the price when the seller places either the goods or documents controlling their disposition at the buyer’s disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents.
(2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price.
(3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity.»”
[7] “The text of the United Nations Commission on International Trade Law provided as follows:
Article 55
«The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or other formality on the part of the seller.»”
[8] “The text of the United Nations Commission on International Trade Law provided as follows:
Article 77
«(1) The party who is bound to preserve the goods in accordance with articles 74 or 75 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the cost of preservation, provided that notice of the intention to sell has been given to the other party.
(2) If the goods are subject to loss or rapid deterioration or their preservation would involve unreasonable expense, the party who is bound to preserve the goods in accordance with article 74 or 75 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell.
(3) The party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance.»”
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