LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

The meeting was called to order at 3.05 p.m.

CONSIDERATION OF ARTICLES 1-82 OF THE DRAFT CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND OF DRAFT ARTICLE "DECLARATIONS RELATING TO CONTRACTS IN WRITING" IN THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES FOR THE DRAFT CONVENTION (agenda item 3) (A/CONF.97/5, 6) (continued)

47	Article 43 [became CISG article 47 ] (continued) (A/CONF.97/C.1/L.156, L.179)

1. Mr. SCHLECHTRIEM (Federal Republic of Germany) considered that article 43(1) [became CISG article 47(1) ] raised both a drafting and a substantive problem. As far as the wording was concerned, the United Kingdom proposal to add the words "may give notice to the seller" was acceptable. As for the substantive question, which was whether the notice must be received by the seller in order to be effective, article 25 [became CISG article 27 ] was applicable on that point; its answer was no. Accordingly, if the Committee wished to state the principle of receipt in article 43(1) [became CISG article 47(1) ], it would be necessary to amend article 25 [became CISG article 27 ].

2. Mr. ZIEGEL (Canada) thought it was clear from the wording of article 43(1) [became CISG article 47(1) ] that the buyer was required, if he fixed an additional period of time for performance by the seller, to advise the latter accordingly. In his delegation's view, such notice must reach the seller before it could be effective. Lastly, it would be advisable to explain what was meant by the phrase "of reasonable length".

3. Mr. FARNSWORTH (United States of America) suggested inserting in article 43 [became CISG article 47 ] a provision similar to the one in article 44(4) [became CISG article 48(4) ].

4. The CHAIRMAN said he suspected there might be some misunderstanding regarding the purpose of article 43(1) [became CISG article 47(1) ]. When the buyer fixed an additional period of time for performance by the seller, he was acting for the latter's benefit, although not obliged to do so. Consequently, it was hard to see what importance the receipt of the notice could have, since it was the buyer, not the seller, who was bound by the fixation of the additional period of time, which was designed to enable the seller to perform the contract.

5. Mr. HJERNER (Sweden) agreed with that view. The fixation of an additional period of time was a privilege which the buyer granted the seller. He agreed with the United Kingdom representative that the buyer must advise the seller of the additional period, but that did not mean that the notice would not be effective unless it had been received by the seller. If the seller was in breach, the fixation of an additional period of time was to his advantage. The situation envisaged in article 44 [became CISG article 48 ] was different: it was essential that notice by the seller should reach the buyer, for in that case it was the seller who had failed to perform his obligations. Personally, he thought the existing wording was much to be preferred.

6. Mr. OSAH (Nigeria) said he saw no need for the United Kingdom amendment, as the words "additional period of time" implied that the buyer would give notice to the seller.

7. Mr. SAMI (Iraq) said that at first he had thought the purpose of the United Kingdom proposal was to require the buyer to give the seller notice of the additional period of time in writing. In view of the United Kingdom delegation's explanation that such notice could be given otherwise than in writing, he agreed that the additional period of time fixed by the buyer must be brought to the seller's notice. That, moreover, was the meaning of article 43(1) [became CISG article 47(1) ], which there was absolutely no need to change.

8. Mr. KUCHIBHOTLA (India) observed that the text of article 43(1) [became CISG article 47(1) ] was perfectly clear. The word "fix" presupposed a written or oral notice, which was governed by the provisions of article 25 [became CISG article 27 ].

9. Mr. FELTHAM (United Kingdom) pointed out that the fixation of an additional period of time, as provided for in article 43(1) [became CISG article 47(1) ], was not solely a privilege accorded by the buyer to the seller. Such notice entitled the buyer, in the event of failure to perform the contract, to request its avoidance.

10. In his delegation's mind, the amendment had merely been designed to improve the wording of the paragraph. However, he had been convinced by those representatives who had argued that it also raised a substantive problem, the solution to which was to insert in article 43(1) [became CISG article 47(1) ] a provision similar to that in article 44(4) [became CISG article 48(4) ].

11. Mr. EYZAGUIRRE (Chile) considered article 43(1) [became CISG article 47(1) ] satisfactory, because it established that the buyer could fix an additional period of time of reasonable length for performance by the seller of his obligations. It would be better to avoid any reference to notice as in the United Kingdom amendment, since that would introduce an idea which would make the text more restrictive.

