Published in Galston & Smit ed., International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender (1984), Ch. 7, pages 7-1 to 7-20. Reproduction authorized by Juris Publishing.
by Denis Tallon
At first sight, it is easier to describe the buyer's obligations under the CISG than those of the seller. The former subject is much less controversial. There are no major conflicting legal traditions, such as between those of the common law, with its "caveat emptor" principle, and those of the civil law with its elaborate institution of warranties favoring the buyer. The buyer's fundamental duties are c1earcut and [page 7-1] short-lived. This changes when credit is granted for the payment of the purchase price but in that case CISG is no longer pertinent, since the complex field of sale financing is outside its reach.
The difference between the obligations of the seller and those of the buyer is obvious at a glance, when one compares the number of articles devoted to them. Apart from the provisions about remedies, the proportion is exactly two to one: seven articles on the buyer's obligation, fourteen on the seller's. And this proportion was the same in ULIS: eight to sixteen.
This apparently minor subject should not call for much elaboration. And yet such a superficial analysis is deceptive. Even if the differences between legal systems on the obligations to pay the price and to take delivery are not glaring, they do exist and CISG had to make choices. Moreover, the general movement toward greater protection of the weaker party could not fail to have an impact on the buyer's obligations. Of course, according to article 2(a), CISG does not apply to sales "of goods bought for personal, family or household use." But this does not mean that on the international market there are no weak parties other than consumers. This market is now widely open to small operators -- especially in the European Common Market, the major aim of which is to abolish all restrictions on trade between Member States, all potential adherents to CISG. For those small operators, CISG ought to be helpful, first, because it provides a safe legal model for those who cannot afford expensive legal advice and, secondly, because it is likely to be applied and construed with a view to promote contractual justice by restoring the balance between parties of unequal bargaining power. Of course, the weaker party is not necessarily the buyer (he may for instance, be the farmer who sells his produce to a large international canned food manufacturer or a shipper of raw materials from a developing country), but it is usually the buyer who is in an inferior position. According to an old French saying, "qui vend le pot [page 7-2] dit le mot," that is to say, the seller has the upper hand. Protection of the buyer is secured primarily by reinforcement of the seller's duties but general principles, such as the good faith principle of article 7(1), must also be resorted to to prevent potential abuses of a dominant position.
How, then, to deal with the far from negligible problems which arise out of the regulation of the buyer's obligations? The commentary of the Convention article by article has already been excellently done [1] and it is useless to try and duplicate it. We will, rather, endeavor to stand back from a strict analysis of the texts and try to locate their solutions both in time, by comparing them with ULIS,[2] and in space, by comparing them with national legal systems, in particular, the French system. France, by Law No. 82-482 of June 12, 1982, was one of the first countries to ratify the Convention. This means that we will have a general view of the chapter dealing with the buyer's obligations (§ 7.02), and then pay special attention to the more controversial points (§ 7.03). [page 7-3]
This general view will cover both form and substance.
[1] Form
The buyer's obligations form the third chapter of the third part of the Convention (curiously called" Sale of Goods," as if the second part on "Formation of the Contract" were not also concerned with the sale of goods). The chapter opens with an introductory article (53) and is divided into three sections: the first two on the major obligations of the buyer (payment of the price in articles 54 to 59, and taking delivery in the lone article 60), and the third on remedies (articles 61 to 65). The ULIS chapter on the buyer's obligations was also divided into three sections, but differently organized: remedies were treated together with corresponding duties, so the third section was not devoted solely to remedies but to the "Other Obligations of the Buyer." The first article (69) imposed upon the buyer the obligation to take certain steps leading to payment. Quite properly, CISG article 54, which is substantially identical, is placed in the section on payment of the price. The duty to take these preliminary steps is now included in the obligation to pay the price and, in consequence, non-performance is an actual rather than an anticipatory breach.[3] The second article (70), on remedies for breach of these "other obligations" (section III) became article 64(1)(a) of CISG and was thus integrated with all the seller's remedies, according to the "unified contractual approach"[4] adopted by CISG.
