UN Convention on Contracts for the International Sale of Goods (CISG)

Transcription

1 UN Convention on Contracts for the International Sale of Goods (CISG) Bearbeitet von Edited by Stefan Kröll, Loukas Mistelis, and Pilar Perales Viscasillas, List of Contributors: Yesim M. Atamer, LL.M., Gary F. Bell, Andrea K. Björklund, Stavros Brekoulakis, Michael Bridge, Petra Butler, Milena Djordjevic, Johan Erauw, Franco Ferrari, John Gotanda, Johnny Herre, Prof. Dr. Burghard Piltz, Anjanette Raymond, John Ribeiro, Djakhongir Saidov, Hiroo Sono, Frank Spohnheimer, and Alberto L. Zuppi 2. Auflage Buch. LXXXVI, 1340 S. In Leinen ISBN Format (B x L): 16,0 x 24,0 cm Recht > Handelsrecht, Wirtschaftsrecht > Unternehmensrecht Zu Leseprobe und Sachverzeichnis schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Kröll / Mistelis / Perales Viscasillas UN Convention on Contracts for the International Sale of Goods (CISG)

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4 UN Convention on Contracts for the International Sale of Goods (CISG) A Commentary edited by Stefan Kröll Loukas Mistelis Pilar Perales Viscasillas Second Edition 2018 C. H. BECK HART NOMOS

5 Published by Verlag C. H. Beck ohg, Wilhelmstraße 9, München, Germany, Co-published by Hart Publishing, Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, United Kingdom, online at: and Nomos Verlagsgesellschaft mbh & Co. KG Waldseestraße 3 5, Baden-Baden, Germany, nomos@nomos.de Published in North America (US and Canada) by Hart Publishing, c/o International Specialized Book Services, 930 NE 58 th Avenue, Suite 300, Portland, OR , USA, orders@isbs.com Recommended citation: [Author s name], Article [#], mn[#] in: Kröll / Mistelis / Perales Viscasillas, CISG, 2nd edition 2018 ISBN (C.H. BECK) ISBN (HART) ISBN (NOMOS) 2018 Verlag C. H. Beck ohg Wilhelmstr. 9, München Printed in Germany by Druckerei C.H. Beck (Same adress as the publishing house) Typeset by Reemers Publishing Services GmbH, Krefeld Cover: Druckerei C. H. Beck Nördlingen All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Verlag C. H. Beck, or as expressly permitted by law under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to C. H. Beck at the address above.

6 Foreword This is the second edition of this commentary. In the first edition we stated that there is hardly any need to provide a justification for a new commentary on such an important topic as the United Nations Convention on Contracts for the International Sales of Goods ( Vienna Convention or CISG ). The Convention was signed in 1980, currently has 89 Contracting States and is potentially applicable to up to two thirds of international trade in goods; sales contracts are a daily occurrence and the fundamental agreement in international commerce. There are many good publications on the topic, predominately in continental Europe or the United States, but we do hope that this commentary offers some new dimensions. First, this commentary aims to be an international approach to the CISG: it brings together 22 authors from sixteen countries in four continents with a wide range of profound academic and practical expertise. They include some very well established names in the field and few very promising newcomers. Second, the coverage is consistent in addressing the general principles and drafting history of each article before providing a detailed commentary and discussion of comparable rules in other instruments, namely the UNIDROIT Principles of International Commercial Contracts ( PICC ), and various regional instruments such as the Principles of European Contract Law ( PECL ), as well as Incoterms where necessary. Finally, this commentary highlights all the main commercial law aspects of international sales as well as covering civil law dimensions. Private international law and procedural aspects, such as burden of proof, are also consistently addressed. While we reflect on the doctrinal discussion on the CISG, we have made every effort to also be practical and give due regard to case law with the hope to make this a book useful for both academics and practitioners. We have considered all reviews of the first edition and various comments and recommendations we have received formally and informally. We hope that the second edition not only receives the same positive response as the first one, but also proves to be an improvement rather than a mere update. Not only the text but also the indices have been thoroughly updated. The three editors got to know each other and became friends through the Willem C Vis International Commercial Arbitration Moot. It has been a great experience to work with one another and solidify a long-standing academic friendship. The editors have a strong interest in international sales ignited and supported by a number of mentors and friends; these include Professor Eric Bergsten, Professor Norbert Horn, Professor Rafael Illescas, the late Professor Albert Kritzer and the late Professor Oskar Hartwieg. Warm thanks and appreciation are due to them for the enthusiastic and professional way in which they inspired us to work in this area of international commercial law. Thanks are also due to all contributors for their submissions and embracing the project with great motivation, drive and the necessary regard to the international application of the CISG and the need to promote uniformity in the application of the Convention. They have all worked to keep the project alive and bring it to fruition. Friendships were enhanced and strengthened through this project. Deadlines are not easy to keep in such large-scale projects but the gestation of the book remained within set targets and every effort was made to state the law as of October We also want to extend our thanks to our publisher and in particular, Dr Wilhelm Warth who worked with us on the first edition and Thomas Klich who supported us in V