12. The CHAIRMAN, observing that the representative of the United Kingdom was seeking to widen the scope of his proposal, asked him whether he wished to maintain his amendment in its original form.

13. Mr. FELTHAM (United Kingdom) said he would stick to the wording of his original proposal, provided that it did not create difficulties for translation into the other languages, but that he was prepared to accept the amendment proposed by the United States delegation, having been convinced by the argument that the notice must be received by the seller. He therefore asked the Chairman to put to the vote first the proposal to introduce in article 43(1) [became CISG article 47(1) ] a provision similar to the one in article 44(4) [became CISG article 48(4) ].

14. Mr. ROGNLIEN (Norway) proposed that the following sentence should be inserted in article 43(1) [became CISG article 47(1) ]: "Such notice is not effective unless received by the seller".

15. The CHAIRMAN said it would be advisable to leave the Drafting Committee to establish the exact text of the paragraph.

16. Mr. DATE-BAH (Ghana) considered that article 43(1) [became CISG article 47(1) ] raised two separate problems. First, there was a drafting problem: should the buyer be required to specify the additional period of time accorded? Secondly, there was a substantive problem: should the principle of sending or of receipt be adopted for the notice?

17. The CHAIRMAN put to the vote the proposal to add to article 43(1) [became CISG article 47(1) ] a provision similar to that in article 44(4) [became CISG article 48(4) ].

18. The proposal was rejected by 27 votes to 10.

19. Mr. STALEV (Bulgaria) said that he had voted against the proposal, not because he was opposed to the principle of receipt, but because that principle followed from the text of the draft itself.

20. Mr. FELTHAM (United Kingdom) asked for his original amendment (A/CONF.97/C.1/L.156) to be put to the vote.

21. Mr. DATE-BAH (Ghana) said that if it was only a drafting matter, the Drafting Committee had the necessary room for manoeuvre. Putting the United Kingdom proposal to the vote would have the effect of establishing the text once and for all.

22. The CHAIRMAN pointed out that for some delegations the amendment raised a substantive rather than a drafting issue.

23. Mr. HJERNER (Sweden) wondered whether the United Kingdom delegation was not seeking to introduce into the text of the Convention the theory that notices became effective at the time of receipt, not of sending. That question had already been settled in article 25 [became CISG article 27 ]. If the United Kingdom amendment were adopted, it would be necessary -- as the representative of India had already pointed out -- to amend article 25 [became CISG article 27 ].

24. Mr. KRISPIS (Greece) agreed with the remarks by the Swedish representative. However, the word "fix" might be interpreted as pointing to the receipt theory.

25. The CHAIRMAN said that to his way of thinking the United Kingdom proposal merely sought to clarify the principle of sending. The problem was merely a drafting one.

26. Mr. GHESTIN (France) thought that something more than a drafting question was involved, at least in the French version. Adding the words "may give notice to the seller" changed the original meaning of the paragraph and created uncertainty about such notice, which pre-supposed a specific procedure.

27. Mr. SZÁSZ (Hungary) felt that the United Kingdom amendment raised a question of substance, not of drafting, and should therefore be put to the vote.

28. Mr. FELTHAM (United Kingdom) said he could accept a slight drafting change in the English text, namely, the addition, after the word "fix" in the original text of article 43(1) [became CISG article 47(1) ], of the words "by notice".

29. The CHAIRMAN said that that would make the problem more distinctly one of drafting.

30. Mr. ROGNLIEN (Norway) disagreed. The original text of article 43(1) [became CISG article 47(1) ] did not establish any position regarding the sending of a notice and could be interpreted as being neutral in relation to article 25 [became CISG article 27 ]. If the new idea were to be introduced, it would then imply a reference to the provisions of article 25 [became CISG article 27 ], and the interpretation of article 43 [became CISG article 47 ] might be altered in cases where the seller did not receive the notice. On the one hand, the buyer would be unable to resort to any remedy during the period of time fixed; and on the other, non-observance by the seller within the additional period of time, referred to in paragraph 1(b) of article 45 [became CISG article 49 ] -- to which his delegation would revert later -- would give the buyer a right to avoid. The present text was neutral and would allow a reasonable and flexible interpretation of the effect in all respect as regards [for the purpose of] the provisions in articles 43(2), 45(1)(b) and 45(2)(b) [became CISG article 47(2), CISG article 49(1)(b) and CISG article 49(2)(b) ].

