1990 BILL 55 Second Session, 22nd Legislamre, 39 EUzabedi II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 55 INTERNATIONAL CONVENTIONS IMPLEMENTATION ACT THE ATTORNEY GENERAL Fkst Reading Second Reading Committee of die Whole Thkd Reading Royal Assent

Bill 55 BILL 55 1990 INTERNATIONAL CONVENTIONS IMPLEMENTATION ACT (Assented to , 1990) HER MAJESTY, by and with die advice and consent of the Legislative Assembly of Alberta, enacts as foUows: PARTI inteinationai 1

(1) In diis Part, "Convention" means tiie Convention on tiie Law ^^ Applicable to Trusts and on thek Recognition set out in

Schedule 1.

(2) This Act does not apply to conflicts solely between the laws of the provinces and territories of Canada.

(3) The Convention applies in tiie Province.

(4) Paragraph 2 of

Article 16 of the Convention does not apply in die Province.

(5) Article 22 of the Convention is not to be construed as affecting the law to be appUed in relation to anything done or omitted under a trust before the coming into force of diis Act.

(6) The Convention is extended to tmsts declared by judicial decisions including constructive trusts and resulting trusts.

(7) Nothing in this Act is to be construed as requiring that recognition or effect be given to a ttust declared by judicial decision in another state or a severable aspect of such a tinist, if the Court of Queen's Bench is satisfied that there is a substantial reason for refusing to give recognition or effect to the trust or aspect.

(8) This

Part comes into force on Proclamation.

International Sale of Goods Act

PART 2 2(1) In this Part, "Convention" means tiie United Nations Convention on Contracts for the International Sale of Goods set out in

Schedule 2.

(2) The Convention applies in the Province.

(3) Parties to a contract to which the Convention would otherwise apply may exclude its application by expressly providing in die contract that the local domestic law of Alberta or anodier jurisdiction appUes to k or that tiie Convention does not apply to it.

(4) Where there is confUct between diis Act and any otiier enactment, diis Act prevaUs.

(5) This

Part comes into force on Proclamation.

PART 3 Reciprocal Recognition and Enforcemmt of Judgments 3(1) In this Part, "Convention" means the Convention Betiveen Canada and die United Kingdom of Great Britain and Northern Ireland Providing for the Reciprocal Recognition and Enforcement of Judgments in CivU and Commercial Matters set out in

Schedule 3.

(2) The Convention applies in the Province.

(3) The Court of Queen's Bench shall be the court to which application for registtation of a judgment given by a court of die United Kingdom may be made.

(4) Where diere is a conflict between tiiis Act and any enactinent, this Act prevails.

(5) This

Part comes into force on Proclamation.

SCHEDULE 1 CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR RECOGNITION The States signatory to tiie present Convention, Considering diat die tiiist, as developed in courts of equity in common law jurisdictions and adopted with some modifications in odier jurisdictions, is a unique legal instimtion, Desking to estabUsh common provisions on die law applicable to tiiists and to deal with the most important issues conceming the recognition of tiusts. Have resolved to conclude a Convention to tiiis effect, and have agreed on the foUowing provisions —

CHAPTER ONE - SCOPE

Article 1 This Convention specifies tiie law appUcable to tiiists and governs thek recognition.

Article 2 For tiie purposes of tiiis Convention, tiie term "trust" refers to tiie legal relationships created - inter vivos or on deatii - by a person, tiie setflor, when assets have been placed under die control of a trustee for die benefit of a beneficiary or for a specified purpose. A dust has die foUowing characteristics — (

a) die assets constitute a separate fund and are not a part of die trustee's own estate; (

b) titie to die ttust assets stands in die name of die ttustee or in die name of anodier person on behalf of tiie ttustee; (

c) die ttustee has the power and die duty, in respect of which he is accountable, to manage, employ or dispose of die assets in accordance witii tiie terms of tiie trust and die special duties imposed upon him by law. The reservation by the settior of certain rights and powers, and the fact that the tinstee may himself have rights as a beneficiary, are not necessarily inconsistent with die existence of a trust.

Article 3 The Convention applies only to tiiists created voluntarily and evidenced in writmg.

Article 4 The Convention does not apply to preUminary issues relating to the vaUdity of wiUs or of other acts by virtue of which assets are ttansferted to the tinstee.

Article 5 The Convention does not apply to the extent that the law specified by

Chapter II does not provide for trusts or the category of trusts involved.

CHAPTER II - APPLICABLE LAW

Article 6 A tinst shall be governed by the law chosen by die settior. The choice must be expressed or be impUed in the terms of the instinment creating or tiie writing evidencing the trust, interpreted, if necessary, in the tight of die circumstances of the case. Where the law chosen under the previous paragraph does not provide for trusts or the category of trust involved, the choice shall not be effective and die law specified in

Article 7 shaU apply.

Article 7 Where no appUcable law has been chosen, a trust shaU be governed by the law with which it is most closely connected. In ascertaining die law witii which a ttust is most closely connected reference shaU be made in particular to — (

a) die place of administtation of the trust designated by die settior; (

b) tiie sims of tiie assets of die tinst; (

c) the place of residence or business of the trustee; (

d) the objects of the tinst and the places where they are to be fulfilled.

Article 8 The law specified by

Article 6 or 7 shall govern the validity of the tinst, its constiniction, its effects, and die administtation of the tinst. In particular tiiat law shaU govern — (

a) the appointment, resignation and removal of trustees, the capacity to act as a tinstee, and the devolution of the office of trustee; (

b) die rights and duties of trustees among diemselves; (

c) tiie right of trustees to delegate in whole or in part the discharge of diek duties or the exercise of thek powers; (

d) the power of ttustees to administer or to dispose of trust assets, to create security interests in the tinst assets, or to acquke new assets; (

e) the powers of investment of trustees; (

f) restrictions upon the duration of die tinst, and upon the power to accumulate the income of the trust; (

g) die relationships between tiie ttustees and the beneficiaries including die personal UabiUty of the trustees to tiie beneficiaries; (

h) tiie variation or termination of the trust; (

i) tiie distribution of the trust assets; (

j) tiie duty of trustees to account for thek administtation.

Article 9 In applying tiiis Chapter, a severable aspect of tiie ttust, particularly matters of administtation, may be governed by a different law.

Article 10 The law appUcable to die vaUdity of die tinst shaU determine whedier that law or the law goveming a severable aspect of die tmst may be replaced by anodier law.

CHAPTER III - RECOGNITION

Article 11 A tinst created in accordance witii tiie law specified by die preceding

Chapter shall be recognized as a tinst. Such recognition shaU imply as a minimum, that the tinst property constimtes a separate fund, tiiat tiie tinstee may sue and be sued in his capacity as tinstee, and that he may appear or act in this capacity before a notary or any person acting in an official capaci^. In so far as the law applicable to the tinst requkes or provides, such recognition shall imply, in particular — (

a) diat personal creditors of the tinstee shaU have no recourse against the tinst assets; (

b) that the tinst assets shaU not form part of the tinstee's estate upon his insolvency or bankraptcy; (

c) diat the tinst assets shall not form part of the matiimonial property of tiie tmstee or his spouse nor part of the tinstee's estate on his death; (

d) diat the tmst assets may be recovered when die tinstee, in breach of trast, has mingled tmst assets with his own property or has aUenated tmst assets. However, the rights and obUgations of any thkd party holder of the assets shaU remain subject to the law determined by the choice of law mles of the fomm.

Article 12 Where the tinstee deskes to register assets, movable or immovable, or documents of titie to diem, he shall be entitied, in so far as diis is not prohibited by or inconsistent with the law of the State where registtation is sought, to do so in his capacity as tmstee or in such other way that the existence of the tmst is disclosed.

Article 13 No State shaU be bound to recognize a tmst die significant elements of which, except for the choice of tiie applicable law, die place of administtation and die habitual residence of the tinstee, are more closely connected witii States which do not have die institution of the tinst or the category of tmst involved.

Article 14 The Convention shall not prevent the application of mles of law more favourable to the recognition of tmsts.

