Article 62 CISG

The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.

I.  Overview

Article 62 CISG contains a remedy generally recognised in civil law systems, namely the seller’s right to require the purchase price and (other) specific performance of the contract. In contrast, as a general rule, common law countries allow for specific performance only in limited circumstances (see discussion in Art 28 CISG above).

II.   Restrictions on Seller’s Right to Payment and (Other) Specific Performance

Under the ULIS, if the buyer’s non-payment of the purchase price amounted to a fundamental breach, the seller had to claim the purchase price immediately in order to avoid an automatic termination of the contract. Under the CISG, there is no ipso facto avoidance; avoidance of the contract will always require a notification (Arts 26, 49(2)(b), 64(2)(b) CISG). Still, the seller’s right, as it is stated in Article 62 CISG, is limited in two ways: first, the seller is deprived of this right if it has resorted to a remedy which is inconsistent with insistence on specific performance, which will be the case where it has declared the contract avoided (Art 64 CISG) or fixed an additional period of time for performance (Art 63 CISG).

The second restriction accrues from Article 28 CISG, according to which a court is not bound to enter a judgment for specific performance unless the court would do so under its own law. The ratio of Article 28 CISG is the divergence in the various domestic laws mentioned above.

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