On the other hand, CISG took out of ULIS chapter 5 ("Provisions Common to the Obligations of the Seller and of the Buyer") the rules on "Concurrence between Delivery of the Goods and Payment of the Price" (Section I) and added [page 7-4] them to the obligation to pay the price (article 58 CISG on time for payment), a dubious improvement which blots out the link between delivery and payment.
If we turn now from plan to style, we notice no major change from corresponding texts of ULIS. Most have been reproduced with very minor alterations,[5] if any, so that they keep their "continental" flavor -- which is not the case in other parts of CISG where the more detailed English and American drafting style has been adopted. A trace of the latter may, however, be detected in CISG article 59, which does away with the "need for any request or compliance with any formality on the part of the seller" to give rise to the duty to pay the price, whereas ULIS article 60 dispensed more briefly with "the need for any other formality." And some formal modifications which were introduced in the English version could not be correctly translated into French; thus, articles 57 and 58, where the English phrases "at any other particular place" and "at any other specific time," respectively, become the clumsy "en un autre lieu particulier" and" en un autre moment particulier" (the adjective "particulier" being quite superfluous). These slight discrepancies may appear trivial. They may also be signs of some misunderstandings as to substance.
[2] Substance
In this general survey of the substance of the chapter on the buyer's obligations, we shall first see how the general principles of CISG find application and then look at the presentation of these obligations as made by article 53.
The two most salient features of CISG are the non-mandatory character of its rules and the pervading good faith principle. Both are evident in chapter 3.
The first is stressed by many articles. The opening one, article 53, describes the obligations of the buyer as [page 7-5] "required by the contract and this Convention." The order of the terms shows their rank. Other articles refer in various ways to the preeminence of agreement; thus, article 55: "in the absence of any indication to the contrary," article 56:. "in case of doubt," and articles 57 and 58: "[i]f the buyer is not bound to pay the price at any other particular place" or "time"). And if articles 54, 59 and 60 do not have similar provisions, this does not make their rules mandatory. In the face of article 6, an a contrario reasoning could not be accepted. For instance, a formal notice of default could be agreed upon despite its exclusion by article 59.
Article 7 imposes the observation of good faith in international trade. Even if the text seems limited to interpretation, this principle has a much wider scope, in agreement with many national systems.[6] It permeates the buyer's obligations in a general way. But two specific applications may also be detected; articles 54 and 60(a) both deal with the preliminary acts required of the buyer for the exact performance of his obligation to pay the price and to take delivery. Both were already in ULIS; article 69, which was more detailed, became article 54;[7] and article 65 became article 60, the new text being more detailed in this instance.
Article 54 compels the buyer to take all the necessary steps to enable payment to be made. Its predecessor gave examples such as the acceptance of a bill of exchange, the opening of a documentary credit or the giving of a banker's guarantee. Of greater importance still is the requirement of compliance with the sometimes burdensome formalities imposed by mandatory rules in many countries for payments to be made abroad. Performance of such acts in some cases depends only on the buyer's diligence; in others, it needs an administrative authorization, and here, the buyer cannot be held liable for a refusal of such authorization as long as he has taken all reasonable steps to obtain it. [page 7-6]
The notion is the same in 60(a) which imposes on the buyer the obligation to do "all the acts which could reasonably be expected of him in order to enable the seller to make delivery." Here the test of reasonableness is explicit.[8] Such acts may include providing for carriage, for unloading, and for containers, according to the means of transportation prescribed,[9] and also compliance with administrative formalities, such as obtaining an import license, when these are the responsibility of the buyer.