CHAPTER IV - GENERAL CLAUSES

Article 15 The Convention does not prevent the application of provisions of the law designated by die conflicts mles of the forum, in so far as tiiose provisions cannot be derogated from by voluntary act, relating ki particular to tiie foUowing matters — (

a) tiie protection of minors and incapable parties; (

b) the personal and proprietary effects of marriage; (

c) succession rights, testate and intestate, especially the indefeasible shares of spouses and relatives; (

d) the ttansfer of titie to property and security interests in property; (

e) the protection of creditors in matters of insolvency; (

f) the protection, in other respects, of tiikd parties acting in good faith. If recognition of a tmst is prevented by appUcation of the preceding paragraph, die court shaU tty to give effect to die objects of the ttust by other means.

Article 16 The Convention does not prevent the appUcation of tiiose provisions of the law of tiie fomm which must be appUed even to international simations, irrespective of mles of conflict of laws. If anotiier State has a sufficientiy close connection with a case then, in exceptional ckcumstances, effect may also be given to mles of that state which have the same character as mentioned in tiie preceding paragraph. Any Conttacting State may, by way of reservation, declare diat it will not apply the second paragraph of tiiis article.

Article 17 In tiie Convention tiie word "law" means die mles of law in force in a State other than its mles of conflict of laws.

Article 18 The provisions of the Convention may be disregarded when diek application would be manifestiy incompatible with public poUcy (ordre public).

Article 19 Nothing in the Convention shall prejudice the powers of States in fiscal matters.

Article 20 Any Conttacting State may, at any time, declare tiiat the provisions of the Convention wUl be extended to tmsts declared by judicial decisions. This declaration shall be notified to the Ministry of Foreign Affaks of die Kingdom of the Netherlands and wUl come into effect on die day when tiiis notification is received.

Article 31 is appUcable to the withdrawal of diis declaration in tiie same way as it applies to a denunciation of the Convention.

Article 21 Any Contracting State may reserve the right to apply the provisions of

Chapter III only to tinsts the vaUdity of which is govemed by the law of a Contracting State.

Article 22 The Convention appUes to tmsts regardless of the date on which they were created. However, a Conttacting State may reserve die right not to apply the Convention to tmsts created before die date on which, in relation to that State, the Convention enters into force.

Article 23 For the purpose of identifying tiie law appUcable under die Convention, where a State comprises several territorial units each of which has its own mles of law in respect of tmsts, any reference to the law of diat State is to be constined as referring to the law in force in the territorial unit in question.

Article 24 A State witiiin which different territorial units have diek own mles of law in respect of tinsts is not bound to apply the Convention to conflicts solely between the laws of such units.

Article 25 The Convention shaU not affect any other international instinment containing provisions on matters govemed by tiiis Convention to which a Contracting State is, or becomes, a Party.

CHAPTER V - FINAL CLAUSES

Article 26 Any State may, at the time of signature, ratification, acceptance, approval or accession, or at tiie time of making a declaration in terms of

Article 29, make the reservations provided for in Articles 16, 21 and 22. No other reservation shaU be permitted. Any Conttacting State may at any time withdraw a reservation which it has made; the reservation shaU cease to have effect on the fkst day of the thkd calendar month after notification of the witiidrawal.

Article 27 The Convention shall be open for signatme by the States which were members of the Hague Conference on Private International Law at the time of its Fifteentii Session. It shall be ratified, accepted or approved and the instinments of ratification, acceptance or approval shall be deposited with the Ministiy of Foreign Affaks of tiie Kingdom of die Netiierlands.

Article 28 Any other State may accede to the Convention after it has entered into force in accordance with

Article 30, paragraph 1. The instinment of accession shall be deposited with the Ministiy of Foreign Affaks of the Kingdom of the Netiierlands. The accession shall have effect only as regards die relations between the accedkig State and tiiose Conttacting States which have not raised an objection to its accession in the twelve mondis after die receipt of the notification referred to ki

Article 32. Such an objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Mkiistiy of Foreign Affaks of tiie Kkigdom of die Netiierlands.

Article 29 If a State has two or more territorial units in which different systems of law are applicable, it may at die time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all of its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time. Any such declaration shall be notified to the Ministry of Foreign Affaks of die Kingdom of the Netherlands and shaU state expressly the territorial units to which die Convention applies. If a State makes no declaration under diis article, tiie Convention is to extend to all territorial units of diat State.

Article 30 The Convention shall enter into force on the fkst day of the thkd calendar month after the deposit of die dikd instinment of ratification, acceptance or approval referred to in

Article 27. Thereafter tiie Convention shaU enter into force — (

a) for each State ratifying, accepting or approving it subsequentiy, on die first day of the thkd calendar mondi after the deposk of its instinment of ratification, acceptance or approval; (

b) for each acceding State, on the fkst day of die dikd calendar month after the expiry of the period referred to in

Article 28; (

c) for a territorial unit to which the Convention has been extended in conformity with

Article 29, on tiie first day of die dikd calendar mondi after tiie notification referred to in that article.

Article 31 Any Conttactkig State may denounce this Convention by a formal notification ki writing addressed to die Ministiy of Foreign Affaks of tiie Kingdom of the Netherlands, depositary of die Convention. The denunciation takes effect on tiie fkst day of die month foUowing die expkation of six montiis after die notification is received by the depositary or on such later date as is specified in the notification. 10

Article 32 The Ministiy of Foreign Affaks of tiie Kingdom of die Netiieriands shaU notify the States Members of die Conference and die States which have acceded in accordance widi

Article 28, of tiie following — (

a) die signatures and ratifications, acceptances or approvals referted to in

Article 27; (

b) tiie date on which the Convention enters into force in accordance with

Article 30; (

c) tiie accessions and the objections raised to accessions referred to in

Article 28; (

d) die extensions referred to in

Article 29; (

e) tiie declarations referred to in

Article 20; (

f) tiie reservation or witiidrawals referred to in

Article 26; (

g) the denunciations referred to in

Article 31. In wimess whereof the undersigned, being duly authorized thereto, have signed tiiis Convention. Done at The Hague, on the day of , 19 in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of die Govemment of the Kingdom of the Netiierlands, and of which a certified copy shaU be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private Intemational Law at tiie date of its Fifteenth Session. 11

SCHEDULE 2 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS THE STATES PARTIES TO THIS CONVENTION, BEARING IN MIND die broad objectives in die resolutions adopted by the sixth special session of die General Assembly of the United Nations on the establishment of a New Intemational Economic Order, CONSIDERING that die development of intemational ttade on die basis of equality and mumal benefit is an important element in promoting friendly relations among States, BEING OF THE OPINION tiiat tiie adoption of uniform rales which govern conttacts for the intemational sale of goods and take into account the different social, economic and legal systems would contribute to tiie removal of legal barriers in intemational ttade and promote the development of intemational ttade, HAVE AGREED as follows: PARTI SPHERE OF APPLICATION AND GENERAL PROVISIONS

Chapter I SPHERE OF APPLICATION

Article 1 (1) This Convention appUes to conttacts of sale of goods between parties whose places of business are in different States: (

a) when die States are Conttacting States; or (

b) when die rules of private intemational law lead to die application of the law of a Conttacting State.

(2) The fact tiiat tiie parties have tiiek places of business in different States is to be disregarded whenever diis fact does not appear either from die conttact or from any dealings betiveen, or from information disclosed by, die parties at any time before or at the conclusion of the conttact.

(3) Neither die nationaUty of the parties nor tiie civU or commercial character of tiie parties or of tiie conttact is to be taken 12

into consideration in determinmg die appUcation of tiiis Convention.

Article 2 This Convention does not apply to sales: (

a) of goods bought for personal, family or household use, unless die seller, at any time before or at tiie conclusion of tiie conttact, neidier knew nor ought to have known that the goods were bought for any such use; (

b) by auction; (

c) on execution or otherwise by audiority of law; (

d) of stocks, shares, investinent securities, negotiable instinments or money; (

e) of ships, vessels, hovercraft or akcraft; (

f) of electiicity.

Article 3 (1) Conttacts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of die materials necessary for such manufactiire or production.

(2) This Convention does not apply to conttacts in which the preponderant part of the obUgations of the party who furnishes the goods consists m the supply of labour or other services.

Article 4 This Convention governs only the formation of tiie conttact of sale and the rights and obUgations of the seUer and die buyer arising from such a conttact. In particular, except as odierwise expressly provided in this Convention, it is not concemed with: (

a) die validity of the conttact or of any of its provisions or of any usage; (

b) die effect which the conttact may have on the property in the goods sold.