7 Foreword the second edition who patiently encouraged us through deadlines and spared no effort to ensure the quality of editing and publishing one would expect from Beck. The editing co-ordination and the lion share of language and consistency editing fell on Dr Metka Potocnik, at the School of International Arbitration Queen Mary University of London. We thank her for the dedication, commitment and contribution to this publication. We hope you find this commentary useful and we are happy to receive any feedback. A book is almost never perfect, even in its second edition, so any suggestions for improvement in future editions are welcome and may be sent to any of three editors or to the following address: Thomas.Klich@beck.de. Stefan Kröll, Loukas Mistelis, Pilar Perales Viscasillas Cologne, London and Madrid February 2018 VI

8 Foreword... How to use this Commentary... List of Contributors... Table of Cases... Abbreviations... Abbreviated bibliography... Status of the CISG... V VII XXVII XXXI LXXI LXXV LXXXI Introduction to the CISG... 1 I. General Remarks... 1 II. Legislative History The search for an international sales law: driving forces and objectives From the UNIDROIT Initiative to the Hague Uniform Laws The drafting process and the adoption of the CISG... 4 III. Content and Legal Nature Legal nature of the CISG Structure and content at a glance Main Principles... 7 IV. The CISG s Global Reach and Grounds for Success... 8 V. Impact on International and Regional Harmonization and National Modernization... 9 VI. Application in Practice The original scepticism Increasing role in practice Commodity Trade VII. Advantages of the CISG VIII. Working with the CISG IX. Contract Drafting X. Electronic Commerce Preamble Part I. Sphere of Application and General Provisions Chapter I. Sphere of Application Article I. Importance and Role of the Provision General Drafting history Importance of provision II. Detailed Commentary Sales contracts Goods Internationality Automatic application if international sales contract Territorial application Contracting States Application by operation of conflict of laws III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Consumer sales Sales by auction Sales on execution or otherwise by authority of law Sales of stocks, shares, investment securities, negotiable instruments or money Sales of ships, vessels, hovercraft or aircraft IX

9 6. Sales of electricity Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision General Drafting history II. Detailed Commentary Contracts for the sale of goods to be manufactured or produced Service Contracts Software Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision General Drafting history II. Detailed Commentary Matters explicitly governed by the Convention Matters explicitly excluded from the Convention Other (non)contentious matters III. Comparable Rules Article I. Importance and Role of the Provision General Drafting History II. Detailed Commentary Death or personal injury caused by the goods Death or personal injury caused by other means Death or personal injury of third parties Liability for property damage Concurrent remedies III. Comparable Rules Article I. Importance and Role of the Provision General Drafting history II. Detailed Commentary Party autonomy Methods of opting out Derogation from or modification or exclusion of the CISG Opting in agreements to apply the CISG III. Comparable Rules Chapter II. General Provisions Article I. Importance and Role of the Provision II. Detailed Commentary Interpretation of the Convention (Art. 7(1)) Gap-filling within the CISG (Art. 7.2) III. Comparable Rules Article I. Importance and Role of Provision Introduction Legislative history II. Detailed Commentary First Paragraph The second paragraph: The reasonable understanding The third paragraph X