31. The CHAIRMAN put the United Kingdom amendment (A/CONF.97/C.1/L.156) to the vote.

32. The United Kingdom amendment was rejected.

33. Mr. HONNOLD (United States of America), introducing his delegation's amendment to article 43(1) [became CISG article 47(1) ] (A/CONF.97/C.1/L.179), said that its purpose was to remove the ambiguity which existed on the question of whether avoidance of the contract was limited to cases of non-delivery of the goods. However, that was also the aim of the proposal submitted by Norway on article 45(1)(b) [became CISG article 49(1)(b) ] (A/CONF.97/C.1/L.162), which was closely linked to article 43(1) [became CISG article 47(1) ], and for the sake of a compromise, his country would withdraw its amendment, in the hope that the question would be clarified in the context of article 45 [became CISG article 49 ].

34. Mr. MEIJER (Netherlands) introduced his country's amendment to article 43(2) [became CISG article 47(2) ] (A/CONF.97/C.1/L.163), it being understood that the change to the first sentence would render the second superfluous. In the event of a breach of contract, the buyer could resort to remedies other than a claim for damages, and he must be able to make use of them, but not resort to a remedy which would be inconsistent with the position adopted by him vis-à-vis the seller. It would be recalled that the Committee had decided, in connection with the amendment by Japan to article 42(4) [became CISG article 46 ] (A/CONF.97/C.1/L.161), to revert to the question in the context of articles 43, 44 and 45 [became CISG article 47, CISG article 48 and CISG article 49 ]. He hoped that the Japanese proposal would be broadened on the lines proposed by the Netherlands.

35. The CHAIRMAN noted that the Netherlands amendment appeared to command little support. If there were no objections, he would take it that the Committee wished to reject it.

36. It was so decided.

48	Article 44 [became CISG article 48 ] (A/CONF.97/C.1/L.140, L.141, L.142, L.146, L.148, L.160, L.164, L.180, L.198, L.203)

37. Mr. STALEV (Bulgaria), introducing the Bulgarian amendment to article 44 [became CISG article 48 ] (A/CONF.97/C.1/L.160), said that the existing text did not achieve a proper balance between the seller's interests and those of the buyer, since article 44(1) [became CISG article 48(1) ] permitted the buyer to declare the contract avoided immediately in the event of non-conformity which amounted to a fundamental breach of contract without giving the seller an opportunity to remedy his failure to perform. It would be more satisfactory if the buyer could, within a reasonable time, obtain the goods specified in the contract without having to request substitute goods, which could cause the seller considerable loss if he had to bear high transport costs.

38. Mr. KLINGSPORN (Federal Republic of Germany) said that he shared the Bulgarian representative's view; indeed, his delegation had submitted an identical proposal (A/CONF.97/C.1/L.140). The existing text created a situation which was neither satisfactory nor logical. If, for example, the seller delivered a machine on the date fixed and the machine, once it was installed, failed to work in a satisfactory manner, that should not be regarded as a fundamental breach of contract and the buyer should not be able to declare the contract avoided if the seller was prepared to remedy the fault within a reasonable time. The seller's right to remedy his failure to perform should prevail over the buyer's rights. The situation should also be clarified in respect of article 45 [became CISG article 49 ].

39. Mr. FOKKEMA (Netherlands) said that he was concerned about the correct interpretation of article 44(1) [became CISG article 48(1) ] and the consequences of the proposed deletion. Rather than adopt the amendment, it would be preferable to specify that, in a case such as that described by the representative of the Federal Republic of Germany, the buyer could not declare the contract avoided if the necessary remedy could be applied within a reasonable time without causing loss to the buyer and if no fundamental breach of contract had occurred.