Article 5 This Convention does not apply to die UabiUty of die seUer for death or personal injury caused by die goods to any person. 13

Article 6 The parties may exclude the appUcation of this Convention or, subject to

article 12, derogate fi:om or vary the effect of any of its provisions. Ciiapter II GENERAL PROVISIONS

Article 7 (1) In die

interpretation of this Convention, regard is to be had to its intemational character and to the need to promote uniformity in its application and die observance of good faidi in intemational ttade.

(2) Questions conceming matters govemed by this Convention which are not expressly settled in it are to be settied in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the mles of private intemational law.

Article 8 (1) For the purposes of tiiis Convention statements made by and other conduct of a party are to be interpreted according to his intent where die other party knew or could not have been unaware what that intent was.

(2) If tiie preceding paragraph is not appUcable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.

(3) In determinmg die intent of a party or die understanding a reasonable person would have had, due consideration is to be given to aU relevant ckcumstances of die case including the negotiations, any practices which tiie parties have estabUshed betiveen themselves, usages and any subsequent conduct of the parties.

Article 9 (1) The parties are bound by any usage to which they have agreed and by any practices which tiiey have established between diemselves.

(2) The parties are considered, unless otherwise agreed, to have impliedly made appUcable to thek contract or its formation a usage of which the parties knew or ought to have known and which in intemational ttade is widely known to, and regularly observed by, 14

parties to conttacts of the type involved in the particular ttade concemed.

Article 10 For the purposes of this Convention: (

a) if a party has more tiian one place of business, the place of business is diat which has the closest relationship to the conttact and its performance, having regard to the ckcumstances known to or contemplated by die parties at any time before or at the conclusion of the conttact; (

b) if a party does not have a place of buskiess, reference is to be made to his habimal residence.

Article 11 A conttact of sale need not be concluded in or evidenced by writing and is not subject to any other requkement as to form. It may be proved by any means, including wimesses.

Article 12 Any provision of

article 11,

article 29 or

Part II of this Convention that allows a conttact of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Conttacting State which has made a declaration under

article 96 of this Convention. The parties may not derogate from or vary the effect of this article.

Article 13 For the purposes of this Convention "writing" includes telegram and telex.

PART Ii FORMATION OF THE CONTRACT

Article 14 (1) A proposal for concluding a conttact addressed to one or more specific persons constimtes an offer if it is sufficientiy definite and indicates die intention of the offeror to be bound in case of acceptance. A proposal is sufficientiy definite if it indicates die goods and expressly or impUcitiy fixes or makes provision for determining the quantity and the price. 15

(2) A proposal otiier tiian one addressed to one or more speckic persons is to h& considered merely as an invitation to make offers, unless die contirary is clearly indicated by die person making die proposal.

Article 15 (1) An offer becomes effective when it reaches die offeree.

(2) An offer, even if it is irrevocable, may be withdrawn if the witiidrawal reaches die offeree before or at die same time as tiie offer.

Article 16 (1) Until a conttact is concluded an offer may be revoked if the revocation reaches die offeree before he has dispatched an acceptance.

(2) However, an offer cannot be revoked: (

a) if it indicates, whether by stating a fixed time for acceptance or odierwise, tiiat k is irrevocable; or (

b) if k was reasonable for the offeree to rely on the offer as being krevocable and the offeree has acted in reliance on the offer.

Article 17 An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.

Article 18 (1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. SUence or inactivity does not in itself amount to acceptance.

(2) An acceptance of an offer becomes effective at die moment the indication of assent reaches die offeror. An acceptance is not effective if the indication of assent does not reach the offeror within die time he has fixed or, if no time is fixed, witiiin a reasonable time, due account being taken of the ckcumstances of the ti:ansaction, including the rapidity of the means of communication employed by die offeror. An oral offer must be accepted immediately unless the ckcumstances indicate odierwise.

(3) However, if, by vutue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing

an act, such as one 16

relating to the dispatch of die goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment die act is performed, provided tiiat the act is performed witiiin tiie period of time laid down in the preceding paragraph.

Article 19 (1) A reply to an offer which purports to be an acceptance but contains additions, Umitations or other modifications is a rejection of the offer and constimtes a counter-offer.

(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of die offer constimtes an acceptance, unless die offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to tiiat effect If he does not so object, die terms of die conttact are the terms of tiie offer widi the modifications contained in die acceptance.

(3) Additional or different terms relatmg, among odier tilings, to tiie price, payment, quality and quantity of the goods, place and time of deUvery, extent of one party's UabiUty to the other or the settiement of disputes are considered to alter the terms of die offer materially.

Article 20 (1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to ran from the moment die telegram is handed in for dispatch or from die date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree.

(2) Official hoUdays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because diat day falls on an official holiday or a non-business day at die place of business of the offeror, the period is extended until die fkst business day which follows.

Article 21 (1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror oraUy so informs the offeree or dispatches a notice to tiiat effect.

(2) If a letter or other writing containing a late acceptance shows that it has been sent in such ckcumstances tiiat if its ttansmission 17

had been normal k would have reached die offeror in due time, tiie late acceptance is effective as an acceptance unless, witiiout delay, the offeror orally informs die offeree tiiat he considers his offer as having lapsed or dispatches a notice to that effect

Article 22 An acceptance may be withdrawn if the withdrawal reaches the offeror before or at die same time as the acceptance would have become effective.

Article 23 A conttact is concluded at die moment when an acceptance of an offer becomes effective in accordance with die provisions of diis Convention.

Article 24 For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention "reaches" tiie addressee when it is made orally to him or deUvered by any other means to him personally, to his place of business or maiUng address or, if he does not have a place of business or maiUng address, to his habimal residence.

PART III SALE OF GOODS

Chapter 1 GENERAL PROVISIONS

Article 25 A breach of conttact committed by one of the parties is fundamental if it results in such detiiment to the otiier party as substantiaUy to deprive him of what he is entitied to expect under die conttact, unless die party in breach did not foresee and a reasonable person of the same kind m the same ckcumstances would not have foreseen such a result.

Article 26 A declaration of avoidance of the conttact is effective only if made by notice to tiie other party. 18

Article 27 Unless otherwise expressly provided in this Part of die Convention, if any notice, request or other communication is given or made by a party in accordance with diis Part and by means appropriate in the ckcumstances, a delay or error m die ttansmission of the communication or its failure to arrive does not deprive tiiat party of the right to rely on the communication.

Article 28 If, in accordance with the provisions of this Convention, one party is entitied to requke performance of any obUgation by the odier party, a court is not bound to enter a judgment for specific performance unless the court would do so under its own law in respect of sunUar conttacts of sale not govemed by this Convention.

Article 29 (1) A conttact may be modified or termmated by die mere agreement of die parties.

(2) A conttact in writmg which contains a provision requiring any modification or termination by agreement to be in writing may not be odierwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the otiier party has reUed on diat conduct Ciiapter ii OBLIGATIONS OF THE SELLER

Article 30 The seller must deUver die goods, hand over any documents relating to them and ttansfer the property in the goods, as requked by the conduct and this Convention.

Section I Delivery of tiie goods and iianding over of documents

Article 31 If tiie seller is not bound to deUver die goods at any odier particular place, his obUgation to deUver consists: (

a) if die conttact of sale involves carriage of die goods - in handing die goods over to die first carrier for ttansmission to the buyer; 19

(

b) if, in cases not witiiin the preceding subparagraph, die conttact relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the conttact the parties knew tiiat tiie goods were at, or were to be manufactiired or produced at, a particular place - in placing the goods at the buyer's disposal at diat place; (

c) in otiier cases - in placing the goods at the buyer's disposal at the place where the seUer had his place of business at die time of the conclusion of tiie conttact

Article 32 (1) If the seller, in accordance with the conttact or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the conttact by markings on the goods, by shipping documents or otiierwise, the seller must give die buyer notice of the consignment specifying the goods.

(2) If the seller is bound to arrange for carriage of the goods, he must make such conttacts as are necessary for carriage to die place fixed by means of ttansportation appropriate in die ckcumstances and according to the usual terms for such ttansportation.

(3) If the seUer is not bound to effect insmance in respect of die carriage of die goods, he must, at the buyer's request, provide him widi aU avaUable information necessary to enable him to effect such insurance.