For John Honnold,[10] these preliminary obligations are applications of a general duty to cooperate which may be inferred from a series of other rules.[11] Most of these obligations are obligations to give notice of some event or intent. Does this mean, in the words of Honnold, that "[t]hese many instances suggest that providing needed cooperation is one of the 'general principles on which [the Convention] is based'," under article 7(2)? The notion is found in the UCC in the title, although not in the text, of section 2-311 ("cooperation respecting performance"). However, to speak of "cooperation" is perhaps somewhat exaggerated. The term is used with a much stronger meaning in socialist countries, because in a planned economy both parties must collaborate throughout the period of the contract in order to realize the plan. In a free-market situation such as international trade, obligations are more one-sided; the basic rule is "chacun pour soi." It is normal that each party should try to get the utmost from the bargain, and to speak of cooperation is perhaps hypocritical. What is true is that both parties have an interest in the strict compliance [page 7-7] with the contract and that they have to respect the rules of the game. One of these rules is adherence to good faith, even if the benefit they draw from the contract is not up to their expectations. And it is natural to link the obligations of articles 54 and 60(a) to good faith; if a party has promised to do something and then does not take the necessary preliminary steps he clearly acts in bad faith.
Beyond these preliminary steps, the buyer has two major obligations: to pay the price and to take delivery. Article 53 announces them both as article 56 ULIS did, but article 62 refers also to his "other obligations."[12] And an example is found in article 65 where the obligation "to specify the form, measurement or other features of the goods" may be performed by the seller himself under certain conditions if the buyer fails to do so. The contract, of course, may stipulate other obligations, such as terms of resale (price, exclusivity, etc.), information to be given, and an infinite variety of collateral obligations.
We shall now concentrate on the two major obligations, or at least on the more controversial points which they raise. [page 7-8]
§ 7.03 Some Controversial Points
These two obligations are of unequal legal importance. As for payment of the price, conflicting legal traditions obviously may give rise to disputes of construction. But even delivery is not quite as simple as it may appear at first sight.
[1] The Price
Although section I is headed "Payment of the Price," it deals not only with payment but also with determination of the price. Of its six articles, one (article 54) has already been commented upon. Another (article 56) is of minor importance. As for the rules as to place and time of payment (articles 57 and 58), these are residual rules; most sales include specific terms on these matters, and these rules accord with international practices and standard contracts as well as with the majority of national solutions. This is not the case with article 55, which deals with open-price contracts, and article 59, which rejects any formality or notice before payment. Many European laws are in sharp conflict with the CISG and ULIS [13] solutions.
According to article 55, when the parties have not directly or indirectly fixed the price, they are presumed to have adopted "the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned," which we shall [page 7-9] call, for short, the "normal price." ULIS article 57 envisaged the same situation but the term of reference was the price "generally charged by the seller."[14] Article 55 is a difficult text. There is, first of all, a problem of delimitation. Obviously it deals with the initial indefiniteness of the price. But what about supervening indefiniteness -- a frequent occurrence in inflation-riddled countries where index clauses are usual -- when the index of reference is no longer calculated or published? It could be difficult to extend article 55 by analogy and to substitute in a long-term contract of sale a "normal" price when the parties have openly chosen indexation. It may also be difficult to determine a normal price for unique or rare goods or for goods with a limited market; but it is not easy to imagine an open-price contract in such circumstances.
