SPECIFICATIONS AND THE CONTRACTUAL RELATIONSHIP: ARTICLE 65 OF THE CISG IN LIGHT OF PECL ARTICLE 7:105

Abstract

Article 65 of the Convention on Contracts for the International Sale of Goods (the ”CISG”)1, setting forth an opportunity for the seller to impose certain specifications in light of the buyer’s failure to do so, raises particular questions of interpretation given the Principles of European Contract Law (the ”PECL”)2. CISG Article 65 sets forth a mechanism for the seller to supply specifications for a sale of goods transaction where the buyer has failed to do so. The PECL, on the other hand, states a similar right of parties in a generalized fashion, not merely applying to a narrow context. These provisions are set forth below, in comparison, with emphasis added to heighten the contrast and the key provisions of each section: CISG Article 65 PECL Article 7:105 (1) If under the contract the buyer is to specify the form, measurement or other features of t h e g o o d s a n d h e f a i l s t o mak e such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him. (2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding. (1) Where an obligation may be discharged by one of alternative performances, the choice belongs to the party which is to perform, unless the circumstances indicate otherwise. (2) If the party which is to make the choice fails to do so by the time required in the contract, then: (a) if the delay in choosing is fundamental, the right to choose passes to the other party; (b) if the delay is not fundamental, the other party may give a notice fixing an additional period of reasonable length in which the party to choose must do so. If the latter fails to do so, the right to choose passes to the other party. Thus, the CISG provision is limited to certain basic information about the goods, such as the: ”form, measurement or other features of the goods”, which have not been specified by the buyer where the contract calls for the buyer to do so by a certain date. The portion of the PECL which is more directly applicable is the second paragraph of Article 7:105, which applies ”If the party which is to make the choice fails to do so by the time required in the contract . …” Thus, the PECL does not delimit the remedy to basic choice of specifications pertaining to the goods. This approach of the PECL thus generalizes through the substantive provision of Article 7:105, rather than through offer and acceptance provisions, as will be shown to be done in the CISG, which was drafted a decade and a half earlier.3 There is thus movement over time toward a more relationship based principle, away from the technical features of offer and acceptance. This legal history observation may be eclipsed, however, by recent developments, discussed in Section IV, which may have greater practical effect.