40. Mr. ROGNLIEN (Norway) supported the view expressed by the representatives of Bulgaria and the Federal Republic of Germany and thought that the amendment to paragraph 1 should be adopted. The existing text of article 44 [became CISG article 48 ] was confusing and might be misleading owing to the combined reference to avoidance and to the words "if he can do so without such delay as will amount to a fundamental breach of contract". The said delay was already a part of the fundamental breach under article 45 [became CISG article 49 ] on which the right of avoidance was based. He referred to ULIS 1964, article 43, and the consolidated remedy system which UNCITRAL had adopted. Even if there were a fundamental lack of conformity at the time of delivery, such a serious defect would not justify an immediate avoidance if it could be cured without an intolerable delay. Article 44(1) [became CISG article 48(1) ] as worded at present might be taken to imply that the buyer could declare the contract avoided even if a fundamental breach had not yet fully developed in time.

41. Mr. LOW (Canada) said that he was in favour of the proposal by Bulgaria and the Federal Republic of Germany concerning article 44(1) [became CISG article 48(1) ]. He had already had occassion to express his concern at the fact that a minor breach might be invoked to justify avoidance of the contract by the buyer under article 45 [became CISG article 49 ] without the seller's having any possibility to remedy that breach. The amendment would remove that danger. If it was not adopted, Canada might reserve the right to put forward other proposals along the same lines.

42. Mr. SAMI (Iraq) thought that the amendment under consideration would have the effect of depriving the buyer of the right to avail himself of article 45 [became CISG article 49 ]. The buyer should be able to declare the contract avoided either if the seller failed to perform all his obligations within the period of time fixed or if a fundamental breach of contract had occurred and the buyer had fixed a period of time for the seller to remedy the breach in question. He could not support the amendment proposed by Bulgaria and the Federal Republic of Germany.

43. Mr. BENNETT (Australia) said that he could not support the Bulgarian proposal. Like the representative of Canada, he thought that the Convention should not permit one of the parties to the contract to declare the contract avoided on the grounds of a failure to perform by the other party which was of minor importance. The buyer's right to declare the contract avoided was governed by article 45 [became CISG article 49 ]. If the contract was avoided under article 45 [became CISG article 49 ], the seller could not remedy the failure. In such a case, therefore, he had to act before the contract was avoided. For that reason, the first phrase of article 44(1) [became CISG article 48(1) ] was useful and should be kept.

The representative of Norway had expressed the view that article 44(1) [became CISG article 48(1) ] would suffice with the first phrase deleted so long as it was made clear that a delay could amount to a fundamental breach. It should not be forgotten, however, that a contract could be avoided on the ground of a fundamental breach which had nothing to do with late delivery.

44. Mr. FELTHAM (United Kingdom) said that he shared the view of those who felt unable to accept the amendment proposed by Bulgaria and the Federal Republic of Germany. In support of its amendment, the latter delegation had mentioned the example of a machine which had been delivered but did not work. If the machine could be repaired within a few days, there was no fundamental breach, which was what article 44 [became CISG article 48 ] was concerned with. Conversely, the case should be considered where the seller had delivered a machine which in no way fulfilled the buyer's expectations, whereupon the latter lost confidence and did not even wish the seller to attempt to repair it. The buyer should be able to declare the contract avoided at that point without having to listen to the seller's arguments. Hence, the first phrase of article 44(1) [became CISG article 48(1) ] should be kept.

The meeting was suspended at 4.30 p.m. and resumed at 4.50 p.m.

45. Mr. KRISPIS (Greece) reserved his delegation's position on the substance of the question raised in the amendment proposed by Bulgaria and the Federal Republic of Germany. He pointed out, however, that since the proposed rule stated that the seller "may" remedy, the deletion of the first phrase of paragraph 1 would not bring about the result which those two delegations wished to achieve; the article that should be amended in order to achieve that result was article 45 [became CISG article 49 ]. The Committee should therefore adopt a decision on the substance of their proposal rather than on the deletion of the first phrase of article 44(1) [became CISG article 48(1) ].

46. Mr. HOSOKAWA (Japan) remarked that under article 45(1)(a) [became CISG article 49(1)(a) ], the buyer could declare the contract avoided even if the seller was able to remedy his failure to perform by virtue of article 44(1) [became CISG article 48(1) ]. His delegation's own amendment (A/CONF.97/C.1/L.164) was intended to give the seller the possibility, under article 44 [became CISG article 48 ], of remedying a breach whether that breach was or was not a fundamental one. The explanations given by the delegation of the Federal Republic of Germany showed that the purpose of its amendment was exactly the same. He would therefore be prepared to support the proposal of the Federal Republic of Germany should the Japanese proposal not be adopted in its entirety.

