Article 28

If, in accordance with the provisions of this Convention, one party is entitled to require
performance of any obligation by the other party, a court is not bound to enter a
judgement for specific performance unless the court would do so under its own law in
respect of similar contracts of sale not governed by this Convention.

Bibliography:

Bejesky, The Evolution in and International Convergence of the Doctrine of Specific Performance in Three Types
of States, 13 Indiana International and Comparative Law Review (2003) 353; Boghossian, A Comparative Study
of Specific Performance Provisions in the United Nations Convention on Contracts for the International Sale of
Goods, Review of the Convention on Contracts for the International Sale of Goods (CISG) (1999–2000) 3;
Dawson, Specific Performance in France and Germany, 57 Michigan Law Review (1959) 495; Flechtner, Buyers’
Remedies in General and Buyers’ Performance-Oriented Remedies, 25 Journal of Law and Commerce (2005–06)
339; Kastely, The Right to Require Performance in International Sales: Towards an International Interpretation
of the Vienna Convention, 64 Washington Law Review (1988) 607; Kastely, Unification and Community: A
Rhetorical Analysis of the United Nations Sales Convention, 8 Northwestern Journal of International Law and
Business (1988) 574; Lookofsky, The 1980 United Nations Convention on Contracts for the International Sale of
Goods, Art. 28, Specific Performance, in: Herbots/Blanpain (eds), International Encyclopaedia of Laws –
Contracts, Supplement 29 (2000), p. 81; Whittington, Reconsidering Domestic Sale of Goods Remedies in Light
of the CISG, 37 Victoria University Wellington Law Review (2006) 421.
 I. Importance and Role of the Provision (Rn. 1, 2)
 II. Detailed Commentary (Rn. 3-25)
o 1. Specific performance under municipal law (Rn. 4-12)
 a) Civil law (Rn. 5-7)
 b) Common law (Rn. 8-12)
o 2. The provisions of the Convention (Rn. 13-21)
 a) The court’s “own law” (Rn. 15, 16)
 b) Court versus tribunal (Rn. 17, 18)
 c) The court “is not bound” to enter (or to refuse) a judgement for specific
performance (Rn. 19, 20)
 d) “Similar contracts of sale” (Rn. 21)
o 3. Derogation from Art. 28 and party autonomy (Rn. 22, 23)
o 4. Seller’s right to require payment of the price (Rn. 24, 25)
 III. Comparable Rules (Rn. 26)

I. Importance and Role of the Provision

Randnummer 1 Art. 28 is a compromise position between the common law’s preference for money
damages in the event of a breach of contract and the civil law’s preference for performance.
Art. 62(1) expressly recognizes the seller’s right to claim performance from the buyer, while
Art. 46(1) specifies that the buyer has the right to claim performance from the seller. In this respect,
the Convention reflects the civil law’s preference for performance over damages. Yet both of those
articles are subject to Art. 28, which says a court need not order specific performance of a contract
unless such a remedy would be available under its own law. This compromise was necessary as the
Convention is enforced by decentralized national courts whose willingness to use their coercive
powers in a given situation will vary. zur Fussnote 1 The same issue was resolved in a very similar
fashion in Art. 16 ULIS, which provided that a domestic court would not be bound “to enter or enforce
a judgment for specific performance except in cases in which it would do so under its law in respect
of similar contracts of sale not governed by the Uniform Law.”
Randnummer 2 Art. 28 has generated a good bit of scholarly attention but has been the topic of
very little practical controversy. zur Fussnote 2 Only one case has addressed it in detail. zur Fussnote
3 Fears that it would give rise to forum shopping by disgruntled parties zur Fussnote 4 appear to
have been unfounded. There are several possible explanations for this. First, in numerous cases the
courts to which parties have made application have ordered performance in a manner that has not
sparked commentary. zur Fussnote 5 Those circumstances in which parties would prefer the remedy
of performance might well be those occasions on which even common law courts would grant such
a remedy. zur Fussnote 6 Second, Art. 28 is only implicated if performance is available under the
Convention. zur Fussnote 7 The limiting provisions in the Convention mean that specific performance
is not available in every situation. zur Fussnote 8 Third, parties to a contract themselves very often
prefer damages, so they do not necessarily demand performance even if it would be available to
them. zur Fussnote 9

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Fussnote 1

Torsello, Remedies for Breach of Contract Under the 1980 Convention on Contracts for the
International Sale of Goods (CISG), in: Ferrari (ed), Quo Vadis CISG: Celebrating the 25 th
Anniversary of the United Nations Convention on Contracts for the International Sale of
Goods (2005), pp. 45 seq. zurück zum Text

Fussnote 2

Magnus, in: Ferrari/Flechtner/Brand, Draft Digest and Beyond (2003), p. 326. zurück zum
Text

Fussnote 3

US District Court, Northern District of Illinois (U.S.) 7 December 1999 (Steel bars),
Magellan International Corp. v Salzgitter Handel GmbH, CISG-Online 439 (Pace). A few
cases have concluded it was not relevant to the case at hand. Handelsgericht Bern
(Switzerland) 22 December 2004 (Watches), CISG-Online 1192 (Pace); Cámara Nacional
de Apelaciones en lo Comercial de Buenos Aires (Argentina) 21 July 2002 (Barley),
Cervecería y Malteria Paysandú S. A. v Cervecería Argentina S. A., CISG-Online 803
(Pace); Arbitral Tribunal, ZHK 273/95, 31 May 1996 (Aluminium), Soinco v NKAP, CISG-
Online 1291 (Pace). zurück zum Text