More arduous is the question of reconciling articles 55 and 14. There is at least an apparent contradiction between these two texts. Article 14 defines an offer: it must indicate the goods and expressly or implicitly fix or make provisions for determining the quantity and the price. But article 55 does not require the fixing of a price to conclude a valid contract. This discrepancy did not appear as clearly in ULF or ULIS, as the corresponding text (ULF article 4) did not define what is a "sufficiently definite" offer and thus did not refer to a fixed price. How then, now, may a contract be validly concluded when the offer from which it stems does not fix or provide for fixing the price? The UNCITRAL comnientary on the text of the 1978 Draft Convention (under article 51) saw the difficulty and came to the conclusion that article 51 is effective only if one of the parties has his place of business in a Contracting State which has ratified or accepted the Convention as to Part III (Sales of Goods) but not as to Part II (Formation of the Contract) and if the law of that State provides that a contract can be validly concluded without a price. Such an interpretation could almost annihilate CISG [page 7-10] article 55 since the conditions for its application would seldom be met. Another view, which rests on the new redaction of article 55, gives this text its full meaning;[15] if they say nothing, the parties are presumed to have adopted the normal price, so there is always a price. This technique smacks of the current practice of implied terms so often used in this period of pure voluntarism, often condemned in a more enlightened age. Graver still, part of article 14 becomes meaningless; even if no reference is made as to price, a proposal is still a valid offer presumably made at a "normal" price. This, of course, is clearly opposed to the intent of the drafters. So it appears that we are faced with an insuperable contradiction, and we must choose between two bad solutions. The second is less so than the first; it does give effect to article 55 and does not deprive article 14 of all meaning.
Even so, article 55 is still a nest of problems. The first arises from the preliminary condition for its application: there must be a validly concluded contract. But may a contract be validly concluded without a price? It must be remembered that under article 4, CISG is not concerned with the validity of the contract and that in legal systems such as the French, an agreement on price is necessary for the validity of a sale.[16] This requirement is generally considered to be the application of a wider principle, the necessity of "un objet certain qui forme la matière de l' engagement".(Civil Code article 1108).[17]
Two recent series of French cases have drawn attention to this requirement. The first concerns the so-called "beer clauses" contained in agreements under which a brewery grants a loan to a public house, which promises to deal exclusively with the brewery at the price usually charged for similar goods at the same place (a formula very close to that [page 7-11] of article 55). In 1978, the Cour de cassation held this widely used clause to be void under Civil Code article 1129, which requires that an amount, if uncertain, shall be determinable.[18]
The second series of cases involved another common clause, this time found in general conditions for car sales. The order form mentions a tentative price, the actual price being that of the price list in effect at the time of delivery. The Cour de cassation has denied remedies in specific performance or in damages if the buyer refuses to take delivery of the car ordered because of an increase in price, holding that the price had not been agreed upon when the order was signed; the sale could only be concluded if and when the buyer accepted the actual price, which he was free to refuse to do.[19]
These cases have been widely discussed and sometimes criticized (especially the first group) for their dogmatic approach and for flowing from "uncommercial ideas."[20] And yet one may perceive a philosophy -- not expressly advanced by the court [21] -- of protection of the weaker party. In these cases (more, perhaps, in the second group than the first), the buyer is in the hands of the seller, who may fix an extortionate price or, more likely, delay delivery in order to benefit from a price rise. Consumer protection is outside the Convention but, as already mentioned, there are weaker parties in international sales agreements and they need protection. This is not the place to discuss the merits of the French solution, but it is necessary to draw attention to the fact that municipal courts may circumvent article 55 by [page 7-12] holding invalid for reasons of public policy a sale with an indefinite price.
Even if no question of validity arises, it may be difficult for a court or an arbitrator to admit there has been a contract, that is to say, that the parties have agreed upon a sale, without a reference to the price. The idea that the price is an essential element of the contract is still very much alive. Examples of a more flexible approach are to be found in the United States, but UCC 2-305 has a much wider scope than article 55.[22] In England, section 8(2)of the Sale of Goods Act 1979, according to which "[w]here the price is not determined ... the buyer must pay a reasonable price" does raise some difficult problems of interpretation and many doubts, for instance, about clauses such as "at a price to be agreed" or "to be negotiated" when the parties cannot agree. Case law is uncertain and distinctions have been suggested, such as whether or not there is an arbitration clause or whether the contract is executed or executory.[23] Under article 55, it would be difficult to admit the validity of such a contract as the implied reference to the normal price could not be substituted for the lack of agreement of the parties. The presumption is rebutted ab initio.