47. Mr. HONNOLD (United States of America) supported the proposal to delete the first phrase of article 44(1) [became CISG article 48(1) ]. An effort should be made to establish a balance between the seller's right to remedy and the buyer's right to avoid. The first phrase of paragraph 1 might infringe the seller's right to remedy. The buyer's right to avoid had to be protected of course, but article 45 [became CISG article 49 ] did all that was necessary in that respect, since the seller was required to remedy in full.

48. Mr. HJERNER (Sweden) noted that the amendment proposed by the Federal Republic of Germany and Bulgaria gave rise both to a question of substance and to one of form and delegations were interpreting the amendment in different ways. As to substance, his delegation firmly supported the amendment. The seller's right to remedy must, in one way or another, prevail over the buyer's right to avoidance of the contract. In order to achieve that end it would not, however, suffice to delete the first phrase of article 44(1) [became CISG article 48(1) ]. The essential thing was to define precisely what constituted a fundamental breach. If the failure to perform could be easily remedied, the breach could not be a fundamental one unless there was unreasonable delay. As a first choice, therefore, he would support the Japanese proposal in its entirety (A/CONF.97/C.1/L.164); failing the adoption of that proposal, he would wish draft article 44 [became CISG article 48 ] to remain unchanged.

49. The second part of the Bulgarian proposal, calling for the deletion of paragraphs 2, 3 and 4 of article 44 [became CISG article 48 ], touched upon matters other than the question of fundamental breach. He wanted to make sure that, for the purposes of the discussion, the two parts of the proposal were separate.

50. Mr. WAGNER (German Democratic Republic) said that he was able to support the amendment to article 44(1) [became CISG article 48(1) ] proposed by Bulgaria and the Federal Republic of Germany. The amendment did not restrict the buyer's right to avoid, which was protected by article 45 [became CISG article 49 ], but was merely designed to specify more precisely the seller's right to remedy.

51. Mr. KUCHIBHOTLA (India) said that, in his view, the amendment proposed by Bulgaria and the Federal Republic of Germany would definitely restrict the buyer's right to avoid. He therefore could not support the amendment.

52. Mr. ZIEGEL (Canada) remarked that in the case of contracts for the sale of durable goods, the seller was frequently allowed to remedy any failure to perform his obligations. In practice, therefore, the seller's right to remedy was quite as well protected as the buyer's right to avoid. Nevertheless, the Convention should recognize the seller's right to remedy in principle and in a general form. The present wording of article 44 [became CISG article 48 ] did not in any way cover the case where, for example, the buyer might have lost confidence, because of an explosion, in the machine which had been delivered and did not wish to give the seller an opportunity to remedy. If the Committee accepted the general principle of the seller's right to remedy, it might perhaps be necessary to set up an ad hoc working group to draft the corresponding provision.

53. Mr. SZÁSZ (Hungary) said that he supported the Bulgarian amendment and agreed with the idea of deleting the first phrase of article 44(1) [became CISG article 48(1) ]. The connection between the seller's right to remedy, dealt with in article 44 [became CISG article 48 ], and the buyer's right to avoid, covered by article 45 [became CISG article 49 ], should, however, also be mentioned in article 45 [became CISG article 49 ].

54. He was under the impression that the right to remedy would henceforth be granted under article 44 [became CISG article 48 ], not only in the event of non-conformity, but also in the event of delay. If that was so, the words "the date for" in the second and third lines of paragraph 1 should be deleted, so that the passage would read: ". . . even after delivery . . .".

55. Mr. BOGGIANO (Argentina) noted that the existing text of article 44 [became CISG article 48 ] envisaged the case of fundamental breach within the meaning of article 23 [became CISG article 25 ]. The example mentioned by the representative of the Federal Republic of Germany was one of failure on the part of the seller to perform his obligations, but not of fundamental breach. Once a fundamental breach had occurred, the buyer should be able to declare the contract avoided, to negotiate a new contract and to negotiate a possible remedy. Where there was presumption of fundamental breach, and where such breach could give rise to avoidance of the contract, freedom of trade required that the seller should be able to declare the contract avoided; it would not be right, therefore, to delete the phrase part of article 44(1) [became CISG article 48(1) ].