Fussnote 4

See, e.g., Kastely, Unification and Community: A Rhetorical Analysis of the United Nations
Sales Convention, 8 Northwestern Journal of International Law and Business (1988) 574
 (615); Ferrari, in: Flechtner/Brand/Walter, Drafting Contracts (2007), p. 138. zurück zum
Text

Fussnote 5

See e.g., Zeller, CISG and the Unification of International Trade Law (2006) pp. 60
seq. zurück zum Text

Fussnote 6

Flechtner, Buyers’ Remedies in General and Buyers’ Performance-Oriented Remedies, 25

Journal of Law and Commerce (2005–06) 339 (344) (Pace); Boghossian, A Comparative
Study of Specific Performance Provisions in the United Nations Convention on Contracts for
the International Sale of Goods, Review of the Convention on Contracts for the
International Sale of Goods (CISG) (1999–2000) 3 (28) (Pace); Müller-Chen, in:
Schlechtriem/Schwenzer, Commentary (2016), Art. 28 para. 4. zurück zum Text

Fussnote 7

Reiley, International Sales Contracts (2008) p. 229. zurück zum Text

Fussnote 8

Zeller, CISG and the Unification of International Trade Law (2006) p. 63; Gabriel,
Contracts for the Sale of Goods: A Comparison of US and International Law (2009) pp. 118
seq.; Honnold, Uniform Law (2009), Art. 28 paras 192 seq.; Boghossian, A Comparative
Study of Specific Performance Provisions in the United Nations Convention on Contracts for
the International Sale of Goods, Review of the Convention on Contracts for the
International Sale of Goods (CISG) (1999–2000) 3 (19 seq.) (Pace); Lookofsky,
Understanding the CISG (2008), p. 111. zurück zum Text

Fussnote 9

Flechtner, Buyers’ Remedies in General and Buyers’ Performance-Oriented Remedies, 25

Journal of Law and Commerce (2005–06) 339 (342 et seq.) (Pace); Bergsten,
Commentary on Article 28 by Senior Legal Officer, International Trade Law Branch, United
Nations, in: Kritzer (ed), Guide to Practical Applications of the United Nations Convention
on Contracts for the International Sale of Goods (1989), p. 215; Garro, in:
Ferrari/Flechtner/Brand, Draft Digest and Beyond (2003), p. 368; Honnold, Uniform Law
(2009), Art. 28 para. 199. zurück zum Text

II. Detailed Commentary

Randnummer 3 Art. 28’s explicit reversion to the preference of the municipal law of the forum
seems to run counter to the general preference in the CISG to give priority to the international
nature of the convention zur Fussnote 10 and to seek a uniform application and harmonization in
case outcomes. zur Fussnote 11 It also appears to run counter to the CISG’s general approach of
prioritizing claims for performance over money damages. zur Fussnote 12 In practice, however,
differences between the common law and civil law might be more philosophical than practical. zur
Fussnote 13 Most claimants seek money damages. zur Fussnote 14 This tempers the potentially
divisive effect of Art. 28.
 1. Specific performance under municipal law (Rn. 4-12)
o a) Civil law (Rn. 5-7)
 o b) Common law (Rn. 8-12)
 2. The provisions of the Convention (Rn. 13-21)
o a) The court’s “own law” (Rn. 15, 16)
o b) Court versus tribunal (Rn. 17, 18)
o c) The court “is not bound” to enter (or to refuse) a judgement for specific
performance (Rn. 19, 20)
o d) “Similar contracts of sale” (Rn. 21)
 3. Derogation from Art. 28 and party autonomy (Rn. 22, 23)
 4. Seller’s right to require payment of the price (Rn. 24, 25)
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Fussnote 10

Schwenzer/Fountoulakis, International Sales Law (2007), p. 193. zurück zum Text

Fussnote 11

Zeller, CISG and the Unification of International Trade Law (2006) p. 55; Boghossian, A
Comparative Study of Specific Performance Provisions in the United Nations Convention on
Contracts for the International Sale of Goods, Review of the Convention on Contracts for
the International Sale of Goods (CISG) (1999–2000) 3 (28) (Pace). zurück zum Text
Fussnote 12

Huber, in: Huber/Mullis, The CISG (2007), p. 186; Reiley, International Sales Contracts
(2008) p. 224. See the commentary, supra, Art. 46 paras 9 et seq. and Art. 62 paras 4 et
seq. zurück zum Text
Fussnote 13

See, e.g., Kritzer, Guide to Practical Applications of the United Nations Convention on
Contracts for the International Sale of Goods (1989) p. 219 (“despite differences in the
rhetoric of their sales codes, parties from [Western civil law jurisdictions], for economic
reasons, do not resort to [performance] more frequently than parties from common law
jurisdictions.”); Spanogle/Malloy/Del Duca/Rowley/Bjorklund, Global Issues in Contract
Law (2007) p. 85; Honnold, Uniform Law (2009), Art. 28 para. 192. zurück zum Text
Fussnote 14

Klimas, Comparative Contract Law: A Transystemic Approach With an Emphasis on the

Continental Law (2005) p. 276; Felemegas, The right to require specific performance:
comparison between the provisions of the CISG (Arts. 28, 46, and 62) and counterpart
provisions of the UNIDROIT Principles (Arts. 7.2.1–7.2.5), in: Felemegas (ed), An
International Approach to the Interpretation of the United Nations Convention on Contracts
for the International Sale of Goods (1980) as Uniform Sales Law (2007), p. 145 note
8. zurück zum Text