Another troublesome clause could be one which leaves the price to be fixed by one of the parties. In French law, as we have seen, the sale would not be valid. For UCC 2-305(2), "a price to be fixed by the seller or by the buyer means a price for him to fix in good faith." What about CISG? According to the strict application of article 55, the parties have by such a clause made provision for determining the price. The unfortunate conclusion would be that the seller could fix the price at his discretion (and not the "normal" price). The only limit would, again, be the general clause of good faith. [page 7-13]
Even when the "normal price" rule is resorted to, it may lead to injustice, for there are such things as de facto monopolies or concerted practices to charge an abnormally high price to all clients, even though such practices are largely prohibited by municipal rules or by the EEC regulation. A normal price as defined by article 55 may be unreasonable, but article 55 gives the court no power to control unreasonable prices, as long as they are "generally charged at the time of the conclusion of the contract for such goods under comparable circumstances in the trade concerned."
Article 55 is indeed a difficult text, even if it is in line with many modern sales laws. But one must not exaggerate this difficulty as it deals with exceptional situations.
Article 59 may be another source of contention in providing that payment is due without any request or compliance with any formality on the part of the seller. This solution, as we have seen, was already in ULIS in a slightly different form. And it is embodied in the old Latin tag: "Dies interpellat pro homine," which is adopted in some legal systems. But others are more lenient to the debtor. The required formal notice of default gives him a last chance to perform, before the creditor may use his remedies. This system of "mise en demeure" may be required in every case (French Civil Code 1139)[24] or only when no firm date for performance has been agreed upon (BGB § 284; Swiss Code of Obligations, article 102;' Italian Civil Code, article 1219; cf. the draft Civil Code of the Netherlands, article 6.1.8.6 § 2).
From the comparison of article 59 with these laws, a [page 7-14] question appears immediately: article 59 is limited to the obligation to pay the price, whereas "mise en demeure" is a compulsory requirement for every kind of obligation. One may wonder then if the exemption from any formal notice is limited to payment of the price or if it must be extended by analogy to all other obligations arising from the sales contract. For instance, to limit ourselves to the buyer's obligations, must the seller give notice to the buyer to take delivery? In accordance with CISG article 7, one might look for a general principle for guidance. John Honnold suggests the existence of such a principle of "communications to enable a party to know where the other stands,"[25] a principle implied in a number of texts.[26] Does not this principle explain the need of a notice and make the rule in article 59 an exception? One of the main reasons for a "mise en demeure" is to avoid all ambiguity about the exact time of performance when the contract is not quite clear about it or when the aggrieved party, by his passive attitude, has induced the other party to think that he was giving him a delay to perform. It could be alleged that the general principle of communication imposes upon the aggrieved party the duty to specify the delay or to inform the other party that instant performance is now required. Here again, the principle of communication could be presented as an aspect of the more general principle of good faith. And if article 59 departs from this principle, it may be because the obligation to pay the price is stricter than the other obligations of the buyer and even of the seller.
Whatever construction is adopted, the theoretical difference between the two systems ("mise en demeure" and article 59) is often very much reduced in practice. Thus, commercial usages will call for the sending of an invoice, which could be considered as a necessary preliminary to payment.[27] And when the contract makes payment due [page 7-15] when the seller places the goods at the buyer's disposal, the seller has to notify the buyer of this fact, a notice which may be considered as a request for payment.[28]
There is also a great factual analogy between the "Nachfrist" or grace period used for payment of the price (CISG article 63(1)) and the delay afforded to the debtor before the "mise en demeure" under French law. The only difference is that under French law, interest is due (at the rate fixed by law: Civil Code article 1153, paragraphs 1 and 2) from the time of the" mise en demeure" (article 1146), whereas under CISG article 63 the fixing of an additional period for performance does not deprive the seller of any right he may have to claim damages for delay.
