|
|
|
|
|
|
|
|
|
|
|
|
Remedies for Non-performance - Perspectives from CISG, UNIDROIT Principles and PECL,
Liu Chengwei *
INTRODUCTION
[INTRODUCTION]
LIST OF ABBREVIATIONS
A. For Documents
B. For Journals
C. For Organizations
D. For Citations
PART I. GENERAL REVIEW
CHAPTER 1. SOURCES OF INSPIRATION
[CHAPTER 1. SOURCES OF INSPIRATION]
1.1 INTRODUCTION
1.2 OVERVIEW OF THE STUDIED INSTRUMENTS
1.2.1 CISG
1.2.2 UNIDROIT Principles
1.2.3 PECL
1.2.4 Brief Comparison
1.3 MAJOR SOURCES OF INFORMATION
CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE
[CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE]
2.1 INTRODUCTION
2.2 THE CONCEPTS: BREACH OF CONTRACT vs. NON-PERFORMANCE
2.3 REMEDIAL SCHEMES OF THE STUDIED INSTRUMENTS
2.3.1 CISG Part III (Partial)
2.3.2 UNIDROIT Principles Chapter 7
2.3.3 PECL Chapters 8, 9
2.3.4 Concluding Remarks
2.4 STRUCTURE OF THIS PRESENTATION
PART II. PRESERVING PERFORMANCE
PART III. TERMINATION
PART IV. DAMAGES
PART V. EXCUSES
PART II. PRESERVING PERFORMANCE
CHAPTER 3. SPECIFIC PERFORMANCE
[CHAPTER 3. SPECIFIC PERFORMANCE]
3.1 COMPRISED APPROACH UNDER THE CISG
3.1.1 Introduction
3.1.2 Primacy of Specific Performance under Arts. 46/62
3.1.3 Forum's Rule under Art. 28
3.2 BUYER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 46
3.2.1 Introduction
3.2.2 General Rule: Art. 46(1)
3.2.2.1 Right to require performance
3.2.2.2 Non-resorting to inconsistent remedies
3.2.3 Right to Demand Cure: Arts. 46(2) and 46(3)
3.2.3.1 In general
3.2.3.2 Delivery of substitute goods: Art. 46(2)
3.2.3.3 Right to repair: Art. 46(3)
3.2.3.4 Time limit restriction
3.2.3.5 A summary
3.3 SELLER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 62
3.3.1 Rationale of Art. 62
3.3.2 General Application
3.3.3 Potential Problems
3.4 UNIFORM REMEDY IN UNIDROIT PRINCIPLES / PECL
3.4.1 Introduction
3.4.2 Performance of Monetary Obligation
3.4.2.1 Money due generally recoverable
3.4.2.2 Money not yet due
3.4.3 Performance of Non-monetary Obligation: In General
3.4.4 Exceptions to Performance of Non-monetary Obligation
3.4.4.1 The principle and exceptions
3.4.4.2 Performance impossible
3.4.4.3 Unreasonable burden
3.4.4.4 Performance from another source available
3.4.4.5 Performance of an exclusively personal character
3.4.4.6 Unreasonable delay in requiring performance
3.4.5 Right to Require Remedying of Defective Performance
3.4.6 Other Issues
CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE
[CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE]
4.1 GENERAL CONSIDERATIONS
4.2 RATIONALE UNDERLYING THE OPTIONAL APPROACH
4.2.1 Optional Approach under the Studied Instruments
4.2.2 Underlying Rationale
4.2.3 Granting Additional Period in Two Situations
4.3 SETTING OF A NACHFRIST NOTICE
4.3.1 Transmission of the Intention
4.3.1.1 Form of the notice
4.3.1.2 Risk in transmission
4.3.2 Fixing of the Time-limit
4.3.2.1 Fixed period
4.3.2.2 Reasonable length
4.4 EFFECTS OF SERVING A NACHFRIST NOTICE
4.4.1 Remedies Available/Suspended during the Period
4.4.2 Early End of the Existing Uncertainty upon Rejecting Notice
4.4.3 Termination upon Expiry of the Extension
4.4.3.1 In general
4.4.3.2 CISG approach
4.4.3.3 UNIDROIT Principles / PECL approach
CHAPTER 5. CURE BY NON-PERFORMING PARTY