Article 33 The seUer must deUver the goods: (

a) if a date is fixed by or determinable from the conttact on that date; (

b) if a period of time is fixed by or determinable from die conttact, at any time within that period unless ckcumstances indicate that the buyer is to choose a date; or (

c) in any other case, within a reasonable time after die conclusion of the conttact.

Article 34 If die seller is bound to hand over documents relating to tiie goods, he must hand them over at the time and place and in the form requked by the conttact. If die seUer has handed over documents before tiiat time, he may, up to tiiat time, cure any lack of conformity in tiie documents, if the exercise of this right does not 20

cause the buyer unreasonable inconvenience or umeasonable expense. However, die buyer retains any right to claim damages as provided for ki tiiis Convention.

Section ii Conformity of the goods and third party claims

Article 35 (1) The seller must deUver goods which are of die quantity, quality and description requked by die conttact and which are contained or packaged in die manner requked by die conttact

(2) Except where die parties have agreed otiierwise, tiie goods do not conform with die conttact unless tiiey: (

a) are fit for the purpose for which goods of die same description would ordinarily be used; (

b) are fit for any particular purpose expressly or impliedly made known to die seller at the time of the conclusion of the conttact except where the ckcumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skUl and judgment; (

c) possess the quaUties of goods which die seller has held out to the buyer as a sample or model; (

d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect die goods.

(3) The seller is not Uable under subparagraphs (

a) to (

d) of the preceding paragraph for any lack of conformity of die goods if at the time of the conclusion of the conttact tiie buyer knew or could not have been unaware of such lack of conformity.

Article 36 (1) The seller is Uable in accordance witii tiie conttact and this Convention for any lack of conformity which exists at tiie time when the risk passes to the buyer, even tiiough die lack of conformity becomes apparent only after that time.

(2) The seller is also Uable for any lack of conformity which occurs after tiie time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee tiiat for a period of time the goods wUl remain fit for thek ordinary purpose or for some particular purpose or wiU retain specified qualities or characteristics. 21

Article 37 If the seller has deUvered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of tiie goods deUvered, or deUver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in die goods deUvered, provided diat die exercise of this right does not cause the buyer unreasonable inconvenience or umeasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.

Article 38 (1) The buyer must examine die goods, or cause diem to be examined, witiiin as short a period as is practicable in the ckcumstances.

(2) If tiie conttact involves carriage of the goods, examination may be deferted until after the goods have arrived at tiiek destination.

(3) If die goods are redkected in ttansit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of tiie conclusion of tiie conttact the seller knew or ought to have known of the possibiUty of such redkection or redispatch, examination may be deferred until after tiie goods have arrived at the new destination.

Article 39 (1) The buyer loses the right to rely on a lack of conformity of die goods if he does not give notice to the seUer specifying die nature of the lack of conformity widiin a reasonable time after he has discovered it or ought to have discovered it

(2) In any event, die buyer loses the right to rely on a lack of conformity of tiie goods if he does not give die seller notice thereof at die latest within a period of two years from die date on which die goods were actually handed over to the buyer, unless this time-limk is inconsistent witii a conttacmal period of guarantee.

Article 40 The seller is not entitied to rely on die provisions of articles 38 and 39 if die lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to die buyer. 22

Article 41 The seUer must deUver goods which are free from any right or claim of a thkd party, unless the buyer agreed to take die goods subject to tiiat right or claim. However, if such right or claim is based on industiial property or other intellectual property, the seller's obligation is govemed by

article 42.

Article 42 (1) The seller must deUver goods which are free from any right or claim of a thkd party based on industiial property or odier inteUecmal property, of which at die time of the conclusion of the conttact the seller knew or could not have been unaware, provided that the right or claim is based on industiial property or other inteUectaal property: (

a) under die law of the State where the goods wUl be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the conttact diat the goods would be resold or odierwise used in tiiat State; or (

b) in any otiier case, under the law of die State where the buyer has his place of business.

(2) The obUgation of tiie seller under die preceding paragraph does not extend to cases where: (

a) at die time of die conclusion of die contract the buyer knew or could not have been unaware of the right or claim; or (

b) die right or claim results from die seller's compliance widi technical drawings, designs, formulae or other such specifications fumished by the buyer.

Article 43 (1) The buyer loses die right to rely on die provisions of

article 41 or

article 42 if he does not give notice to tiie seUer specifying tiie natitte of tiie right or claim of tiie thkd party widiin a reasonable time after he has become aware or ought to have become aware of die right or claim.

(2) The seUer is not entitied to rely on tiie provisions of the preceding paragraph if he knew of the right or clakn of tiie tiikd party and tiie nature of k.

Article 44 Notwitiistanding tiie provisions of paragraph (1) of

article 39 and paragraph (1) of

article 43, tiie buyer may reduce tiie price in 23

accordance witii

article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his faUme to give tiie requked notice.

Section ill Remedies for breach of contract by the seller

Article 45 (1) If the seUer faUs to perform any of his obUgations under tiie conttact or this Convention, the buyer may: (

a) exercise the rights provided in articles 46 to 52; (

b) claim damages as provided in articles 74 to 77.

(2) The buyer is not deprived of any right he may have to claim damages by exerciskig his right to other remedies.

(3) No period of grace may be granted to the seller by a court or arbitral tiibunal when tiie buyer resorts to a remedy for breach of conttact

Article 46 (1) The buyer may requke performance by the seller of his obUgations unless tiie buyer has resorted to a remedy which is inconsistent with this requkement.

(2) If the goods do not conform with the conttact, the buyer may requke deUvery of substitute goods only if the lack of conformity constimtes a fundamental breach of contract and a request for substitute goods is made eidier in conjunction with notice given under

article 39 or within a reasonable time thereafter.

(3) If tiie goods do not conform widi the conttact, the buyer may requke die seUer to remedy the lack of conformity by repak, unless this is umeasonable having regard to all the ckcumstances. A request for repak must be made eidier in conjunction witii notice given under

article 39 or widiin a reasonable time thereafter.

Article 47 (1) The buyer may fix an additional period of time of reasonable length for performance by the seUer of his obligations.

(2) Unless the buyer has received notice from the seUer that he wiU not perform witiiin tiie period so fixed, the buyer may not, during that period, resort to any remedy for breach of conttact. However, the buyer is not deprived diereby of any right he may have to claim damages for delay in performance. 24

Article 48 (1) Subject to

article 49, the seUer may, even after the date for deUvery, remedy at his own expense any failme to perform his obUgations, if he can do so without umeasonable delay and without causing the buyer umeasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by die buyer. However, the buyer retains any right to claim damages as provided for in this Convention.

(2) If the seller requests the buyer to make known whetiier he wUl accept performance and the buyer does not comply with the request witiiin a reasonable time, the seUer may perform within the time indicated in his request The buyer may not during that period of time, resort to any remedy which is inconsistent with performance by tiie seUer.

(3) A notice by tiie seller tiiat he wUl perform widiin a specified period of time is assumed to include a request, under the preceding paragraph, that tiie buyer make known his decision.

(4) A request or notice by tiie seller under paragraph (2) or (3) of this

article is not effective unless received by the buyer.

Article 49 (1) The buyer may declare die conttact avoided: (

a) if the faUure by die seUer to perform any of his obUgations under the conttact or this Convention amounts to a fundamental breach of conttact; or (

b) ki case of non-delivery, if the seller does not deUver the goods within the additional period of time fixed by die buyer in accordance widi paragraph (1) of

article 47 or declares diat he wiU not deUver witiiin the period so fixed.

(2) However, in cases where die seller has deUvered die goods, die buyer loses tiie right to declare die conttact avoided unless he does so: (

a) in respect of late deUvery, witiiin a reasonable time after he has become aware tiiat deUvery has been made; (

b) ki respect of any breach otiier tiian late delivery, widiin a reasonable time: (

i) after he knew or ought to have known of die breach; (ii) after tiie expkation of any additional period of time fixed by tiie buyer in accordance witii paragraph (1) of 25

article 47, or after tiie seller has declared that he wiU not perform his obligations witiiin such an additional period; or (iu) after die expkation of any additional period of time indcated by die seller in accordance witii paragraph (2) of

article 48, or after the buyer has declared tiiat he will not accept performance.

Article 50 If the goods do not conform with die conttact and whether or not the price has akeady been paid, die buyer may reduce the price in the same proportion as tiie value that the goods actually deUvered had at the time of die delivery bears to the value that conforming goods would have had at that time. However, if die seUer remedies any faUure to perform his obligations in accordance widi

article 37 or

article 48 or if the buyer refuses to accept performance by the seller in accordance witii tiiose articles, the buyer may not reduce the price.