Another interesting parallel may be drawn on the question of the passing of risk. In French law (Civil Code article 1138, paragraph 2) notice to take delivery returns the risk to the buyer. In CISG a similar result is achieved by 69(1) and 69(2): the risk passes to the buyer "from the time when the goods are placed at his disposal and he commits a breach of contract by failing to take delivery." And he is in breach only if he knows that the goods are at his disposal, that is to say, when the seller has advised him of the fact.[29] If the buyer is bound to take over the goods at a place other than the place of the seller, the risk passes, according to article 69(2), when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. He will be made aware of this by a notice from the seller or his agent.
Finally, we must remember that article 59 may be varied by agreement. Such an agreement could be useful in many situations and may be found in many standard contracts.[30] [page 7-16]
The conclusion is that two approaches may in practice lead to somewhat similar solutions, mainly under the cover of the good-faith principle.
[2] Taking Delivery
With the obligation to take deliverey (article 60), we enter smoother waters. We have already seen that the performance of this obligation requires the buyer to do all the acts which could reasonably be expected of him in order to enable the seller to deliver the goods (article 60(a)). The second step is to take delivery (article 60(b)).[31] On its face this is a very simple obligation. And yet it is an operation which is at the very core of the sale and is linked with all the essential duties and effects of the contract.
First of all, article 58 links payment of the price with the delivery, and it specifies moreover (even if it was not strictly necessary) that the seller may make such payment a condition for handing over the goods or documents. And, of course, "taking delivery" is the other side of "making delivery" even if, between the two, the buyer has a right to inspect the goods and eventually to reject them.
The time when the goods are to change hands is also important for the passing of risk. In the rather elaborate system of CISG, the principle is that the risk passes to the buyer "when he takes over the goods" or, if he is late, from the time when the goods are placed at his disposal (article 69(1)) or, under different conditions already mentioned (article 69(2)), when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal.
Moreover, the buyer may have to take delivery "on behalf [page 7-17] of the seller" if "goods dispatched to him have been placed at his disposal at their destination and he exercises his right to reject them" (article 86(2)). He has then the obligation to take all reasonable measures to preserve the goods, which is an application of the duty under article 77 to mitigate. The same obligation exists when he has received the goods and he intends to exercise his right of rejection (article 86(1)).
All this shows that "taking delivery" may be a complex process and may cover some time between the moment the goods are placed at the buyer's disposal until he takes final possession of them.
It is particularly interesting to have a look at the remedies the seller has in case of failure of the buyer to take delivery on time. If the buyer is late, the seller has to preserve the goods, at the buyer's expense (article 85). And he has a right of retention which allows him to retain the goods until he is reimbursed his reasonable expenses. But in many legal systems, the technique of "astreinte," that is to say, a court order to perform, together with a condemnation to pay punitive damages calculated in proportion to the delay (so much per day, per week, and so forth), is widely used in such situations and is very efficient [32] as an adjunct to ordinary specific performance. Despite CISG article 28,[33] which limits the possibility of specific performance in deference to the common law, nothing prevents a municipal court from ordering specific performance under "astreinte" according to the lex fori.
The contract may also provide for a penalty clause, [page 7-18] calculated in the same way as the astreinte. Here there may be some difficulty owning to the traditional hostility of common law jurisdictions towards penalties. In both cases, it will be easier for the seller to compel the buyer to take delivery whenever he may sue him for specific performance with astreinte before a non-common law court or to seek enforcement of a penalty clause. There is still work to do in the field of unification of contracts. [page 7-19]
It is not easy to give a global judgment as to the treatment of the buyer's obligations under CISG. This subject is relatively less "hot" than many others. This may explain why the solutions are less imaginative than those which have been elaborated in other parts of the Convention (conformity, for instance). The ground was well prepared by ULIS. Improvements were few and most changes are minor ones. Even so, the application of CISG may create some tensions due to the difference in legal systems. The Convention had to choose. It would be vain to regret some of these choices on the ground that they were not made in favor of one's own system, but it is important to detect the points where clashes may occur in order to try and find solutions which will round off the angles. It is now up to the judges and arbitrators to ensure the smooth application of the Convention, in this field as in others. [page 7-20]