1. Specific performance under municipal law

Randnummer 4 A short overview of the differing approaches of the common law and the civil law
towards contract enforcement is essential to understanding the reasons why the compromise in
Art. 28 was necessary. The concept of performance is much more limited in Anglo-American law; it
refers to an order by a court to an individual directing that he perform a contract. zur Fussnote 15
In civil law systems, it means any process by which an injured party can get what he bargained for,
including having defects cured at the expense of the breaching party. zur Fussnote 16
 a) Civil law (Rn. 5-7)
 b) Common law (Rn. 8-12)
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Fussnote 15

Treitel, Remedies for Breach of Contract (1988) p. 46. zurück zum Text
Fussnote 16

Treitel, Remedies for Breach of Contract (1988) p. 46. A plaintiff’s acting at the expense of
the defendant is possible in English law, but only after an order for specific performance
has been entered by the court. zurück zum Text

a) Civil law
Randnummer 5 It is taken for granted in civil legal systems that an aggrieved party is entitled to
demand performance. This derives from the principle pacta sunt servanda – contracts are to be
honoured. There is a moral underpinning to this position: “the binding nature of the performance is
of the utmost importance to the civil law, and the courts accordingly bind people to their promises.”
zur Fussnote 17 This does not mean that performance is always available. Some categories of
performance are excluded from the ambit of the performance preference: personal obligations are
not enforceable, for example. zur Fussnote 18 Still, there is a baseline assumption that an order for
performance will usually be available if the aggrieved party desires it. zur Fussnote 19
Randnummer 6 Thus, in Germany, specific performance is the preferred remedy and is excluded
only if, for some reason, performance is not possible. zur Fussnote 20 Even though a damages
remedy is sought in a high percentage of cases, the fact that performance is available should
the claimant desire it affects the conduct of the parties and the functioning of the legal system. zur
Fussnote 21 German courts do not assert a discretionary power to refuse an order of performance,
although in certain cases “where performance is impossible, would involve disproportionate cost,
would introduce compulsion into close personal relationships or compel the expression of special
forms of artistic or intellectual creativity” a German court will not order performance. zur Fussnote
22
Randnummer 7 Performance is also the preferred remedy under French law, and in the many legal
systems that follow the French Civil Code. A French court has no discretion to deny a request for
performance if circumstances exist to support the claim. zur Fussnote 23 Performance is not,
however, always available. French law distinguishes between obligations to “give,” which are subject
to an order for performance, and obligations to “do or not do,” which are theoretically subject only
to an award for damages. zur Fussnote 24 The theory behind this distinction is that the personal
liberty of the individual should not be compromised. Yet there are many ways to get round the
distinction so that an aggrieved party can obtain performance. One remedy is for the court to order
an astreinte – a fine payable by the breaching party to the injured party for every day the obligation
is not fulfilled. zur Fussnote 25 In practice in France, “a judgment for [specific performance] will be
given in respect of all obligations except those positive obligations which require personal
performance and those negative obligations the enforcement of which would result in such an
interference with personal liberty as would be offensive to current morality.” zur Fussnote 26
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Fussnote 17

Curran, Comparative Law: An Introduction (2002) pp. 24 seq.; see also Bejesky, The
Evolution in and International Convergence of the Doctrine of Specific Performance in
Three Types of States, 13 Indiana International and Comparative Law Review (2003) 353
(375 et seq.). zurück zum Text
Fussnote 18
 Klimas, Comparative Contract Law: A Transystemic Approach With an Emphasis on the
Continental Law (2005) pp. 276 seq. zurück zum Text
Fussnote 19

Spanogle/Malloy/Del Duca/Rowley/Bjorklund, Global Issues in Contract Law (2007) pp. 85

et seq. zurück zum Text
Fussnote 20

§ 275(1) BGB; see also Schwenzer/Fountoulakis, International Sales Law (2007),

p. 191. zurück zum Text
Fussnote 21

Dawson, Specific Performance in France and Germany, 57 Michigan Law Review (1959)
495 (529 seq.). zurück zum Text
Fussnote 22

Dawson, Specific Performance in France and Germany, 57 Michigan Law Review (1959)
495 (529 seq.). zurück zum Text
Fussnote 23

Klimas, Comparative Contract Law: A Transystemic Approach With an Emphasis on the

Continental Law (2005) p. 275. zurück zum Text
Fussnote 24

French Civil Code Art. 1142. zurück zum Text

Fussnote 25

Treitel, Remedies for Breach of Contract (1988) pp. 60 seq. zurück zum Text
Fussnote 26

Nicholas, The French Law of Contract (1992) pp. 218 seq. zurück zum Text

b) Common law

Randnummer 8 The preference for the award of damages over specific performance in the common
law is to some degree the result of historical accident. Common law courts in England had only
limited authority. People would resort to courts of equity, which were controlled directly by the King
through his Chancellor, when the powers of the common law courts did not extend to granting
effective relief. These became known as chancery or equity courts. In the area of remedies, common
law courts could only order the payment of money damages. Equity courts, on the contrary, had the
authority to issue in personam decrees – effectively, to order specific performance. zur Fussnote 27
Thus, specific performance became available when the remedy at common law was inadequate and
the equities dictated that the chancery court use its discretion to grant relief. zur Fussnote 28
Eventually the functions of the two courts were merged, but those remained the criteria governing
the availability of specific performance. This historical accident was reinforced by a philosophy
placing great faith in a market economy in which substitute transactions were readily available. The
U.S. Restatement provides: “Specific performance or an injunction will not be ordered if damages
would be adequate to protect the expectation interest of the injured party.” zur Fussnote 29 If the
payment of monetary damages could put the injured party in the position he would have occupied
absent the breach, for example by reimbursing him for any additional expenses incurred as a result
of entering into a substitute transaction, then specific performance would not be available.
Randnummer 9 In England, under the Sale of Goods Act, specific performance is possible when
circumstances permit: “In any action for breach of contract to deliver specific or ascertained goods
the court may, if it thinks fit, on the plaintiff’s application, by its judgement or decree direct that the
contract shall be performed specifically, without giving the defendant the option of retaining the
goods on payment of damages.” zur Fussnote 30 In the United States, the UCC is similar: “Specific
performance may be decreed where the goods are unique or in other proper circumstances.” zur
Fussnote 31 “Unique” is usually used to describe goods without any possible substitute because of
their rarity or idiosyncratic value, such as family heirlooms. zur Fussnote 32