56. Mr. EYZAGUIRRE (Chile) also said that, in his view, the first phrase of article 44(1) [became CISG article 48(1) ] should be kept, so as to preserve the buyer's right to avoid the contract on whatever ground. If that right of the buyer's were undermined, the obligation to remedy would lose its point.

57. Mr. BORTOLOTTI (Observer for the International Chamber of Commerce) said that the problem should not really arise except in cases where the buyer had genuine grounds for avoidance. Where it was not known whether the grounds for avoidance were valid, would the seller have to remedy in any case or would he have to wait at the risk of being unable to remedy after a certain time and of suffering loss himself?

58. Mr. KLINGSPORN (Federal Republic of Germany) said that some delegations had pointed out that the deletion of the first phrase of article 44(1) [became CISG article 48(1) ] would not suffice to give the seller's right to remedy precedence over the buyer's right to avoid. His delegation had, however, submitted an amendment to article 45 [became CISG article 49 ] (A/CONF.97/C.1/L.153) which met that point.

59. Mr. STALEV (Bulgaria) said that his delegation, whose proposal was aimed solely at ensuring a better balance in the protection given to the buyer's and the seller's interests, was prepared to consider any suggestions designed to improve that proposal. Furthermore, since the proposal dealt exclusively with cases of non-conformity, the suggestion made by the Hungarian representative with regard to cases of delay appeared to be justified.

60. Mr. HJERNER (Sweden) said that it might perhaps be advisable to set up a working group, as proposed by the representative of Canada, for the purpose of drafting a new text taking into account all the suggestions that had been made.

61. The CHAIRMAN pointed out that the Canadian representative had only suggested setting up a working group if the Committee accepted the principle behind the amendments by the Federal Republic of Germany and Bulgaria.

62. Mr. HJERNER (Sweden) supported the proposal by Canada, but suggested that a working group should be set up before the Committee took a decision.

63. Mr. STALEV (Bulgaria) supported the Swedish proposal.

64. Mr. KLINGSPORN (Federal Republic of Germany) would prefer it if a working group were not set up until the Committee had taken an indicative vote on the question of principle, namely, whether in article 44 [became CISG article 48 ] the seller's right to remedy should prevail over the buyer's right of avoidance or whether, on the contrary, the interests of the buyer should be explicitly protected.

65. The CHAIRMAN suggested that the Committee should take an indicative vote on the principle behind the proposals by Bulgaria (A/CONF.97/C.1/L.160) and the Federal Republic of Germany (A/CONF.97/C.1/L.140), on the understanding that the vote would not affect the proposals themselves.

66. The principle behind the proposals by Bulgaria and the Federal Republic of Germany was supported by 14 delegations and opposed by 18.

67. Mr. ROGNLIEN (Norway) asked for an explanation of the implications of the decision which had just been taken.

68. The CHAIRMAN explained that article 44 [became CISG article 48 ] remained unchanged, that the proposals had not been rejected as such and that a new proposal couched in the same or different terms could be submitted. Delegations were quite free to set up a working group on the question if they wished.

69. Mr. SAMI (Iraq) was of the opinion that a final decision should be taken as the Committee had no new proposal before it and no working group had been formally set up.

70. Mr. FOKKEMA (Netherlands) said that it was apparent from the vote that all delegations wished to adjourn consideration of the proposal.

71. The CHAIRMAN pointed out that, under rule 24 of the rules of procedure, a representative was entitled to move the adjournment of the debate on the question under discussion. Apart from the proposer of the motion, two representatives could speak in favour of the adjournment and two against, after which the motion would be put to the vote immediately.

72. Mr. FOKKEMA (Netherlands) moved that the debate should be adjourned.

73. Mr. STALEV (Bulgaria) seconded the motion by the representative of the Netherlands.

74. Mr. SAMI (Iraq) considered that the two amendments before the Committee had been examined at length and that it would be a waste of time to prolong the debate. A vote should therefore be taken immediately.

