Q 62-1
(a) What kind of seller’s rights does Article 62 CISG govern?
(b) Which generic term do we generally use for those rights?
(a) The seller’s rights to require performance by the buyer of its obligations.
(b) Specific performance of the contract.
Q 62–2
Why, from an international point of view, is Article 62 CISG not a self-evident provision?
Because some legal systems do not include a claim for the purchase price within the scope of claims for specific performance.
Q 62-3
In what way are the seller’s rights to specific performance restricted?
If the seller has resorted to a remedy inconsistent with this requirement, for example, by declaring avoidance of the contract, and if the remedy of specific performance would not be granted under the domestic legal system at the seat of the proceedings.
Q 62-4
Why could it be doubted whether Article 28 CISG applies to the seller’s rights for specific performance?
Because Article 28 CISG allows reference to domestic laws to determine whether or not a claim for specific performance is admissible.
Q 62-5
To which cases do the SGA and the UCC restrict the seller’s price action?
SGA: Property in the goods has passed or the due date for payment has passed.
UCC: Price has become due and goods have been accepted or goods lost or damaged after the risk of loss has passed to the buyer. Where the risk of the goods still lies with the seller, the seller must have been unable to resell them at a reasonable price or shown that such effort will be unavailing.
Q 62-6
Which principle governs the seller’s claim for the buyer to pay the purchase price under the PICC 2016?
The principle of specific performance of the contract.
Q 62-7
Can you find a provision under the CISG from which a general principle may be derived, which would possibly restrict the seller’s claim to the purchase price?
The principle of concurrent performance embodied in Article 58 CISG, whereby the seller can only claim payment of the purchase price upon delivery of the goods.
Q 62-8
(a) Did the court find that the seller had resorted to an inconsistent remedy? What was its reasoning?
(b) Who bears the burden of proof?
(a) No. The tribunal held the seller had not resorted to an inconsistent remedy. The Kazakh-law termination threat was treated as an error and never pursued, and the letter fixing an additional period for outstanding payments at most paused other remedies temporarily; it did not bar an Article 62 price claim.
(b) The seller bore the burden to prove delivery, contract terms, and non-payment (which it did). The buyer then bore the burden for affirmative defences (set off/“mutual settlements” with third parties), and failed to adduce evidence, so its defence failed.