Randnummer 10 In determining whether or not to order performance, the first question a common
law court will ask is whether damages at law are adequate. zur Fussnote 33 A significant factor in
assessing the answer is whether cover – purchasing the goods from an alternate supplier – is readily
available. If it is, specific performance will almost never be an option. zur Fussnote 34 If cover is
not an option, the possibility of obtaining specific performance is much greater. Other factors will
also influence the court’s decision. In the case of a long-term requirements contract, a substitute
transaction might be difficult to arrange. Yet the length of time and difficulty a court will have in
supervising the performance might lead it to decline to order performance. A court will also not order
performance that interferes with the personal freedom of the defendant, a situation not often at
issue with the sale of goods in commercial quantities. zur Fussnote 35 If, however, the performance
requested is to repair defective goods, the defendant’s freedom of action might in fact be at issue.
Because the matter is within the court’s discretion, it can be difficult to predict the outcome. zur
Fussnote 36

Randnummer 11 At common law, the availability of specific performance is not subject to the
dictates of party autonomy. Contracting parties can agree in their contract that specific performance
would be an appropriate remedy should their relationship go awry, but the court need not give effect
to that preference in the United States. Proposed revisions to the UCC would have placed greater
emphasis on the parties’ agreement: “[I]n a contract other than a consumer contract, specific
performance may be decreed if the parties have agreed to that remedy.” zur Fussnote 37 Even under
this revised formulation, however, the court would not be obligated to order performance.

Randnummer 12 This is a marked contrast to the CISG, in which the parties have the ability to
select which remedies they prefer in the event of partial or fundamental breach. A party may
foreclose its ability to seek specific performance by pursuing inconsistent remedies, but that choice
is within its power. zur Fussnote 38

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Fussnote 27

Reiley, International Sales Contracts (2008) p. 220. zurück zum Text

 Fussnote 28

Reiley, International Sales Contracts (2008) p. 220. zurück zum Text

Fussnote 29

Restatement (Second) of the Law of Contracts (1981), § 359(1). zurück zum Text

Fussnote 30

Sale of Goods Act 1979, sec. 52. zurück zum Text

Fussnote 31

UCC § 2–716(1). zurück zum Text

Fussnote 32

Reiley, International Sales Contracts (2008) pp. 222 et seq. zurück zum Text

Fussnote 33

Treitel, Remedies for Breach of Contract (1988) p. 64. zurück zum Text

Fussnote 34

The exception will be if the goods have some idiosyncratic value such that replacement
goods, even if functionally equivalent, will not suffice to put the claimant in the position he
would have occupied absent the breach. This situation rarely arises when one is talking
about commercial goods. zurück zum Text

Fussnote 35

Boghossian, A Comparative Study of Specific Performance Provisions in the United Nations

Convention on Contracts for the International Sale of Goods, Review of the Convention on
Contracts for the International Sale of Goods (CISG) (1999–2000) 3 (39) (Pace). zurück
zum Text

Fussnote 36

Boghossian, A Comparative Study of Specific Performance Provisions in the United Nations

Convention on Contracts for the International Sale of Goods, Review of the Convention on
Contracts for the International Sale of Goods (CISG) (1999–2000) 3 (39 seq.) (Pace); cf.
Treitel, Remedies for Breach of Contract (1988) p. 66 (suggesting discretion is not
unfettered, but noting the significant number of factors and exceptions that make the
remedy discretionary). zurück zum Text

Fussnote 37

UCC Amended Version (2003), § 2–716(1). The proposed revisions have been
withdrawn. zurück zum Text

Fussnote 38

Reiley, International Sales Contracts (2008) p. 225. zurück zum Text

2. The provisions of the Convention

 Randnummer 13 Like the other general provisions, Art. 28 can only be read in conjunction with
other substantive CISG articles. To the extent that it applies, it restricts the ability of the parties to
demand performance. It might, therefore, restrict the right of the buyer to demand delivery of the
goods or documents under Art. 30, to demand repair or replacement of defective goods under Art. 46,
or to demand other performance-related obligations. zur Fussnote 39
Randnummer 14 Even though the Convention gives a preference to performance, whether in the
original manner contracted for by the parties or in altered form to take into account intervening
events, zur Fussnote 40 the right of a disputing party to demand performance under the CISG is
not unlimited. zur Fussnote 41 The rules in Arts 46(1) and 62(1) do not apply if the party has
engaged in conduct inconsistent with the remedy of performance. zur Fussnote 42 If third-party
rights are at stake, for example in a bankruptcy proceeding filed by the buyer or the seller, specific
performance might not be available. zur Fussnote 43 Finally, the ability to demand performance is
limited by the principle of good faith. zur Fussnote 44 Art. 46(2) requires that there be a fundamental
breach before a buyer is entitled to request substitute goods. Art. 46(3) permits a buyer to request
repair “provided it is not unreasonable.”
 a) The court’s “own law” (Rn. 15, 16)
 b) Court versus tribunal (Rn. 17, 18)
 c) The court “is not bound” to enter (or to refuse) a judgement for specific performance (Rn. 19,
20)
 d) “Similar contracts of sale” (Rn. 21)
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Fussnote 39