[CHAPTER 5. CURE BY NON-PERFORMING PARTY]
5.1 INTRODUCTION
5.2 CONDITIONS FOR INVOKING CURE
5.2.1 In General
5.2.2 Reasonableness of Notice
5.2.3 Appropriateness of Cure
5.3 SELLER'S RIGHT TO CURE AND BUYER'S RIGHT TO TERMINATION
5.4 EFFECTS OF EFFECTIVE NOTICE
5.4.1 Right to Inquire vs. Duty to Accept Cure
5.4.2 Suspension of Inconsistent Remedies
5.4.3 Retained Rights of the Aggrieved Party
CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY
[CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY]
6.1 GENERAL CONSIDERATIONS
6.2 FEATURES OF CISG ART. 50
6.2.1 Unique Role and Justification
6.2.2 Self-help Remedy
6.2.3 Seeming Advantages
6.3 IN CONTRAST WITH DAMAGES
6.3.1 Introduction
6.3.2 Distinctions from Damages under the CISG
6.3.2.1 Diverse ratio legis
6.3.2.2 Different manner in calculation
6.3.2.3 Other differences
6.3.2.4 A summary
6.3.3 An Alternative to Damages
6.3.3.1 Introduction
6.3.3.2 In conjunction with force majeure
6.3.3.3 In case of falling market
6.3.3.4 Upon difficulty in proving damages
6.3.3.5 A summary
6.4 ESSENTIALS OF CISG ART. 50
6.4.1 Scope of Application
6.4.1.1 General application in case of non-conformity
6.4.1.2 Ambiguity over defects in title
6.4.2 Exercise of the Right to Price Reduction
6.4.3 Calculation of Proportional Reduction
6.4.3.1 Decisive point: time of delivery
6.4.3.2 Place for comparing
6.4.4 Limited by the Cure
6.5 STATUS OF THE PRICE REDUCTION UNDER UNIDROIT PRINCIPLES / PECL
6.5.1 Exclusion under the UNIDROIT Principles
6.5.2 Inclusion under the European Principles
PART III. TERMINATION
CHAPTER 7. RIGHT TO TERMINATION
[CHAPTER 7. RIGHT TO TERMINATION]
7.1 GENERAL CONSIDERATIONS
7.2 GROUNDS FOR TERMINATION
7.3 CONCLUDING REMARKS
CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE
[CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE]
8.1 GENERAL CONSIDERATIONS
8.2 FORESEEABLE SUBSTANTIAL DETRIMENT
8.2.1 Introduction
8.2.2 Substantial Detriment
8.2.2.1 Existing detriment
8.2.2.2 Substantial deprivation
8.2.2.3 Discernible expectations
8.2.3 Foreseeability
8.2.3.1 Introduction
8.2.3.2 Test for foreseeability
8.2.3.3 Time for foreseeability
8.2.3.4 Burden to prove unforeseeability
8.3 OTHER ELEMENTS IN DEFINING FUNDAMENTAL NON-PERFORMANCE
8.3.1 Strict Compliance of Essence
8.3.2 Intentional Non-performance
8.3.3 No Reliance on Future Performance
8.3.4 Disproportionate Loss
8.4 CONCLUDING REMARKS
CHAPTER 9. ANTICIPATORY NON-PERFORMANCE
[CHAPTER 9. ANTICIPATORY NON-PERFORMANCE]
9.1 GENERAL CONSIDERATIONS
9.2 GROUNDS FOR SUSPENSION
9.3 SELLER'S RIGHT TO STOP GOODS IN TRANSIT UPON SUSPENSION
9.4 DUTY TO GIVE NOTICE IN EXERCISING SUSPENSION
9.5 RESTORING PERFORMANCE BY GIVING ADEQUATE ASSURANCE
9.6 TERMINATION UPON ANTICIPATORY FUNDAMENTAL NON-PERFORMANCE
9.6.1 In General
9.6.2 Clear Indication of A Fundamental Non-performance
9.6.3 Notice Given in case of Termination
9.7 ADEQUATE ASSURANCE OF DUE PERFORMANCE
9.7.1 Purpose of Rule
9.7.2 Non-receipt of Adequate Assurance
9.8 CONCLUDING REMARKS
CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART
[CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART]
10.1 TERMINATION OF INSTALLMENT CONTRACTS: CISG ART. 73
10.2 TERMINATION OF FUTURE INSTALLMENTS: CISG ART. 73(2)
10.3 TERMINATION OF A CONTRACT AS A WHOLE: CISG ART. 73(3)
