What was Portugal’s role in the Vienna Conference?(*)

(*) César Pires

Part I – Comments and Proposals by the Government of Portugal on the Draft Convention on Contracts for the International Sale of Goods[1]

Regarding the draft Convention, Portugal considered that “its provisions are, in general, acceptable and that the draft Convention would be a suitable basis for the discussions at the United Nations Conference on Contracts for the International Sale of Goods”. The main reasons given “for [the] general approval of the draft Convention” were the following:

“The draft Convention takes account of the principles of the different legal systems in the world”.

“The draft Convention constitutes a significant achievement in the unification of international commercial law”.

“The practical application of the draft Convention by practitioners will be made easy by the fact that it has been drafted in a flexible manner”.

However, Portugal considered “that certain provisions of the draft Convention are too detailed”.

Regarding each Part and each article of the draft Convention, Portugal presented the following considerations:

Form of contract (article 10): Stated “that once it is agreed that the contract can be proved by any means, it does not see why there should be special mention of witnesses”.

Formation of the contract in general (Part II): Supported “the possibility for a State to ratify only the part dealing with formation of contracts or only the part dealing with the sale of goods”.

Time fixed for acceptance of an offer (article 18): Stated “that it does not see any reason for the Convention to govern the matters covered by this article. However, if the article is retained, it would prefer that in respect of letters preference be given to the date on the envelope”.

Fundamental breach  of contract (article 23): Suggested “amended versions of the text so that the test as to whether a breach is fundamental will depend more on the content of the contract” and stated “that the article should prescribe the point in time at which the party in breach should have foreseen the detriment if the breach is to be treated as a fundamental one and that the appropriate point should be the time when the parties enter into contractual relations”;

Notice of avoidance (article 24): Proposed “to add that this notice is not subject to any conditions as to form”.

Modification or abrogation of the contract (article 27): Suggested “a rewording of paragraph (1) which would emphasize that the modification or obrogation of the contract by only one of the parties is admitted only under unusual circumstances”.

Time of delivery (article 31): Stated “that subparagraph (b) should be rewritten to anticipate the case where the buyer and seller together are to choose a date”.

Handing over of documents (article 32): Expressed “its doubts as to the utility of this article. It suggests that there might be a provision stating the content of the obligation where there is an obligation to hand over documents but the contract does not indicate the time or the place or the form in which the documents are to be handed over”.

Conformity of the goods (article 33): Suggested “the deletion of the words «Except where otherwise agreed» in the second sentence of paragraph (1)”.

Notice of lack of conformity (article 37): “Recommended that the two-year period be shortened to one year”.

Third party claims in general (article 39): Suggested “deleting the last phrase of paragraph (1), which it says is already embodied in the principle of autonomy of the will, and replacing it by a new phrase which would limit the buyer’s rights where he knew or could not have been aware of the right or claim of the third party”; also suggested “deleting the reference to industrial or intellectual property as unnecessary in the light of the following article”;

Buyer’s remedies in general; claim for damages; no period of grace (article 41): Doubted “that paragraph (2) has any utility. It also suggests as a drafting matter the addition of «and» between subparagraph (a) and (b) in paragraph (1)”.

Buyer’s tight to require performance (article 42): Proposed “that the right to require repair be made specific in the text”; Portugal has not proposed specific text.

Fixing of additional period for performance (article 43): Recommended “the deletion of the second sentence of paragraph (2), since it already follows from article 41”.

Seller’s right to remedy failure to perform (article 44): Recommended “the deletion of the second sentence of paragraph (1) since it already follows from article 41”.

Seller’s remedies in general; claim for damages; no period of grace (article 57): Made “the same proposal in respect of article 57 that did for article 41”.

Fixing of additional period for performance (article 59): Suggested “the deletion of the second sentence of paragraph (2) because it already follows from other provisions in the convention”.

Deposit with third person (article 76): Suggested “the deletion of this article since the right conferred in it follows from the general obligation to preserve the goods”.

Sale of the preserved goods (article 77): Proposed “redrafting this article to make it clear that the goods can be sold only as a last resort and only if keeping the goods places an excessive burden on the person charged with preserving them”;

[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>

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