Gabriel, Contracts for the Sale of Goods: A Comparison of US and International Law
(2009) p. 118. zurück zum Text
Fussnote 40

Torsello, Remedies for Breach of Contract Under the 1980 Convention on Contracts for the
International Sale of Goods (CISG), in: Ferrari (ed), Quo Vadis CISG: Celebrating the 25 th
Anniversary of the United Nations Convention on Contracts for the International Sale of
Goods (2005), p. 70 (suggesting that the remedial scheme is designed to limit the
collateral costs incurred in remedying the breach by setting forth varied solutions suitable
in different contexts). zurück zum Text
Fussnote 41

Zeller, CISG and the Unification of International Trade Law (2006) p. 58. zurück zum
Text
Fussnote 42

Felemegas, The right to require specific performance: comparison between the provisions
of the CISG (Arts 28, 46, and 62) and counterpart provisions of the UNIDROIT Principles
(Arts. 7.2.1–7.2.5), in: Felemegas (ed), An International Approach to the Interpretation of
the United Nations Convention on Contracts for the International Sale of Goods (1980) as
Uniform Sales Law (2007), p. 151. zurück zum Text
Fussnote 43

Gabriel, Contracts for the Sale of Goods: A Comparison of US and International Law
(2009) p. 120. zurück zum Text
Fussnote 44

Zeller, CISG and the Unification of International Trade Law (2006) pp. 58 seq.;
Boghossian, A Comparative Study of Specific Performance Provisions in the United Nations
Convention on Contracts for the International Sale of Goods, Review of the Convention on
 Contracts for the International Sale of Goods (CISG) (1999–2000) 3 (68 seq.) (Pace);
Honnold, Uniform Law (2009), Art. 28 para. 199. zurück zum Text

a) The court’s “own law”

Randnummer 15 Art. 28 provides that a court is not bound to order specific performance unless it
would do so under its “own law.” This phrase is designed to take into account the variable nature of
performance available even among courts that share a tradition, whether within the common law or
civil law. In other words, the availability of specific performance varies as between England and
Scotland, and even as between France and Germany. zur Fussnote 45 It would have been too vague
to refer to performance under “the civil law” or even under the “Anglo-American” common law. zur
Fussnote 46
Randnummer 16 A second question is the breadth of the phrase “own law” – does it refer to the
“whole law” of the forum, which would encompass its private international law (conflict of laws)
rules, or does it refer only to the forum’s substantive remedies law? The most straightforward, and
most convincing, interpretation of this phrase is that it refers to the forum’s municipal law on
remedies. The forum’s private international law rules might point to the laws of a different
jurisdiction, which would require the court to assess whether or not specific performance would be
available under that state’s law. Because the purpose of the article is to permit a court not to order
specific performance when doing so would be against its own rules, the latter interpretation is
preferred. zur Fussnote 47 This was the approach adopted by the only court decision to have
addressed Art. 28. zur Fussnote 48 In Magellan v Salzgitter, a U.S. buyer of steel sought specific
performance of specially manufactured steel because it alleged it was unable to engage in a
substitute transaction. The U.S. District Court construed Art. 28 as directing it to look to the UCC to
determine whether such relief would be available. zur Fussnote 49 Since inability to cover is one of
the “appropriate circumstances” in which a buyer can seek specific relief, the court allowed the case,
which was at a preliminary stage, to go forward.
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Fussnote 45

Zeller, CISG and the Unification of International Trade Law (2006) p. 56. zurück zum
Text
Fussnote 46

Zeller, CISG and the Unification of International Trade Law (2006) p. 56. zurück zum
Text
Fussnote 47

Reiley, International Sales Contracts (2008) p. 227; Ferrari, in: Flechtner/Brand/Walter,

Drafting Contracts (2007), pp. 137 seq.; Torsello, Remedies for Breach of Contract Under
the 1980 Convention on Contracts for the International Sale of Goods (CISG), in: Ferrari
(ed), Quo Vadis CISG: Celebrating the 25th Anniversary of the United Nations Convention
on Contracts for the International Sale of Goods (2005), pp. 68 seq.; Garro, in:
Ferrari/Flechtner/Brand, Draft Digest and Beyond (2003), p. 369; Honnold, Uniform Law
(2009), Art. 28 para. 195; Huber, in: Huber/Mullis, The CISG (2007), pp. 187 seq.; Müller-
Chen, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 28 para. 9. zurück zum
Text
Fussnote 48