10.4 PARTIAL TERMINATIO: CISG ART. 51
10.5 COMBINED APPROACH: PECL ART. 9:302
10.6 CONCLLUDING REMARKS
CHAPTER 11. DECLARATION OF TERMINATION
[CHAPTER 11. DECLARATION OF TERMINATION]
11.1 NO AUTOMATIC TERMINATION
11.2 INFORMALITY OF THE NOTICE
11.3 TRANSMISSION OF THE INTENTION
11.4 RISK IN COMMUNICATION
11.4.1 CISG Approach
11.4.2 Receipt Principle under the UNIDROIT Principles
11.4.3 Combined Approach under the PECL
11.5 TIME LIMIT FOR THE DECLARATION: IN GENERAL
11.6 DECLARATION WITHIN REASONABLE TIME
11.6.1 Definition of reasonable time
11.6.2 CISG Approach
11.6.3 UNIDROIT Principles / PECL Approach
11.6.4 Concluding Remarks
CHAPTER 12. EFFECTS OF TERMINATION
[CHAPTER 12. EFFECTS OF TERMINATION]
12.1 INTRODUCTION
12.2 RELIEF OF FUTURE PERFORMANCE
12.3 RETROSPECTIVE OR PROSPECTIVE APPROACH
12.4 UNAFFECTED RIGHTS AND OBLIGATIONS AFTER TERMINATION
12.4.1 Continuing Right to Claim Damages
12.4.2 Unaffected Clauses Intended to Apply despite Termination
12.5 RESTITUTION
12.5.1 In General
12.5.2 Entitlement of Parties to Restitution on Termination
12.5.3 Restitution under the PECL
12.5.3.1 Property reduced in value: Art. 9:306
12.5.3.2 Recovery of money paid and property: Arts. 9:306, 9:307
12.5.3.3 Concluding remarks
12.5.4 Restitution of Benefits Received
12.5.5 Exceptions: Restitution Not Possible or Appropriate
12.5.5.1 CISG approach: making restitution a prerequisite for avoidance
12.5.5.2 UPICC/PECL approach: focusing on the allowance upon impossible restitution
12.5.5.3 Comparative perspectives
12.5.5.4 Concluding remarks
PART IV. DAMAGES
CHAPTER 13. GENERAL MEASURE OF DAMAGES
[CHAPTER 13. GENERAL MEASURE OF DAMAGES]
13.1 RIGHT TO DAMAGES
13.2 FULL COMPENSATION
13.3 RECOVERABLE LOSSES
13.4 COMPENSATION OF NON-PECUNIARY LOSS
13.5 COMPUTATION OF LOSSES AND GAINS
CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES
[CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES]
14.1 GENERAL CONSIDERATIONS
14.2 FORESEEABILITY OF LOSS
14.2.1 In General
14.2.2 Test for Foreseeability
14.2.3 Party Concerned and Reference Point
14.2.4 Evaluation of Foreseeability
14.2.5 Content of Foreseeability
14.2.6 Concluding Remarks
14.3 CERTAINTY OF HARM
14.4 CONTRIBUTION TO HARM
14.4.1 In General
14.4.2 Ways of Contributing to the Harm
14.4.3 Remedies Affected by the Contribution
14.4.3.1 Remedies available upon non-performance caused solely by the contribution
14.4.3.2 Damages proportionately reduced due to partial contribution
14.5 DUTY TO MITIGATE
14.5.1 In General
14.5.2 Reasonable Measures Taken
14.5.3 Effects of Failure to Mitigate
CHAPTER 15. DAMAGES UPON TERMINATION
[CHAPTER 15. DAMAGES UPON TERMINATION]
15.1 GENERAL CONSIDERATIONS
15.2 DAMAGES UPON SUBSTITUTE TRANSACTIONS
15.2.1 Introduction
15.2.2 Presupposed Situations Calling for Concrete Calculation
15.2.3 Substitute Transaction must be Reasonable Substitute
15.3 DAMAGES UPON CURRENT PRICE
15.3.1 Introduction
15.3.2 Presupposed Situations Calling for Abstract Calculation
15.3.3 Determination of "Current Price"
15.3.3.1 In general
15.3.3.2 Reference point
15.3.3.3 Relevant place
15.4 FURTHER DAMAGES
CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE
[CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE]
CHAPTER 17. RECOVERY OF ATTORNEYS' FEES