10 III. Comparable Rules Article I. Importance and Role of the Provision Introduction Art. 9 in the context of the CISG: Hierarchy of rules Validity II. Detailed Commentary Practices established between the parties: Art. 9(1) Agreed usages (Art. 9(1)) International usages of trade: Art. 9(2) Conflict between usages Procedural aspects/burden of proof Extended application of Art CISG and other instruments as usages of trade III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Autonomous versus domestic meaning of place of business Essential elements of the term place of business Place of business that has the closest relationship to the contract and its performance Crucial factors for the determination of the place of business that has the closest to the contract relationship Having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract Art. 10(b) III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Freedom of form Freedom of evidence Agreement of the parties requiring writing or evidence in writing Electronic form and evidence III. Comparable Rules Article I. Importance and Role of the Provision Introduction Drafting history II. Detailed Commentary Scope of Art Art. 96 reservation III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Scope of Art Expansive interpretation of Art. 13: fax and electronic means Interpretation of Art. 13 in light of other international uniform law instruments III. Comparable Rules Part II. Formation of the Contract Introduction to Articles I. Sphere of application and possibility of reservation according to Article Possibility of Reservation Temporal sphere of application II. Scope of application Introduction Standard Contract Terms XI

11 3. Other modes of contract conclusion Commercial letter of confirmation III. Exclusion of Part II Article I. Importance and Role of the Provision II. Detailed Commentary Proposal addressed to specific persons; invitation to make an offer Intention to be bound The specificity requirement The requirement of indication of the purchase price and price determination absent such indication Offer containing a clause excluding Part II Incorporation of standard contract terms III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Withdrawal Death, insolvency and lack of legal capacity of the offeror III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed commentary Revocation (para. 1) The end of the offeror s right to revoke The Irrevocability of the offer (para. 2) as per the offer itself Irrevocability of the offer (para. 2) due to the offeree s justified reliance and the prohibition of venire contra factum proprium Damages in case of revocation III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Rejection Legal effects of the rejection III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Acceptance by express declaration, acceptance by conduct, silence and inactivity Effectiveness of the declaration of acceptance Time for acceptance (para. 2) Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed commentary Reply containing additions or different terms Objection Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Beginning of the period for acceptance (para. 1) Calculation and expiry of the period of time (para. 2) The rule in Art. 20(2) as general principle upon which the CISG is based III. Comparable Rules XII

12 Article I. Importance and Role of the Provision II. Detailed Commentary Late acceptance and approval by the offeror Lateness due to delays in transmission (Art. 21(2)) Opportunity for speculation Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Withdrawal Effects of a withdrawal III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Time of contract conclusion Place of contract conclusion III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Oral declarations Declarations by other means Preventing declarations from reaching the addressee Burden of proof III. Comparable Rules Part III. Sale of Goods Table of Contents Chapter I. General Provisions Article I. Importance and Role of the Provision II. Detailed Commentary Departure from domestic laws Requirements for fundamental breach Examples of fundamental breach III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Form of notice The possibility of implicit notice Time period for notice to be given Risk of non-delivery of notice III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Dispatch rule and allocation of risk Effect of dispatch of notice Proof of dispatch Applicability to telephonic communications Applicability to communications Derogating from Art Appropriateness of the means of communication III. Comparable Rules XIII

13 Article I. Importance and Role of the Provision II. Detailed Commentary Specific performance under municipal law The provisions of the Convention Derogation from Art. 28 and party autonomy Seller s right to require payment of the price III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Contract modification The pre-existing duty rule at common law No-oral-modification clauses III. Comparable Rules Chapter II. Obligations of the Seller Article I. Importance and Role of the Provision Subject matter Primary obligations of the seller National laws Vienna Conference II. Detailed Commentary Seller s obligation to deliver Seller s obligation to transfer property Seller s obligation to hand over documents Party autonomy III. Comparable Rules Incoterms PICC and PECL DCFR Section I. Delivery the goods and handing over of documents Article I. Importance and Role of the Provision Subject matter Breach of contract Further context National laws Vienna Conference II. Detailed Commentary Obligation to deliver Sales involving carriage of the goods Kinds of acts of delivery Place of delivery Further obligations of the seller III. Comparable Rules Incoterms PICC and PECL DCFR Article I. Importance and Role of the Provision Subject matter Breach of contract Further context National laws Vienna Conference XIV