US District Court, Northern District of Illinois (U.S.) 7 December 1999 (Steel bars),
Magellan International Corp. v Salzgitter Handel GmbH, CISG Online 439 (Pace). zurück
zum Text
Fussnote 49
 US District Court, Northern District of Illinois (USA) 7 December 1999 (Steel bars),
Magellan International Corp. v Salzgitter Handel GmbH, CISG-Online 439 (Pace). zurück
zum Text

b) Court versus tribunal

Randnummer 17 Art. 28 refers to “court,” although many international disputes are resolved by
arbitral tribunals. Thus, the question arises what, if any, effect Art. 28 has on disputes heard by
arbitral tribunals. The most reasonable approach is to apply Art. 28 equally to arbitral tribunals and
to courts. zur Fussnote 50 This is also consistent with the usage in the Secretariat’s commentary to
the predecessor to Art. 46: “Although the buyer has a right to the assistance of a court or arbitral
tribunal to enforce the seller’s obligation to perform the contract, [Art. 28 CISG] limits that right to a
certain degree.” zur Fussnote 51
Randnummer 18 This solution gives rise to further questions. Art. 28 refers to the “own law” of the
court. In the case of an arbitral tribunal, its “own law” would be the agreement between the parties,
the applicable arbitral rules, the CISG, and the law of the place of arbitration (lex arbitri). The ability
of arbitral tribunals to order specific performance will depend on the lex arbitri and the precise nature
of the relief sought. zur Fussnote 52 The question of the appropriateness of the remedy is likely to
arise again if the party ordered to perform balks, and the prevailing party must go to a court to
enforce the award. In states party to the New York Convention on the Recognition and Enforcement
of Foreign Arbitral Awards enforcement should not, by the terms of the Convention, be precluded
because the arbitral tribunal awarded specific performance. zur Fussnote 53 One can imagine
common law courts proving reluctant to enforce such orders. In practice this is not likely to be a
significant issue, as the dominant type of relief sought is the payment of monetary damages. zur
Fussnote 54
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Fussnote 50

Müller-Chen, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 28 para. 8; Lookofsky,

Understanding the CISG (2008), pp. 112, 146; Felemegas, The right to require specific
performance: comparison between the provisions of the CISG (Arts 28, 46, and 62) and
counterpart provisions of the UNIDROIT Principles (Arts. 7.2.1–7.2.5), in: Felemegas (ed),
An International Approach to the Interpretation of the United Nations Convention on
Contracts for the International Sale of Goods (1980) as Uniform Sales Law (2007), p. 149
(suggesting that Art. 1.10 PICC, which defines court to include an arbitral tribunal, be used
to support this conclusion). zurück zum Text
Fussnote 51

Secretariat Commentary on 1978 Draft, Art. 42 (now Art. 46) para. 9. zurück zum Text
Fussnote 52

Gabriel, in: Flechtner/Brand/Walter, Drafting Contracts (2007), p. 530. The enforceability

of the award, if made in a New York Convention state, will depend on the “rules of
procedure of the territory where the award is relied upon, under the conditions laid down
in the following articles.” Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, 10 June 1058, 330 UNTS 38. zurück zum Text
Fussnote 53

Gillette/Walt, The UN Convention on Contracts for the International Sale of Goods (2016)
376 seq. zurück zum Text
Fussnote 54

Gabriel, in: Flechtner/Brand/Walter, Drafting Contracts (2007), p. 531. zurück zum

Text
c) The court “is not bound” to enter (or to refuse) a judgement for specific
performance
Randnummer 19 A change to the words during the negotiation of Art. 28 has given rise to
uncertainty as to the degree of discretion afforded municipal courts by the Convention. The initial
draft read that a court need not order specific performance unless it “could” do so, whereas the final
version reads “would” do so. zur Fussnote 55 The fear expressed by the delegates to the Vienna
conference was that if a court could grant specific performance it would have to grant it in an action
governed by the CISG. zur Fussnote 56 The word “would” seems to give a court more leeway to
decline to order specific performance; indeed, it could be read to limit its ability to order performance
unless it actually would do so under its own law. zur Fussnote 57 The usual and better interpretation
of the language, however, is that the court’s discretion is limited only in that it cannot deny an order
of performance if that is the order it would give under its own laws. zur Fussnote 58 This is not to
say that a common law court should give the same remedy a civil law court would give, as some
have suggested. zur Fussnote 59 Rather, if the remedy is a possibility under the forum’s own law,
the forum has the discretion to order it, and should take into account the circumstances of the case,
including its international aspects, in reaching its decision. zur Fussnote 60
Randnummer 20 The ability of a court to enforce an order for performance will depend on its
procedural laws. Placing the matter within the discretion of the forum allows the court to consider
the circumstances of the case and its ability to effectuate an order of performance. zur Fussnote 61
This does not mean that the court should import the forum’s entire substantive law on specific
performance. This would negate the provisions of the CISG, which are paramount. zur Fussnote 62
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Fussnote 55

Reiley, International Sales Contracts (2008) p. 226. The initial “could do so” language was
directed towards courts in legal systems that did not have the procedural mechanisms to
order specific performance. zurück zum Text
Fussnote 56

Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts for
the International Sale of Goods (1989) p. 213; Kastely, The Right to Require Performance
in International Sales: Towards an International Interpretation of the Vienna Convention,
64 Washington Law Review (1988) p. 607 (626) (Pace). zurück zum Text
Fussnote 57

Torsello, Remedies for Breach of Contract Under the 1980 Convention on Contracts for the
International Sale of Goods (CISG), in: Ferrari (ed), Quo Vadis CISG: Celebrating the 25th
Anniversary of the United Nations Convention on Contracts for the International Sale of
Goods (2005), p. 68; Garro, in: Ferrari/Flechtner/Brand, Draft Digest and Beyond (2003),
pp. 368 seq. zurück zum Text
Fussnote 58

Reiley, International Sales Contracts (2008) p. 229; Ferrari, in: Flechtner/Brand/Walter,

Drafting Contracts (2007), p. 136 seq. zurück zum Text
Fussnote 59

Garro, in: Ferrari/Flechtner/Brand, Draft Digest and Beyond (2003), pp. 368 seq; Kastely,
The Right to Require Performance in International Sales: Towards an International
Interpretation of the Vienna Convention, 64 Washington Law Review (1988) p. 607
(pp. 637 seq.) (Pace). zurück zum Text
Fussnote 60