[CHAPTER 17. RECOVERY OF ATTORNEYS' FEES]
17.1 GENERAL CONSIDERATIONS
17.1.1 Introduction
17.1.2 Recoverability under "Loser-pays" Principle
17.1.3 Excluded by "American Rule"
17.2 CISG DECISIONS CONCERNING ATTORNEYS' FEES
17.3 PROBLEMATIC RECOVERY UNDER ART. 74 CISG
CHAPTER 18. PAYMENT OF INTEREST
[CHAPTER 18. PAYMENT OF INTEREST]
18.1 INTRODUCTION
18.2 GENERAL ENTITLEMENT TO INTEREST
18.3 ADDITIONAL DAMAGES
18.4 INTEREST ON DAMAGES
18.5 ACCRUAL OF INTEREST
18.6 RATE OF INTEREST
PART V. EXCUSES
CHAPTER 19. CHANGE OF CIRCUMSTANCES
[CHAPTER 19. CHANGE OF CIRCUMSTANCES]
19.1 INTRODUCTION
19.2 UNSDERLYING DOCTRINCE; REBUS SIC STANTIBUS
19.3 DIFFERENT APPROACHES TO CHANGED CIRCUMSTANCES
19.3.1 Historical Review
19.3.2 National Doctrines
19.3.3 International Perspective
19.3.3.1 Public international law
19.3.3.2 International commercial practice
19.3.4 Conclusion
19.4 DEFINITIONS OF force majeure AND HARDSHIP
19.4.1 Force Majeure
19.4.2 Hardship
19.4.3 Comparison
19.5 GENERAL APPROACHES IN THE STUDIED INSTRUMENTS
19.5.1 Approach under the CISG
19.5.2 Approach under the UNIDROIT Principles
19.5.3 Approach under the PECL
19.5.4 Concluding Remarks
CHAPTER 20. force majeure
[CHAPTER 20. force majeure]
20.1 INTRODUCTION
20.2 RELEVANT TEXTS
20.2.1 Exemptions: CISG Art. 79
20.2.2 Force Majeure: UNIDROIT Principles Art. 6.1.7
20.2.3 Excuse Due to an Impediment: PECL Art. 8:108
20.2.4 Comparison
20.3 GENERAL RULE
20.3.1 Scope of Excusable Non-performance
20.3.2 Existence of Qualifying Impediment
20.3.2.1 Introduction of a new word
20.3.2.2 Interpretation of the word
20.3.2.3 Problematic situations
20.3.3 Conditions for Exempting Impediment
20.3.3.1 Beyond control
20.3.3.2 Unforeseeable
20.3.3.3 Unavoidable or insurmountable
20.3.3.4 Causation
20.4 RESPONSIBILITY FOR THIRD PARTIES
20.5 TEMPORARY IMPEDIMENT
20.6 DUTY TO NOTIFY
20.7 EFFECTS
20.7.1 In General
20.7.2 Effect on Right to Damages
20.7.3 Effect on Right to Performance
20.7.4 Effect on Right to Termination
CHAPTER 21. HARDSHIP
[CHAPTER 21. HARDSHIP]
21.1 GAP IN THE CISG?
21.2 INTERPLAY BETWEEN CISG EXCUSE AND UNIDROIT PRINCIPLES / PECL HARDSHIP
21.2.1 Hardship: UNIDROIT Principles Arts. 6.2.1 through 6.2.3
21.2.2 Change of Circumstances: PECL Art. 6:111
21.2.3 Gap-filling Application of Hardship Provisions?
21.3 CONDITIONS FOR INVOKING HARDSHIP
21.3.1 In General
21.3.2 Crucial Point: Fundamental Alteration of Equilibrium
21.3.3 Additional Requirements for Hardship to Arise
21.3.3.1 Time factor: occurrence after conclusion
21.3.3.2 Unforeseeability
21.3.3.3 Risk not assumed
21.4 EFFECTS OF HARDSHIP
21.4.1 In General
21.4.2 Triggering of Renegotiation
21.4.2.1 Request for renegotiation
21.4.2.2 Renegotiation in good faith
21.4.3 Court Measures in case of Hardship
21.4.4 Concluding Remarks
CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES
[CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES]
22.1 GENERAL CONSIDERATIONS
22.2 FORCE MAJEURE CLAUSE
22.2.1 Introduction
22.2.2 Drafting Considerations
22.3 HARDSHIP CLAUSE
22.3.1 Introduction
22.3.2 Drafting Considerations
22.4 OVERLAPPING OF THE CLAUSES
22.5 USE OF STANDARD FORMS: ICC No. 421 (partial)
Endnotes
Endnotes
Metadata
SiSU Metadata, document information
Manifest
SiSU Manifest, alternative outputs etc.