Article 51 (1) If die seller delivers only a part of die goods or if only a part of the goods deUvered is in conformity with the contract, articles 46 to 50 apply in respect of the part which is missing or which does not conform.

(2) The buyer may declare the conttact avoided in its entkety only if the faUure to make delivery completely or in conformity widi the conttact amounts to a fundamental breach of the conttact.

Article 52 (1) If die seller delivers the goods before die date fixed, the buyer may take deUvery or refuse to take deUvery.

(2) If die seUer deUvers a quantity of goods greater dian diat provided for in die conttact tiie buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of aU or part of die excess quantity, he must pay for k at die conttact rate.

Chapter III OBLIGATIONS OF THE BUYER

Article 53 The buyer must pay the price for the goods and take delivery of them as requked by die conttact and this Convention. 26

Section 1 Payment of the price

Article 54 The buyer's obUgation to pay tiie price includes taking such steps and complying with such formalities as may be requked under the conttact or any laws and regulations to enable payment to be made.

Article 55 Where a conttact has been validly concluded but does not expressly or implicitiy fix or make provision for determining the price, the parties are considered, in die absence of any indication to the conttary, to have impUedly made reference to the price generally charged at the time of die conclusion of die conttact for such goods sold under comparable ckcumstances in the trade concemed.

Article 56 If the price is fixed according to the weight of the goods, in case of doubt k is to be determined by the net weight

Article 57 (1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (

a) at the seller's place of business; or (

b) if the payment is to be made against the handing over of die goods or of documents, at die place where die handing over takes place.

(2) The seller must bear any mcrease in the expenses kicidental to payment which is caused by a change in his place of business subsequent to the conclusion of the conttact

Article 58 (1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seUer places either the goods or documents conttolUng diek disposition at tiie buyer's disposal in accordance with the conttact and this Convention. The seller may make such payment a condition for handing over the goods or documents.

(2) If the conttact involves carriage of the goods, the seller may dispatch tiie goods on terms whereby the goods, or documents 27

conttoUing tiiek disposition, wUl not be handed over to tiie buyer except against payment of the price.

(3) The buyer is not bound to pay the price until he has had an opportunity to examine tiie goods, unless the procedmes for deUvery or payment agreed upon by the parties are inconsistent widi his having such an opportunity.

Article 59 The buyer must pay die price on the date fixed by or determinable from the conttact and this Convention without the need for any request or compUance witii any formality on tiie part of the seller.

Section II Tailing delivery

Article 60 The buyer's obUgation to take delivery consists: (

a) in doing all the acts which could reasonably be expected of him in order to enable die seller to make deUvery; and (

b) in taking over the goods.

Section III Remedies for breach of contract by the buyer

Article 61 (1) If die buyer fails to perform any of his obUgations under die conttact or this Convention, the seUer may: (

a) exercise the rights provided in articles 62 to 65; (

b) claim damages as provided in articles 74 to 77.

(2) The seUer is not deprived of any right he may have to claim damages by exercising his right to otiier remedies.

(3) No period of grace may be granted to the buyer by a court or arbiti:al tiibunal when the seUer resorts to a remedy for breach of conttact

Article 62 The seller may requke the buyer to pay die price, take deUvery or perform his otiier obligations, unless the seller has resorted to a remedy which is inconsistent witii this requkement. 28

Article 63 (1) The seUer may fix an additional period of time of reasonable length for performance by the buyer of his obligations.

(2) Unless tiie seller has received notice from the buyer that he wiU not perform within the period so fixed, the seller may not, during tiiat period, resort to any remedy for breach of conttact. However, die seUer is not deprived tiiereby of any right he may have to claim damages for delay in performance.

Article 64 (1) The seller may declare die contract avoided: (

a) if the faUure by the buyer to perform any of his obUgations under the conttact or this Convention amounts to a fundamental breach of conttact; or (

b) if the buyer does not, widiin the additional period of time fixed by the seUer in accordance with paragraph (1) of

article 63, perform his obligation to pay the price or take deUvery of the goods, or if he declares that he wUl not do so within the period so fixed.

(2) However, in cases where the buyer has paid the price, the seller loses the right to declare the conttact avoided unless he does so: (

a) in respect of late performance by the buyer, before the seller has become aware that performance has been rendered; or (

b) in respect of any breach odier dian late performance by the buyer, within a reasonable time: (

i) after tiie seller knew or ought to have known of the breach; or (ii) after die expkation of any additional period of time fixed by the seller in accordance witii paragraph (1) of

article 63, or after tiie buyer has declared tiiat he wUl not perform his obUgations within such an additional period.

Article 65 (1) If under die conttact the buyer is to specify die form, measmement or other features of die goods and he fails to niake such specification either on tiie date agreed upon or within a reasonable tkne after receipt of a request from die seller, the seUer may, widiout prejudice to any otiier rights he may have, make the 29

specification himself in accordance with the requirements of the buyer that may be known to him.

(2) If die seller makes die specification himself, he must kiform the buyer of the detaUs thereof and must fix a reasonable time within which die buyer may make a different specification. If, after receipt of such a communication, the buyer faUs ti) do so widiin the tune so fixed, die specification made by the seUer is binding.

Chapter IV PASSING OF RISK

Article 66 Loss of or damage to the goods after the risk has passed to die buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to

an act or omission of die seller.

Article 67 (1) If die conttact of sale involves carriage of the goods and die seller is not bound to hand diem over at a particular place, the risk passes to the buyer when the goods are handed over to die fkst carrier for ttansmission to the buyer in accordance widi die conttact of sale. If the seller is bound to hand die goods over to a carrier at a particular place, the risk does not pass to the buyer until die goods are handed over to die carrier at tiiat place. The fact that die seller is authorized to retain documents conttolUng die disposition of die goods does not affect die passage of the risk.

(2) Nevertheless, the risk does not pass to the buyer until tiie goods are clearly identified to tiie conttact whether by markings on the goods, by shipping documents, by notice given to the buyer or otiierwise.

Article 68 The risk in respect of goods sold in ttansit passes to the buyer from the time of tiie conclusion of the conttact However, if tiie ckcumstances so indicate, die risk is assumed by die buyer from the time the goods were handed over to die carrier who issued die documents embodying die conttact of carriage. Nevertiieless, if at the time of the conclusion of the conttact of sale the seUer knew or ought to have known tiiat tiie goods had been lost or damaged and did not disclose this to the buyer, die loss or damage is at die risk of the seller. 30

Article 69 (1) In cases not withki articles 67 and 68, the risk passes to the buyer when he takes over the goods or, if he does not do so in due tune, from the time when tiie goods are placed at his disposal and he commits a breach of conttact by faking to take delivery.

(2) However, if die buyer is bound to take over the goods at a place odier than a place of business of die seller, the risk passes when deUvery is due and die buyer is aware of the fact tiiat the goods are placed at his disposal at that place.

(3) If die conttact relates to goods not then identified, die goods are considered not to be placed at the disposal of the buyer until they are clearly identkied to the conttact

Article 70 If the seUer has committed a fundamental breach of conttact, articles 67, 68 and 69 do not impak the remedies available to the buyer on account of the breach.

Chapter V PROVISIONS COMMON TO THE OBLIGATIONS OF THE SELLER AND OF THE BUYER

Section 1 Anticipatory breach and instalment contracts

Article 71 (1) A party may suspend the performance of his obligations if, after the conclusion of tiie conttact, it becomes apparent that the other party wUl not perform a substantial part of his obligations as a result of: (

a) a serious deficiency in his ability to perform or in his creditworthiness; or (

b) his conduct in preparing to perform or in performing tiie conttact.

(2) If tiie seUer has akeady dispatched tiie goods before tiie grounds described in the precedkig paragraph become evident, he may prevent the handing over of the goods to the buyer even though tiie buyer holds a document which entities him to obtain tiiem. The present paragraph relates only to the rights in tiie goods as between tiie buyer and tiie seller. 31

(3) A party suspending performance, whetiier before or after dispatch of the goods, must immediately give notice of the suspension to tiie odier party and must continue witii performance if the odier party provides adequate assurance of his performance.