Honnold, Uniform Law (2009), Art. 28 para. 195; Huber, in: Huber/Mullis, The CISG
(2007), p. 190; Müller-Chen, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 28
para. 22. zurück zum Text
 Fussnote 61

Zeller, CISG and the Unification of International Trade Law (2006) p. 59; Boghossian, A
Comparative Study of Specific Performance Provisions in the United Nations Convention on
Contracts for the International Sale of Goods, Review of the Convention on Contracts for
the International Sale of Goods (CISG) (1999–2000) 3 (27 seq.) (Pace); Müller-Chen, in:
Schlechtriem/Schwenzer, Commentary (2016), Art. 28 para. 10. zurück zum Text
Fussnote 62

Huber, in: Huber/Mullis, The CISG (2007), pp. 188 seq.; Müller-Chen, in:
Schlechtriem/Schwenzer, Commentary (2016), Art. 28 paras 9 et seq. zurück zum Text

d) “Similar contracts of sale”

Randnummer 21 There is a comparative aspect to Art. 28 – a court need not order specific
performance unless it would do so with respect to “similar contracts of sale” under its own law. One
problem is that domestic sales contracts will often differ from international sales contracts in
significant respects, such as the distance the shipment must travel and the uncertainties faced in
the journey. zur Fussnote 63 Assumptions about the ready availability of substitute performance
might also be inapt. The possibility of cover is often taken for granted in a market economy, but
might be less available in developing countries or non-market economies, for example. zur Fussnote
64 Burdensome government regulations might make arranging an alternate performance more
difficult. zur Fussnote 65 Thus, in the context of an international sale, specific performance might
be more appropriate than it would be in the domestic context. It is reasonable to suggest that courts
take into account the international features, and the peculiarities attendant on the individual contract
of sale, in assessing whether specific performance would be an appropriate remedy.
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Fussnote 63

Reiley, International Sales Contracts (2008) p. 227. zurück zum Text

Fussnote 64

Boghossian, A Comparative Study of Specific Performance Provisions in the United Nations

Convention on Contracts for the International Sale of Goods, Review of the Convention on
Contracts for the International Sale of Goods (CISG) (1999–2000) 3 (21 et seq.)
(Pace). zurück zum Text
Fussnote 65

Boghossian, A Comparative Study of Specific Performance Provisions in the United Nations

Convention on Contracts for the International Sale of Goods, Review of the Convention on
Contracts for the International Sale of Goods (CISG) (1999–2000) 3 (65) (Pace). zurück
zum Text

3. Derogation from Art. 28 and party autonomy

Randnummer 22 Art. 6 authorizes the parties to “derogate from or vary the effect of the
Convention” without any limitation except for that found in Art. 12. Yet it is generally agreed that
parties cannot exclude Art. 28’s application to their contract. zur Fussnote 66 In common law courts,
whether or not to grant specific relief is a remedy within the discretion of the court, not within the
discretion of the parties. zur Fussnote 67 Permitting the parties to derogate from Art. 28 would
undercut the force of the exception provided therein. Thus, the availability of performance, and the
effectiveness of the parties’ inclusion in their contract of preference for performance in the event of
a breach, will depend on the law of the forum hearing any dispute. zur Fussnote 68 In practice,
parties can control the degree to which performance is readily available in the event of a dispute by
including in their contract a forum selection clause pointing to a jurisdiction that favours
performance. zur Fussnote 69
Randnummer 23 A related question is whether the parties can make their own law with respect to
remedies. The purpose of Arts. 46 and 62, where not otherwise limited, was to “have the effect of
changing the remedy of obtaining an order by a court that a party perform the contract from a
limited remedy which in many circumstances was available only at the discretion of the court, to a
remedy available at the discretion of the other party.” zur Fussnote 70 There is nothing to stop
parties from including their preferred remedy in their contracts. zur Fussnote 71 This could take two
guises: one limiting the availability of the remedy of performance, or one requiring it. The first
approach is likely to be enforceable as a permissible calibration of the remedial scheme available
under the Convention. zur Fussnote 72 The second approach is likely to be effective only insofar as
the enforcing court is willing to give it effect. zur Fussnote 73 Again one might assume it would be
more likely to be given effect in a civil law court rather than in a common law court, thus making
essential the forum selection clause of the contract. In practice, however, the circumstances of the
case and the feasibility of ordering performance will have an effect on the forum’s decision.
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Fussnote 66

Reiley, International Sales Contracts (2008) p. 228; Huber, in: Huber/Mullis, The CISG
(2007), p. 190; Müller-Chen, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 28
para. 24. zurück zum Text
Fussnote 67

See Section 1.2, supra. zurück zum Text

Fussnote 68

Bridge, in: Flechtner/Brand/Walter, Drafting Contracts (2007), p. 95. zurück zum Text
Fussnote 69

Müller-Chen, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 28 para. 24. zurück

zum Text
Fussnote 70

Secretariat Commentary on 1978 Draft, Art. 26 (now Art. 28) para. 4. zurück zum Text
Fussnote 71

Torsello suggests that requiring parties to include provisions respecting their preferred
remedies in their contracts is inefficient as many will prefer not to incur the transaction
costs associated with negotiating about matters that might never have any effect. Torsello,
Remedies for Breach of Contract Under the 1980 Convention on Contracts for the
International Sale of Goods (CISG), in: Ferrari (ed), Quo Vadis CISG: Celebrating the 25 th
Anniversary of the United Nations Convention on Contracts for the International Sale of
Goods (2005), p. 49. zurück zum Text
Fussnote 72