FOOTNOTES
1. J. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (1982) [hereinafter cited Honnold].
2. H. Dölle, Kommentar zum Einheitlichen Kaufrecht (1976) [herein after cited Dölle].
4. Honnold no. 26. Perfect unity would be to have one chapter on both seller's and buyer's remedies.
5. CISG arts. 53, 54, 56 and 60.
6. BGB § 242; French Civil Code art. 1134, para. 3; UCC 1-203.
7. And has found a different place, as we have seen.
8. ULIS art. 65 was just a little more rigorous, referring to the acts as being "necessary."
9. See, for instance, Incoterms 1980, FOB, B 1; FOR/FOT, B 1, in The Transnatiqnal Law of International Commercial Transactions 387, 392, 389 (ed. N. Horn & C. Schmitthoff 1982).
11. Arts. 19(2),21(2), 32, 48(2), 58(3), 60(a), 65, 71, 73(2), 79(4) and 85-88. Honnold no. 342 note 2.
13. ULIS has been qualified as "essentially the product of the legal scholarship of Western Europe" (Honnold no. 9), an opinion shared by many American commentators. It is pleasant to note that the French Government refused to propose the enactment of ULIS and ULF to the Parliament because they were considered as too "Anglo-Saxon" (see A. Tunc, Conclusion du Colloque de la Fondation intemationale pour l'enseignement du droit des affaires, in Les ventes intemationales de marchandises 407, 413 (1981).
14. The UNCITRAL Draft Convention took an intermediate position (art. 51). Cf. ULIS art. 57; Dölle 353-357.
16. French Civil Code arts. 1589, 1591 and 1592.
17. See also art. 1129 on definiteness of the object.
18. Cass. com., 11 Oct. 1978, D.1979.135 note R. Houin; J.C.P.1979.II.19034 note Y. Loussouarn; Nancy, 13 juin 1979, Casso com. 14 janv. 1980, J.C.P.1981.II.19585 note B. Gross.
19. Cass. civ. lere, 20 mai 1981, J.C.P.1982.II.19840 note G. Raymond.
20. In the words of the Comment to UCC 2-305.
21. One must remember that French judges, especially at the highest level, do not give extensive reasons (motifs) for their decision.
22. Cf., for contracts in general, E. Farnsworth, Contracts 197, § 3.28 (1982).
23. P. Atiyah, The Sale of Goods 20-21 (6th ed. 1980).
24. Even if case law has reduced the formal requirements of art. 1139 and has limited the need for a notice to situations where performance is still possible or still of interest for the aggrieved party. D. Allix, Reflexions sur la mise en demeure, JCP.1977.I.2844.
26. Arts. 19(2), 26, 39, 43, 48(3), 63, 71(3), 72(2), 79(4), and 88(1).
30. For instance, United Nations Economic Commission for Europe, General Conditions of Sale for the Import and Export of Durable Consumer Goods and of other Engineering Stock Articles (No. 730, art. 7.2(a)), and General Conditions for the Supply of Plant and Machinery for Export (No. 574, art. 8.7).
31. To the correct legal term of "retirement," which sounds just a bit obsolete, the French version has preferred the clumsy but more understandable for the general public "prise de livraison." The term "retirer" has been kept in art. 60(b).
32. In France, Law No. 72-626 of 5 July 1972 confirmed a long-established practice of the courts. See also the Benelux convention of 16 November 1973, the resulting uniform law being introduced in the Netherlands and in Luxembourg in 1978 and in Belgium in 1980 (Law of 31 January 1980); Y. Lobin, L'astreinte en matière civile depuis la loi du 5 juillet 1972, in 2 Mélanges P. Kayser 152 (1979); S. David-Constant, La fin d'une disgrâce: l'avènement de l'astreinte en droit beige, in Etudes A. Weill 185 (1983).
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Institute of International Commercial Law - Last updated December 15, 2004