14 II. Detailed Commentary Notice of consignment Carriage of the goods Information regarding insurance III. Comparable rules Incoterms PICC and PECL DCFR Article I. Importance and Role of the Provision Subject matter Breach of contract Further context National laws Vienna Conference II. Detailed Commentary Party autonomy Time for delivery Art. 33(a), (b) and (c) Part-deliveries III. Comparable Rules Incoterms PICC and PECL DCFR Article I. Importance and Role of the Provision Subject matter Breach of contract Further context National laws Vienna Conference II. Detailed Commentary Handing over of documents Right to cure III. Comparable Rules Incoterms PICC and PECL DCFR Section II. Conformity of the goods and third party claims Introduction to Articles I. Importance of Section II in Practice II. Structure of Section II III. Differences Between the Liability Regimes for Non-conformity and Defects in Title IV. Differences in the Remedial Systems for Other Breaches V. Relationship to the National Remedies Article I. Importance and Role of Provision Overview on the content History Terminology Art. 35 as part of the CISG s liability regime for non-conformity II. Detailed Commentary The concept of non-conformity Art. 35(1) Art. 35(2) Art. 35(3) Exclusion of express and implied obligations as to conformity Burden of proof Relationship to the non-contractual remedies under national law XV

15 III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Art. 36(1) Art. 36(2) Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Prerequisites for the right to cure under Art Means of cure Legal consequences Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision Content Purpose of the duty to examine Art. 38 as part of the CISG s notification regime History of the provision and its character II. Detailed Commentary General remarks Prevailing contractual agreements, practices and usages Scope of the examination duty Extent of the examination duty Place of examination Time period for examination Examination in contract involving carriage: Art. 38(2) Art. 38(3) Costs of the examination duty Sanctions Waiver of the examination duty Burden of proof III. Comparable Provisions Article I. Importance and Role of the Provision General remarks Drafting history Purpose of the notice requirement Art. 39 as part of the CISG s examination and notification regime II. Detailed Commentary Introduction Prevailing contractual agreements, practices and usages Scope of application Notice The two years cut-off date in Art Consequence of a failure to give notice Exceptions Waiver and exclusions of the right to invoke belated notice Relationship with statutes of limitation Acceptance of the goods as conforming Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary General remarks XVI

16 2. Prevailing contractual agreements, practices and usages Scope of application Seller s actual or constructive knowledge Disclosure to the buyer Legal consequences and contractual modifications Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary General remarks Third party rights and claims Time of the defects in title Exclusion of liability Remedies for defects in title Art. 41 and domestic rules providing for nullity of the contract Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary General remarks Third party rights and claims Based on industrial property or other intellectual property Territorial limitations Relevant time Seller s actual or constructive knowledge Exceptions from liability under Art. 42(2) Remedies Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary General remarks Notice Notice period Legal consequences of a failure to give notice Exclusion of reliance on a failure to give notice in time: Art. 43(2) Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary General remarks Scope of application Reasonable excuse Legal consequences Burden of proof III. Comparable Rules Section III. Remedies for breach of contract by the seller Article I. Importance and Role of the Provision II. Detailed Commentary System of remedies (para. 1) Damages and other remedies (para. 2) No period of grace (para. 3) III. Comparable Rules XVII