Remedies for Non-performance - Perspectives from CISG, UNIDROIT Principles and PECL,
PART III. TERMINATION
CHAPTER 12. EFFECTS OF TERMINATION
12.4.1 Continuing Right to Claim Damages
12.4.2 Unaffected Clauses Intended to Apply despite Termination
Apart from the termination, which releases both parties from their duty to effect and to receive performance, claims for damages can be asserted by the aggrieved party under corresponding rules of each of the three instruments or based on contractual provisions. This refers in particular to claims for damages which have arisen in connection with the obligations from which he is now released. Damages, for instance, have to be paid because of delay, even if the contract is later avoided because of that delay and even if damages arise because of avoidance. 635
According to CISG Art. 81(1), the fact that a party has resorted to the avoidance remedy does not deprive him of his right to claim damages that may be due under the Convention (pursuant to Arts. 74, 75, and 76) or the contract. Indeed, CISG Arts. 45 and 61 have already made it clear that claims for damages can be asserted apart from other legal consequences of breaches of contract, thus also apart from avoidance. The term "damages which may be due" is in this context conceived as a bit tight, for the same should apply to obligations to pay penalties under the contract in their different manifestations. 636
Similarly, under Art. 7.3.5(2) of the UNIDROIT Principles, the fact that, by virtue of termination, the contract is brought to an end, does not deprive the aggrieved party of its right to claim damages for non-performance in accordance with the rules laid down in section 4 of Chapter 7 (Arts. 7.4.1 et seq.). The PECL provisions that are relevant to this point are to be found in Art. 8:102, entitled Cumulation of Remedies, which clearly states that a party is not deprived of its right to damages by exercising its right to any other remedy. Thus, a party which pursues a remedy other than damages is not precluded from claiming damages. A party which terminates the contract may, therefore, also claim damages. 637
Thus, the primary effect of termination (supra. 12.2) may be more correctly stated as: "To the extent that the right to claim damages remains unaffected, the effects of contract avoidance are that the parties are deemed to have performed their respective obligations and no further performance remains to be tendered." 638
Although avoidance of the contract relieves the parties from their contractual obligations, this does not mean that every clause of the avoided contract ceases to be effective or that all the rights and obligations provided for in the contract automatically come to an end. 639 Generally speaking, dispute resolution clauses always remain binding after the contract ceases to exist by way of avoidance or automatic termination. 640 All systems now accept that termination will not affect the application of clauses such as arbitration clauses which were intended to apply despite termination. 641
Hereby a widely recognized rule is repeated under each of the three instruments. Under CISG Art. 81(1), if the contract itself provides that a party may exercise various rights and that the other party must fulfill certain obligations after the contract is avoided, these provisions, despite the contract having been avoided, will remain effective until those rights and obligations are fully realized. These contractual rights and the corresponding obligations to honor these rights do not cease to exist simply because the contract is avoided. These clauses, unlike those that are performance-related, are not avoidable unless the contract itself or a subsequent agreement between the parties indicates otherwise. 642 Under either of the two sets of Principles, a similar rule is set out in UPICC Art. 7.3.5(3) and PECL Art. 9:305(2), respectively. Thus, notwithstanding the general rule laid down in UPICC Art. 7.3.5(1)/PECL Art. 9:305(1), there may be provisions in the contract which survive its termination. This is the case in particular with provisions relating to dispute settlement but there may be others which by their very nature are intended to operate even after termination. 643