Article 72 (1) If prior to die date for performance of die conttact it is clear that one of the parties wiU commk a fundamental breach of conttact tiie otiier party may declare the conttact avoided.

(2) If time allows, the party intending to declare die conttact avoided must give reasonable notice to die odier party in order to permk hkn to provide adequate assurance of his performance.

(3) The requkements of die preceding paragraph do not apply k the otiier party has declared diat he wiU not perform his obUgations.

Article 73 (1) In the case of a conttact for delivery of goods by instalments, if the faUure of one party to perform any of his obligations in respect of any instalment constitutes a fundamental breach of conttact with respect to tiiat instahnent, the otiier party may declare tiie conttact avoided witii respect to diat instalment.

(2) If one party's faUure to perform any of his obligations in respect of any kistahnent gives the otiier party good grounds to conclude tiiat a fundamental breach of conttact wiU occur widi respect to future instalments, he may declare die conttact avoided for die future, provided tiiat he does so widiin a reasonable time.

(3) A buyer who declares die conttact avoided in respect of any deUvery may, at die same time, declare k avoided in respect of deUveries akeady made or of futttte deUveries k, by reason of thek interdependence, those deliveries could not be used for die purpose contemplated by tiie parties at the time of tiie conclusion of die conttact.

Section 11 Damages

Article 74 Damages for breach of conduct by one party consist of a sum equal to tiie loss, including loss of profit, suffered by die odier party as a consequence of the breach. Such damages may not exceed tiie loss which the party in breach foresaw or ought to have foreseen at tiie time of tiie conclusion of the conttact in tiie Ught 32

of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of conttact.

Article 75 If tiie conttact is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or tiie seller has resold the goods, the party claiming damages may recover the difference between tiie conttact price and the price in the substimte ttansaction as weU as any fmtiier damages recoverable under

article 74.

Article 76 (1) If tiie conttact is avoided and there is a current price for the goods, the party claiming damages may, k he has not made a pmchase or resale under

article 75, recover the difference between the price fixed by the conttact and the current price at the time of avoidance as well as any further damages recoverable under

article 74. If, however, the party claiming damages has avoided the conttact after taking over the goods, the current price at the time of such taking over shall be appUed instead of the current price at the time of avoidance.

(2) For the purposes of the preceding paragraph, the current price is the price prevaiUng at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods.

Article 77 A party who reUes on a breach of conttact must take such measmes as are reasonable in the ckcumstances to mitigate the loss, including loss of profit, resulting from the breach. If he faUs to take such measmes, the party in breach may claim a reduction in the damages in the amount by which die loss should have been mitigated.

Section ill Interest

Article 78 If a party fails to pay the price or any otiier sum that is in arrears, the otiier party is entitled to interest on it, without prejudice to any claim for damages recoverable under

article 74. 33

Section IV Exemptions

Article 79 (1) A party is not Uable for a failure to perform any of his obUgations if he proves that the failure was due to an impediment beyond his conttol and that he could not reasonably be expected to have taken the impediment into account at the time of tiie conclusion of the conttact or to have avoided or overcome k or its consequences.

(2) If the party's faUure is due to the failme by a tiikd person whom he has engaged to perform die whole or a part of tiie conttact, tiiat party is exempt from UabiUty only if: (

a) he is exempt under the preceding paragraph; and (

b) die person whom he has so engaged would be so exempt if die provisions of that paragraph were applied to him.

(3) The exemption provided by this

article has effect for die period during which the impediment exists.

(4) The party who faUs to perform must give notice to the otiier party of the impediment and its effect on his abiUty to perform. If die notice is not received by the other party within a reasonable tune after die party who faUs to perform knew or ought to have known of the impediment, he is Uable for damages resulting from such non-receipt

(5) Nothing in tiiis

article prevents eidier party from exercising any right odier tiian to claim damages under tiiis Convention.

Article 80 A party may not rely on a failme of die other party to perform, to the extent that such failme was caused by die first party's act or omission.

Section V Effects of avoidance

Article 81 (1) Avoidance of the conttact releases both parties from tiieir obUgations under it, subject to any damages which may be due. Avoidance does not affect any provision of die conttact for die settiement of disputes or any otiier provision of tiie conttact goveming the rights and obligations of the parties consequent upon the avoidance of die conttact. 34

(2) A party who has performed die conttact eidier whoUy or in part may claim restimtion from tiie other party of whatever the fkst party has suppUed or paid under the conttact. If bodi parties are bound to m^e restimtion, they must do so concurrentiy.

Article 82 (1) The buyer loses the right to declare the contract avoided or to requke die seller to deliver substimte goods if k is impossible for him to make restitution of the goods substantiaUy in the condition in which he received them.

(2) The preceding paragraph does not apply: (

a) k the unpossibiUty of making restimtion of tiie goods or of making restitution of tiie goods substantiaUy in the condition in which tiie buyer received diem is not due to his act or omission; (

b) k the goods or part of die goods have perished or deteriorated as a result of the examination provided for in

article 38; or (

c) k the goods or part of die goods have been sold in the normal comse of business or have been consumed or ttansformed by die buyer in the comse of normal use before he discovered or ought to have discovered die lack of conformity.

Article 83 A buyer who has lost the right to declare the conttact avoided or to requke the seller to deUver substitute goods in accordance widi

article 82 retains aU other remedies under the contract and this Convention.

Article 84 (1) If tiie seller is bound to refund the price, he must also pay interest on it, from the date on which the price was paid.

(2) The buyer must account to the seUer for all benefits which he has derived from the goods or part of them: (

a) k he must make restimtion of tiie goods or part of them; or (

b) k k is knpossible for him to make restimtion of aU or part of the goods or to make restitution of aU or part of the goods substantiaUy in die condition in which he received them, but he has nevertheless declared the conttact avoided or required die seller to deliver substimte goods. 35

Section VI Preservation of the goods

Article 85 If die buyer is in delay in taking deUvery of die goods or, where payment of die price and delivery of die goods are to be made concurrentiy, if he fails to pay the price, and the seUer is either in possession of the goods or otherwise able to conttol thek disposition, the seller must take such steps as are reasonable in the ckcumstances to preserve tiiem. He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer.

Article 86 (1) If die buyer has received the goods and intends to exercise any right under die conttact or this Convention to reject them, he must take such steps to preserve them as are reasonable in tiie ckcumstances. He is entitied to retain them until he has been reimbursed his reasonable expenses by die seller.

(2) If goods dispatched to the buyer have been placed at his disposal at thek destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided tiiat this can be done without payment of die price and without umeasonable inconvenience or umeasonable expense. This provision does not apply if the seller or a person authorized to take charge of die goods on his behalf is present at the destination. If the buyer takes possession of the goods under tiiis paragraph, his rights and obligations are govemed by the preceding paragraph.

Article 87 A party who is bound to take steps to preserve die goods may deposit them in a warehouse of a thkd person at the expense of the other party provided that the expense incurred is not unreasonable.

Article 88 (1) A party who is bound to preserve the goods in accordance widi

article 85 or 86 may sell tiiem by any appropriate means tf there has been an umeasonable delay by the otiier party in taking possession of the goods or in taking them back or in paying die price or the cost of preservation, provided that reasonable notice of the intention to seU has been given to tiie otiier party.

(2) If tiie goods are subject to rapid deterioration or diek preservation would involve unreasonable expense, a party who is bound to preserve die goods in accordance with

article 85 or 86 must take reasonable measmes to seU them. To the extent possible he must give notice to the other party of his intention to seU. 36

(3) A party selUng tiie goods has die right to retain out of die proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selUng them. He must account to the other party for the balance.

PART IV FINAL PROVISIONS

Article 89 The Secretary-General of tiie United Nations is hereby designated as the depositary for this Convention.

Article 90 This Convention does not prevail over any intemational agreement which has akeady been or may be entered into and which contains provisions conceming the matters govemed by this Convention, provided that the parties have thek places of business in States parties to such agreement.

Article 91 (1) This Convention is open for signatme at the concluding meeting of the United Nations Conference on Conttacts for the Intemational Sales of Goods and wUl remain open for signatme by aU States at the Headquarters of the United Nations, New York until 30 September 1981.

(2) This Convention is subject to ratification, acceptance or approval by the signatory States.

(3) This Convention is open for accession by all States which are not signatory States as from tiie date it is open for signatme.