17 Article I. Importance and Role of the Provision Purpose Outline Distinction between Art. 46(1) and Art. 46(2), (3): The concept of non-conformity II. Detailed Commentary General claim for performance (Art. 46(1)) Substitute delivery (Art. 46(2)) Repair (Art. 46(3)) Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Requirements Consequences Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Right to cure under Art. 48(1) Right to cure under Art. 48(2) Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Outline of the requirements Avoidance for fundamental breach (Art. 49(1)(a)) Avoidance using the Nachfrist-procedure (Art. 49(1)(b)) Declaration of avoidance and time limits Burden of proof Effects of avoidance III. Comparable Rules Article I. Importance and Role of the Provision History of the provision Importance of the provision Nature of the remedy Position in the system of remedies II. Detailed Commentary Requirements Legal consequences Burden of proof Interaction with other remedies III. Comparable Rules Article I. Importance and Role of the Provision The general rule: narrowing the view under Art. 51(1) The exception: re-expanding the view under Art. 51(2) Application to instalment contracts II. Detailed Commentary Prerequisites Legal consequences Burden of proof III. Comparable Rules XVIII

18 Article I. Importance and Role of the Provision II. Detailed Commentary Early delivery Excessive delivery III. Comparable Rules Early delivery Excessive delivery Chapter III. Obligations of the Buyer Article I. Importance and Role of the Provision II. Detailed Commentary Overview Purchase price Payment arrangements Payment clauses Duty to take delivery Further duties Choice of payment debt Practical considerations III. Comparable Rules Section I. Payment of the price Article I. Importance and Role of the Provision II. Detailed Commentary Scope of the duty Currency The buyer s breach of his obligation(s) Practical questions III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary When does it apply? How does it apply? Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Overview Practical considerations IV. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Overview Party agreement (Art. 57(1) first sentence) Payment at the seller s place of business (Art 57(1)(a), (2)) Payment against the handing over of the goods or of documents (Art. 57(1)(b)) Place of payment of monetary claims other than the purchase price Practical considerations III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Buyer s right to examine the goods (Art. 58(3)) XIX

19 2. Time the purchase price becomes due Divergent agreements Documents Rights of retention (Arts 58(1) second sentence and 58(2)) Payment ahead of time, part payment Application to other buyer s obligations Practical considerations III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary III. Comparable Rules Section II. Taking delivery Article I. Importance and Role of the Provision II. Detailed Commentary Content of the duty to take delivery Refusal to take delivery Practical considerations III. Comparable Rules Section III. Remedies for breach of contract by the buyer Introduction to Articles Article I. Importance and Role of the Provision II. Detailed Commentary Remedies available to the seller (Art. 61(1)) Damages can be cumulated with other remedies (Art. 61(2)) Court may not grant a period of grace (Art. 61(3)) III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary The right to specific performance Limitations on the right to specific performance III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary The fixing of an additional period of time of reasonable length (63(1)) The suspension of other remedies during the additional period of time (63(2)) III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary The right to declare the contract avoided (64(1)) Losing the right to declare the contract avoided (Art. 64(2)) III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Purpose of Art. 65 and the mechanism it sets in place Criticism of Art. 65 a cumbersome process which will not be used most of the time III. Comparable Rules XX

20 Chapter IV. Passing of Risk Article I. Importance and Role of the Provision II. Detailed Commentary Price-risk The risk transferred but reduced through the use of a remedy for the buyer An act or omission by the seller posterior alleviation of risk Determining which risks are transferred to the buyer Contractual risk Damage caused by the goods themselves III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Handing over the goods Clearly identifying the goods Art. 67 s relationship with terms agreed by the parties III. Comparable rules Article I. Importance and Role of the Provision II. Detailed Commentary Terminology Carrier and documents Retroactive allocation of risk Loss or damage to the goods III. Comparable Rules Article I. Importance and Role of the Provision II. Commentary Goods placed at buyer s disposal at the seller s place of business Goods placed at buyer s disposal other than at the seller s place of business Identification Incoterms III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary III. Comparable Rules Chapter V. Provisions Common to the Obligations of the Seller and of the Buyer Section I. Anticipatory breach and instalment contracts Introduction to Articles Article I. Importance and Role of the Provision II. Detailed Commentary The exercise of the right of suspension Stoppage in transit Suspension and burden of proof Adequate assurance Cessation of suspension Damages III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary General The relationship between Art. 72 paras 1 and XXI