Torsello, Remedies for Breach of Contract Under the 1980 Convention on Contracts for
the International Sale of Goods (CISG), in: Ferrari (ed), Quo Vadis CISG: Celebrating the
25th Anniversary of the United Nations Convention on Contracts for the International Sale
of Goods (2005), pp. 75 et seq. zurück zum Text
Fussnote 73

Torsello, Remedies for Breach of Contract Under the 1980 Convention on Contracts for the
International Sale of Goods (CISG), in: Ferrari (ed), Quo Vadis CISG: Celebrating the 25 th
Anniversary of the United Nations Convention on Contracts for the International Sale of
Goods (2005), p. 77. zurück zum Text
4. Seller’s right to require payment of the price
Randnummer 24 One area of debate has been whether Art. 28 CISG will have an effect on the right
of a seller to require payment from the buyer in an action for the price under Art. 62. Certainly
requiring that a buyer pay the price of the goods that he has bought can be viewed as specific
performance; he is giving what he would have given under the contract. zur Fussnote 74 Common
law jurisdictions do not, however, view it as such. In New Zealand, for example, an action for the
price is an action in debt rather than in contract. It is thus not subject to rules “relating to recovery
of damages including proof, remoteness, and mitigation of loss.” zur Fussnote 75 A similar view
prevails in England’s Sale of Goods Act. zur Fussnote 76 Under the UCC in the United States, a buyer
is entitled to recover the price only when the buyer has accepted the goods or when the goods are
damaged or lost after the risk of loss has passed to the buyer, or when the goods have been identified
to the contract and the seller is unable to re-sell them at a reasonable price (or the circumstances
indicate that such an effort would be fruitless). zur Fussnote 77 This is viewed as an action in
damages. In no case is it viewed as specific performance. zur Fussnote 78
Randnummer 25 An action for the price under Art. 62 is more reasonably viewed as performance;
the Convention ought not to be interpreted in accordance with domestic law categories. zur Fussnote
79 In common law courts, then, a claimant might be better advised to seek a remedy in damages
under Arts 74 to 77. zur Fussnote 80
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Fussnote 74

Treitel, Remedies for Breach of Contract (1988) p. 43. zurück zum Text
Fussnote 75

Whittington, Reconsidering Domestic Sale of Goods Remedies in Light of the CISG, 37

Victoria University Wellington Law Review (2006) 421 (439). zurück zum Text
Fussnote 76

Sale of Goods Act 1979 s. 52. zurück zum Text

Fussnote 77

UCC § 2–709. zurück zum Text

Fussnote 78

Boghossian, A Comparative Study of Specific Performance Provisions in the United Nations

Convention on Contracts for the International Sale of Goods, Review of the Convention on
Contracts for the International Sale of Goods (CISG) (1999–2000) 3 (24) (Pace); Treitel,
Remedies for Breach of Contract (1988) p. 45. zurück zum Text
Fussnote 79

See the commentary to Art. 62 CISG infra paras 4 et seq. zurück zum Text
Fussnote 80

Lookofsky, The 1980 United Nations Convention on Contracts for the International Sale of
Goods, Art. 28, Specific Performance, in: Herbots/Blanpain (eds), International
Encyclopaedia of Laws – Contracts, Supplement 29 (2000), p. 81 (Pace). zurück zum
Text

III. Comparable Rules

Randnummer 26 Neither the PICC, nor the PECL, nor the DCFR contains a provision equivalent to
Art. 28 CISG. They are thus not helpful in shedding light on the proper interpretation of Art. 28. All
give creditors the right to demand performance, subject to certain exceptions. zur Fussnote 81 The
PICC, the PECL, and the DCFR require that an aggrieved party seek specific performance within a
reasonable time after he has become aware of the non-performance; otherwise, he loses that option.
zur Fussnote 82 The PICC also give parties the option of opting out of specific performance as a
potential remedy. zur Fussnote 83 Absent those limiting factors, however, the PICC suggest a court
does not have the discretion to refuse performance. zur Fussnote 84
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Fussnote 81

Art. 7.2.2 PICC; Art. 9:102 PECL; Art. III-3:302 DCFR. These provisions are discussed
thoroughly in the commentary to Arts 46(1) paras 9 et seq. and 62 para. 10, infra. zurück
zum Text
Fussnote 82

Art. 7.2.2(e) PICC; Art. 9:102(3) PECL; Art. III-3:302(4). zurück zum Text
Fussnote 83

Art. 7.2.5 PICC. This exercise in party autonomy could be limited by the laws of the state
in which enforcement is sought, in much the same way that Art. 28 CISG limits that
remedy, if the jurisdiction views its laws as non-derogable mandatory laws or as court
rules not subject to alteration by the parties. See, e. g., Gabriel, Contracts for the Sale of
Goods: A Comparison of US and International Law (2009) p. 120; Supreme Court (U.S.)
25 March 2008, Hall Street Associates, LLC v Mattel, Inc., 552 U.S. 576 (holding that
parties could not alter the standard of review accorded by courts to arbitral awards under
the Federal Arbitration Act). zurück zum Text
Fussnote 84

Felemegas, The right to require specific performance: comparison between the provisions
of the CISG (Arts 28, 46, and 62) and counterpart provisions of the UNIDROIT Principles
(Arts. 7.2.1–7.2.5), in: Felemegas (ed), An International Approach to the Interpretation of
the United Nations Convention on Contracts for the International Sale of Goods (1980) as
Uniform Sales Law (2007), pp. 155 seq. zurück zum Text