(4) Instinments of ratification, acceptance, approval and accession are to be deposited with die Secretary-General of the United Nations.

Article 92 (1) A Conttacting State may declare at the time of signatiire, ratification, acceptance, approval or accession diat k wUl not be bound by

Part II of this Convention or that k wUl not be bound by

Part III of tilis Convention.

(2) A Conttacting State which makes a declaration in accordance witii tiie precedkig paragraph m respect of

Part II or

Part III of this Convention is not to be considered a Contracting State witiiin 37

paragraph (1) of

article 1 of this Convention in respect of matters govemed by the Part to which the declaration applies.

Article 93 (1) If a Conti:acting Smte has two or more territorial units in which, according to its constitution, dkferent systems of law are applicable ki relation to the matters dealt with in this Convention, it may, at the time of signatme, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of tiiem, and may amend its declaration by submitting another declaration at any time.

(2) These declarations are to be notified to the depositary and are to state expressly the territorial units to which tiie Convention extends.

(3) If, by vktue of a declaration under this article, this Convention extends to one or more but not all of die territorial units of a Conttacting State, and if the place of business of a party is located in that State, this place of business, for the purposes of diis Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends.

(4) If a Conttacting State makes no declaration under paragraph (1) of this article, the Convention is to extend to aU territorial units of tiiat State.

Article 94 (1) Two or more Conttacting States which have tiie same or closely related legal mles on matters govemed by this Convention may at any time declare tiiat the Convention is not to apply to conttacts of sale or to thek formation where tiie parties have tiiek places of business in tiiose States. Such declarations may be made jointiy or by reciprocal unUateral declarations.

(2) A Conttacting State which has the same or closely related legal rules on matters govemed by this Convention as one or more non-Conttacting States may at any time declare that die Convention is not to apply to conttacts of sale or to tiiek formation where die parties have thek places of business in tiiose States.

(3) If a State which is tiie object of a declaration under die preceding paragraph subsequentiy becomes a Conttacting State, the declaration made wUl, as from the date on which the Convention enters into force in respect of tiie new Conttactkig State, have die effect of a declaration made under paragraph (1), provided diat die new Conttacting State joins in such declaration or makes a reciprocal unilateral declaration. 38

Article 95 Any State may declare at the time of tiie deposit of its instinment of ratification, acceptance, approval or accession tiiat it wiU not be bound by subparagraph (l)(

b) of

article 1 of this Convention.

Article 96 A Conttacting State whose legislation requkes conttacts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance widi

article 12 tiiat any provision of

article 11,

article 29, or

Part II of tiiis Convention, tiiat aUows a conttact of sale or its modification or termination by agreement or any offer, acceptance, or otiier kidication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State.

Article 97 (1) Declarations made under this Convention at the time of signatme are subject to confirmation upon ratification, acceptance or approval.

(2) Declarations and confirmations of declarations are to be in writing and be formally notkied to tiie depositary.

(3) A declaration takes effect simultaneously with the entry into force of dlis Convention in respect of the State concemed. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the fkst day of the month foUowing the expkation of six months after die date of its receipt by the depositary. Reciprocal unilateral declarations under

article 94 take effect on the first day of the month foUowing the expkation of six months after the receipt of the latest declaration by the depositary.

(4) Any State which makes a declaration under this Convention may witiidraw it at any time by a formal notkication in writing ad(kessed to the depositary. Such withdrawal is to take effect on the fkst day of the month following the expkation of six months after the date of die receipt of die notkication by the depositary.

(5) A withdrawal of a declaration made under

article 94 renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article. 39

Article 98 No reservations are permitted except those expressly authorized in this Convention.

Article 99 (1) This Convention enters into force, subject to tiie provisions of paragraph (6) of this article, on tiie fkst day of the mondi following die expkation of twelve montiis after tiie date of deposit of the tentii instinment of ratkication, acceptance, approval or accession, including an instinment which contains a declaration made under

article 92.

(2) When a State ratifies, accepts, approves or accedes to diis Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, tiiis Convention, witii tiie exception of the Part excluded, enters into force in respect of diat State, subject to the provisions of paragraph (6) of tiiis article, on the first day of die mondi foUowing the expkation of twelve months after tiie date of die deposit of its instinment of ratification, acceptance, approval or accession.

(3) A State which ratkies, accepts, approves or accedes to tfiis Convention and is a party to eitiier or both the Convention relating to a Uniform Law on tiie Formation of Conttacts for die Intemational Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and die Convention relating to a Unkorm Law on die Intemational Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shaU at die same time denounce, as the case may be, either or bodi die 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying tiie Govemment of the Netiierlands to diat effect

(4) A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under

article 92 tiiat it wiU not be bound by

Part II of tiiis Convention shaU at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying tiie Govemment of tiie Netiierlands to that effect

(5) A State party to die 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under

article 92 that it wiU not be bound by

Part III of tiiis Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Formation Convention by notifying tiie Govemment of the Netiierlands to that effect 40

(6) For die purpose of tiiis article, ratkications, acceptances, approvals and accessions in respect of tiiis Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shaU not be effective until such denunciations as may be requked on the part of diose States in respect of the latter two Conventions have themselves become effective. The depositary of this Convention shall consuk witii the Govemment of the Netherlands, as die depositary of the 1964 Conventions, so as to ensme necessary co-ordination in this respect.

Article 100 (1) This Convention applies to the formation of a contract only when the proposal for concluding the conttact is made on or after the date when the Convention enters into force in respect of the Conttacting States referred to in subparagraph (l)(

a) or tiie Conttacting State referred to in subparagraph (l)(

b) of

article 1.

(2) This Convention applies only to conttacts concluded on or after the date when the (Convention enters into force in respect of tiie Conttactmg Smtes referred to in subparagraph (l)(

a) or tiie Conttacting State referred to in subparagraph (l)(

b) of

article 1.

Article 101 (1) A Conttacting State may denounce this Convention, or Part n or

Part III of the Convention, by a formal notification in writing addressed to the depositary.

(2) The denunciation takes effect on the fkst day of tiie montii following die expkation of twelve mondis after die notification is received by the depositary. Where a longer period for the denunciation to take effect is speckled in the notkication, the denunciation takes effect upon the expkation of such longer period after the notkication is received by tiie depositary. DONE at Vienna, tiiis day of eleventh day of April, one tiiousand nine hundred and eighty, in a single original, of which tiie Arabic, Chinese, EngUsh, French, Russian and Spanish texts are equally autiientic.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by thek respective Governments, have signed this Convention. 41

SCHEDULE 3 CONVENTION BETWEEN CANADA AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND PROVIDING FOR THE RECIPROCAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS Canada, and The United Kmgdom of Great Britain and Nortiiem Ireland, DESIRING to provide on the basis of reciprocity for die recognition and enforcement of judgments in civU and commercial matters; HAVE AGREED AS FOLLOWS: PARTI

DEFINITIONS

ARTICLE I In this Convention (a) "appeal" includes any proceeding by way of discharging or setting aside a judgment or an application for a new dial or a stay of execution; (b) "tiie 1968 Convention" means tiie Convention of 27di September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters as amended; (c) "court of a Conttacting State" means (

i) in relation to the United Kingdom, any court of die United Kingdom or of any territory to which diis Convention extends pmsuant to

Article Xin, (ii) in relation to Canada, die Federal Court of Canada or any court of a province or territory to which this Convention extends pmsuant to

Article XII, and the expressions "comt of die United Kingdom" and "court of Canada" shall be consttued accordingly; (d) "judgment" means any decision, however described (judgment, order and the lUce), given by a court in a civU or commercial matter, and includes an award in proceedings on an 42

arbiti^tion if the award has become enforceable in the territory of origin in die same manner as a judgment given by a court in that territory; (e) "judgment creditor" means the person in whose favom the judgment was given, and includes his executors, administtators, successors and assigns; (f) "judgment debtor" means die person against whom the judgment was given and includes any person against whom the judgment is enforceable under the law of die territory of origin; (g) "original court" in relation to any judgment means die court by which die judgment was given; (h) "registering court" means a comt to which an application for tiie registtation of a judgment is made; (i) "territory of origin" means the territory for which the original court was exercising jurisdiction.