21 3. The standard of prognosis The nature of events giving rise to the right to avoid Burden of proof Notice under Art. 72(2); burden of proof Adequate assurance; burden of proof Refusal to perform (Art. 72(3)); burden of proof Damages and mitigation of loss III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Definition Art. 73(1) Art. 73(2) Art. 73(3) III. Comparable Rules Section II. Damages Article I. Importance and Role of the Provision General remarks Drafting history II. Detailed Commentary Specific requirements Limitations on damages Calculation of damages Specific cases Other matters III. Comparable Rules Article I. Importance and Role of the Provision General remarks Drafting history II. Detailed Commentary Specific requirements Calculating damages Special considerations III. Comparable Rules Article I. Importance and Role of the Provision General remarks Drafting history II. Detailed Commentary Specific requirements Calculating damages Special consideration; anticipatory breach III. Comparable Rules Article I. Importance and Role of the Provision General remarks Drafting history II. Detailed Commentary Scope of application Extent of a duty Legal consequences III. Comparable Rules XXII

22 Section III. Interest Article I. Drafting History, Importance and Role of the Provision II. Detailed Commentary Scope and Requirements Calculation Modalities of Payment Cessation of an Interest Claim III. Comparable Rules Section IV. Exemption Article I. Importance and Role of the Provision II. Detailed Commentary Scope of application of the norm Prerequisites of exemption Exemption from liability for the conduct of third persons Risk allocation in specific cases Contractual risk allocation Duty to notify Burden of proof III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Prerequisites of exemption for non-performance Legal consequences Burden of proof III. Comparable Rules Section V. Effects of avoidance Article I. Importance and Role of the Provision Drafting history Basis of right of avoidance Release from performance obligations Surviving provisions New rights and duties Related contracts Agreements to avoid Property II. Detailed Commentary Restitution of performance Partial restitution Concurrency and security Place of restitution of goods Place of restitution of price Costs connected with restitution Exempted parties Time of restitution Risk III. Comparable Rules Article I. Importance and Role of the Provision Drafting history Time available for avoidance Availability of avoidance Substitute goods Loss of avoidance right in other cases XXIII

23 6. Avoidance and risk Avoidance by the seller II. Detailed Commentary Comparison with ULIS The condition of the goods: general Partial avoidance Deterioration of the goods Exceptions to restitutionary requirement for avoidance III. Comparable Rules Article I. Importance and Role of the Provision Drafting history General II. Detailed Commentary III. Comparable Rules Article I. Importance and Role of the Provision Drafting history General II. Detailed Commentary Concurrency Set-off Payment of interest Currency of interest Accounting for benefits from the goods III. Comparable Rules Section VI. Preservation of Goods Introduction to Articles Article I. Importance and Role of the Provision The function of Art Legislative history II. Detailed Commentary Conditions Consequences III. Comparable Rules Article I. Importance and Role of the Provision The function of Art Legislative history II. Detailed Commentary Buyer s duty to preserve the goods (Art. 86(1)) Buyer s duty to take possession of the goods (Art. 86(2)) III. Comparable Rules Article I. Importance and Role of the Provision The function of Art Legislative history II. Detailed Commentary Condition Consequences III. Comparable Rules Article I. Importance and Role of the Provision The function of Art Legislative history XXIV

24 II. Detailed Commentary Right of self-help sale (Art. 88(1)) Duty of emergency sales (Art. 88(2)) Use of proceeds of sale (Art. 88(3)) III. Comparable Rules Self-help and emergency sales Electronic notice Part IV. Final Provisions Article I. Importance and Role of the Provision II. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary III. Comparable Rules Article I. Importance and Role of the Provision II. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Illustration Illustration Illustration Article I. Importance and Role of the Provision II. Detailed Commentary III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary Illustration Illustration Illustration Illustration Illustration Illustration Illustration III. Comparable Rules Article I. Importance and Role of the Provision II. Detailed Commentary III. Comparable Rules Article Importance and Role of the Provision Article Importance and Role of the Provision Article Importance and Role of the Provision Article Importance and Role of the Provision XXV

25 Article Importance and Role of the Provision Importance and Role of the Text Bibliography Index XXVI