75. Mr. MANTILLA-MOLINA (Mexico) said that a large number of speakers had taken part in the discussion and that the Committee was well able to vote on the amendments. An adjournment would simply impede the progress of the Committee's work. Moreover, it would be best to avoid indicative votes, which were not provided for in the Committee's rules of procedure and took up time to no good purpose.

76. The CHAIRMAN put to the vote the motion to adjourn the debate on the amendments by Bulgaria and the Federal Republic of Germany (A/CONF.97/C.1/L.160, L.140).

77. The motion for adjournment was adopted by 19 votes to 15.

78. The CHAIRMAN invited the Committee to consider the amendment by the United States of America (A/CONF.97/C.1/L.203).

79. Mr. FARNSWORTH (United States of America) said that there was a close link between article 42 [became CISG article 46 ], on performance by the seller of his obligations, and article 44 [became CISG article 48 ], on the seller's right to remedy failure to perform. The changes which his delegation would like to make in article 44 [became CISG article 48 ] were intended to clarify that link. On the one hand, under article 42 [became CISG article 46 ], the buyer could require the seller to remedy a lack of conformity or to deliver substitute goods. On the other, under article 44 [became CISG article 48 ], the seller could remedy failure to perform or deliver substitute goods. What would happen if the buyer, claiming his rights under article 42 [became CISG article 46 ], required substitute goods and the seller, basing himself on article 44 [became CISG article 48 ], offered to remedy? It would seem reasonable to allow the seller to do so, and that was the purpose of his delegation's amendment. It should be noted, moreover, that the two alternatives put forward differed very little; it was the general idea underlying them that was important.

80. Mr. MANTILLA-MOLINA (Mexico) asked that consideration of the United States amendment should be adjourned as it was closely connected with the amendments submitted by Bulgaria and the Federal Republic of Germany. The proposals were in fact at variance with each other. The amendments suggested by the last two countries were intended to allow the buyer to require performance even if the lack of conformity constituted a fundamental breach of contract, whereas the amendment submitted by the United States would on the contrary strengthen the seller's rights. Moreover, the Spanish text of the amendment had not yet been circulated.

81. The CHAIRMAN announced that consideration of the United States amendment was adjourned and invited the Committee to consider the amendment by Singapore (A/CONF.97/C.1/L.148).

82. Mr. KHOO (Singapore) explained that his amendment was intended to make it easier to understand the principle stated in article 44(1) [became CISG article 48(1) ]. As it was now worded, seller who committed a breach of contract could not remedy it until the consequences of the delay in performance had been assessed. As the paragraph did not make it clear how to assess delay or how to determine whether it represented a fundamental breach of contract, it would be simpler to allow the seller to remedy provided he could do so without unreasonable delay.

83. Mr. SEVÓN (Finland) said that the introduction of the idea of unreasonable delay would enable the seller to defer performance of his obligations even longer. The seller was bound to remedy failure to perform before there was a fundamental breach of contract. If the expression "unreasonable delay" was used, the period during which the seller was entitled to remedy could in certain cases be extended. The only positive aspect of the proposal was that it shortened the time-limit allowed in certain cases.

84. Mr. HJERNER (Sweden) supported the amendment by Singapore.

85. Mr. KIM (Republic of Korea) considered that the idea of fundamental breach was a guarantee for the buyer and should not be dropped.

86. Mr. MANTILLA-MOLINA (Mexico) suggested adjourning consideration of the amendment by Singapore, since it was related to the other proposals on which the debate had already been postponed. In terms of substance, the amendment introduced the new idea of unreasonable delay, which was difficult to define, and discarded that of fundamental breach, which had already been defined in article 23 [became CISG article 25 ].

87. Mr. BENNETT (Australia) said he was of the same opinion as the representative of Mexico and did not think it was useful to discuss the matter further.

88. Mr. STALEV (Bulgaria) proposed that delegations in favour of amending article 44(1) [became CISG article 48(1) ] should work out a compromise text as quickly as possible.

89. The CHAIRMAN suggested that consideration of article 44 [became CISG article 48 ] as a whole should be adjourned, while hoping that the adjournment would not delay the work of the Committee too much.

90. It was so agreed.