The purpose of these provisions is to prevent complete termination of the contract, 644 including those provisions concerning not only those rights and obligations which are ancillary to an avoidance of the contract, like a respective penalty, but such which are to help solve a conflict between the parties and which, of course, are of special importance when that conflict aggravates so that the contract is terminated early, such as arbitration and renegotiation clauses and forum selection clauses, all of which will help the party relying on the avoidance take recourse to remedies provided by the instruments and the applicable law. 645 It is to be noted that the Secretariat Commentary declares non-exhaustive the two named conditions (sentence 2, CISG Art. 81(1)) which continue in existence. 646 This is not convincing because the second condition (any other provision of the contract governing...) actually is a description of general features. The surviving conditions can be multifaceted. They relate to general questions of cooperation between the parties, like agreement of general business terms whose individual elements again have to be examined according to that criterion, agreements on the form of declarations, a general obligation to cooperate, obligations to maintain secrecy, a reservation of title up to restitution, limitation of claims, and the applicable law. Another group of conditions refers to the modalities of performance, i.e. commercial terms, risk bearing, packaging, procurement of licenses, which can play a role where the return of the goods or of the price is concerned. Of particular practical relevance are those agreements which deal with liability, such as penalties, liquidated damages and damage clauses, including possibilities of exemption and restrictions, the amount of interest, etc. 647
On the other hand, one should note that the rule does not remedy deficiencies which lead to non-validity of an arbitral clause or any other provision intended to apply despite termination under national law, including that based on other conventions. 648 None of these rules say that these provisions are valid; it merely provides the rule according to which avoidance of the contract "does not effect" such provisions. 649 This is confirmed by the Secretariat Commentary: "It should be noted that article 66(1) [draft counterpart of CISG article 81(1)] would not make valid an arbitration clause, a penalty clause, or other provision in respect of the settlement of disputes if such a clause was not otherwise valid under the applicable national law. Article 66(1) [draft counterpart of CISG article 81(1)] states only that such a provision is not terminated by the avoidance of the contract." 650
635. Supra. note 7.
636. Ibid.
637. See Comment and Notes to the PECL: Art. 8:102. Comment A. Available online at ‹http://www.cisg.law.pace.edu/cisg/text/peclcomp45.html›
638. See Jianming Shen in "Declaring the Contract Avoided: The U.N. Sales Convention in the Chinese Context": New York International Law Review, Vol. 10, No. 1, New York State Bar Association (1997); p. 33. Available online at ‹http://www.cisg.law.pace.edu/cisg/biblio/shen.html›
639. See John O. Honnold in " On the Road to Unification of the Law of Sales": Forum International, No. 2, June 1983, 8.
640. Supra. note 25, p. 34.
641. E.g. COMMON LAW: Heyman v. Darwins [1942] A.C. 356, H.L.; FINLAND: Aurejärvi 106; FRANCE: clause compromissoire (NCPC art. 1466) and penalty clause (Malaurie and Aynès, Obligations no. 543); GERMANY, see Stein-Jonas (- Schlosser) 1025 No. 00; GREEK law, see Kerameus 171-173, with further refs, and Papanicolaou in Georgiadis and Stathopoulos II art. 389 no. 14 (1979); ITALIAN law: no specific text but see Satta 852; Cass. 5 Aug.1968 n. 2803, in Foro It., 1969, I c.445 and Cass. 27 May 1981 n.3474, in Foro It., 1982, I c.199; NETHERLANDS BW art. 6:271; PORTUGUESE CC art. 434(1); SPANISH Arbitration Act 1988 (see Bercovitz, Arbitraje, art. 1, 17 ff and Unidroit art. 7.3.5(3). (Supra. note 12, Note 3.)
642. Supra. note 25, p. 35.
643. Comment 3 on Art. 7.3.5 UPICC.
644. Supra. note 9.
645. Supra. notes 6, 9.
646. It is stated with this regard: "The enumeration in paragraph (1) of two particular obligations arising out of the existence of the contract which are not terminated by the avoidance of the contract is not exhaustive. Some continuing obligations are set forth in other provisions of this Convention. For example, article 75(1) [draft counterpart of CISG article 86(1)] provides that 'if the goods have been received by the buyer, and if he intends to reject them, he must take such steps as are reasonable in the circumstances to preserve them' ['If the buyer has received the goods and intends to reject them, he must take such steps to preserve them as are reasonable in the circumstances'] and article 66(2) [draft counterpart of CISG article 81(2)] permits either party to require of the other party the return of whatever he has supplied or paid under the contract. Other continuing obligations may be found in the contract itself or may arise out of the necessities of justice." (Supra. note 4, Comment 6.)
647. Supra. note 7, pp. 342-343.
648. Supra. note 7.
649. Supra. note 9.
650. Supra. note 4, Comment 5.