PART 11 SCOPE OF THE CONVENTION

ARTICLE II 1. Subject to the provisions of tiiis Article, this Convention shall apply to any judgment given by a court of a Conttacting State after the Convention enters into force and, for the purposes of

Article IX, to any judgment given by a court of a thkd State which is party to the 1968 Convention. 2. This Convention shaU not apply to (

a) orders for the periodic payment of maintenance; (

b) the recovery of taxes, duties or charges of a Uke natme or the recovery of a fine or penalty; (

c) judgments given on appeal from decisions of ttibunals other than courts; (

d) judgments which determine (

i) die stams or legal capacity of natmal persons; (ii) custody or guardianship of infants; (iU) matiimonial matters; 43

(iv) succession to or the administtation of the estates of deceased persons; (

v) bankmptcy, insolvency or the winding up of companies or odier legal persons; (vi) the management of die affaks of a person not capable of managing his own affaks. 3.

Part III of this Convention shall apply only to a judgment whereby a sum of money is made payable. 4. This Convention is without prejudice to any other remedy available to a judgment creditor for the recognition and enforcement in one Conttacting State of a judgment given by a court of die otiier Conttactkig State.

PART III ENFORCEMENT OF JUDGIVIENTS

ARTICLE III 1. Where a judgment has been given by a court of one Conttacting State, tiie judgment creditor may apply in accordance widi

Article VI to a court of the other Contracting State at any time within a period of six years after die date of the judgment (or, where tiiere have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings) to have the judgment registered, and on any such appUcation tfie registering court shaU, subject to such simple and rapid procedures as each Contracting State may prescribe and to the odier provisions of this Convention, order the judgment to be registered. 2.

In addition to the sum of money payable under the judgment of the original court including interest accmed to die date of registtation, the judgment shaU be registered for the reasonable costs of and incidental to registtation, k any, including the costs of obtaining a certified copy of the judgment from the original court. 3.

If, on an application for the registtation of a judgment, it appears to die registering court tiiat tiie judgment is in respect of different matters and diat some, but not all, of the provisions of die judgment are such that k tiiose provisions had been contained in separate judgments those judgments could properly have been registered, the judgment may be registered in respect of die provisions aforesaid but not in respect of any other provisions contained tiierein. 4. Subject to tiie otiier provisions of diis Convention 44

(

a) a registered judgment shaU, for die purposes of enforcement, be of the same force and effect; (

b) proceedings may be taken on it; and (

c) die registering comt shall have the same conttol over its enforcement, as if k had been a judgment originaUy given in the registering court widi effect from die date of registtation.

ARTICLE IV 1. Registtation of a judgment shall be refused or set aside if (

a) die judgment has been satisfied; (

b) the judgment is not enforceable in the territory of origin; (

c) the original court is not regarded by die registering court as having jurisdiction; (

d) the judgment was obtained by fraud; (

e) enforcement of the judgment would be contrary to pubUc poUcy in the territory of the registering court; (0 the judgment is a judgment of a country or territory other than die territory of origin which has been registered in the original comt or has become enforceable in die territory of origin in the same manner as a judgment of that court; or (

g) in the view of the registering court the judgment debtor either is entitied to immunity from the jurisdiction of that court or was entitled to immunity in the original court and did not submit to its jurisdiction. 2. The law of the registering court may provide that registtation of a judgment may or shaU be set aside if (

a) the judgment debtor, being the defendant in the original proceedings, either was not served with the process of the original court or did not receive notice of tiiose proceedings in sufficient time to enable him to defend the proceedings and, in eitiier case, did not appear; (

b) anotiier judgment has been given by a court having jurisdiction in the matter in dispute prior to the date of judgment ki the original court or 45

(

c) die judgment is not final or an appeal is pending or die judgment debtor is entitled to appeal or to apply for leave to appeal against the judgment in die territory of origin. 3. If at die date of die application for registration tiie judgment of the original comt has been partly satisfied, the judgment shall be registered only ki respect of die balance remaining payable at tiiat date. 4.

A judgment shall not be enforced so long as, in accordance widi tiie provisions of this Convention and the law of die registering court, it is competent for any party to make an application to have the registtation of the judgment set aside or, where such an application is made, until tiie appUcation has been finally determined.

ARTICLE V 1. For die purposes of

Article IV (l)(

c) the original court shall be regarded as havmg jurisdiction if (

a) die judgment debtor, being a defendant in die original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings; (

b) the judgment debtor was plaintiff in, or counterclaimed in, the proceedings in die original court; (

c) the judgment debtor, being a defendant in the original court, had before the commencement of die proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that comt or of the courts of the territory of origin; (

d) die judgment debtor, being a defendant in die original court, was at die time when the proceedings were instimted habituaUy resident in, or being a body corporate had its principal place of business in, the territory of origin; (

e) tiie judgment debtor, being a defendant in die OTiginal court, had an office or place of buskiess in the territory of origin and the proceedmgs were in respect of a ttansaction effected through or at diat office or place; or (

f) die jurisdiction of the original court is otherwise recognized by tiie registering court. 2. Notwitiistanding anything in sub-paragraphs (d), (

e) and (

f) of paragraph (1), the origmal court shaU not be regarded as having jurisdiction if 46

(

a) tiie subject matter of the proceedings was unmovable property outside the territory of origin; or (

b) the bringing of the proceedings in tiie original court was conttary to an agreement under which the dispute in question was to be settied otherwise than by proceedings in the courts of the territory of origin.

PART iV PROCEDURES

ARTICLE VI 1. Any application for tiie registtation in the United Kingdom of a judgment of a court of Canada shall be made (

a) in England and Wales, to tiie High Court of Justice; (

b) in Scotiand, to tiie Court of Session; (

c) in Nortiiem Ireland, to the High Court of Justice. 2. Any application for the registtation in Canada of a judgment of a court of the United Kingdom shall be made (

a) in the case of a judgment relating to a matter within the competence of the Federal Court of Canada, to the Federal Court of Canada; (

b) in die case of any other judgment, to a court of a province or territory designated by Canada pmsuant to

Article XII. 3. The practice and procedme goveming registtation (including notice to tiie judgment debtor and applications to set registtation aside) shaU, except as otherwise provided in this Convention, be govemed by the law of die registering comt. 4. The registering court may requke that an appUcation for registtation be accompanied by (

a) die judgment of the original court or a certkied copy thereof; (

b) a certkied ttanslation of the judgment, k given in a language other than die language of the territory of die registering court; (

c) proof of the notice given to the defendant in die original proceedings, unless this appears from die judgment; and 47

(

d) particulars of such otiier matters as may be requked by tiie mles of the registering court.

ARTICLE VII All matters conceming (

a) the conversion of the sum payable under a registered judgment into the currency of die territory of the registering court; and (

b) die interest payable on tiie judgment with respect to die period foUowing its registtation, shaU be determined by the law of the registering court. PARTV RECOGNITION OF JUDGMENTS

ARTICLE VIII Any judgment given by a court of one Conttacting State for die payment of a sum of money which could be registered under diis Convention, whether or not the judgment has been registered, and any other judgment given by such a court, which if it were a judgment for die payment of a sum of money could be registered under diis Convention, shall, unless registtation has been or would be refused or set aside on any ground other than that the judgment has been satisfied or could not be enforced in the territory of origin, be recognized in a court of the otiier Conttacting State as conclusive between the parties thereto in all proceedings founded on the same cause of action.

PART VI RECOGNITION AND ENFORCEMENT OF THIRD STATE JUDGMENTS

ARTICLE IX 1. The United Kingdom undertakes, in the ckcumstances permitted by

Article 59 of tiie 1968 Convention, not to recognize or enforce under that Convention any judgment given in a tiikd State which is a Party to that Convention against a person domiciled or habituaUy resident in Canada. 2. For the purposes of paragraph (1) 48

(

a) an individual shaU be tteated as domiciled in Canada if and only k he is resident in Canada and die natme and ckcumstances of his residence indicate that he has a substantial connection witii Canada; and (

b) a corporation or association shall be tteated as domiciled in Canada if and only k it is incorporated or formed under a law in force in Canada and has a registered office there, or its centtal management and conttol is exercised in Canada.

PART VII FINAL PROVISIONS

ARTICLE X This Convention shaU not affect any conventions, intemational instinments or reciprocal arrangements to which both Contracting States are or will be parties and which, in relation to particular matters, govern the recognition or enforcement of judgments.

ARTICLE XI Eitiier Conttacting State may, on the exchange of instinments of ratification or at any time tiiereafter, declare that it will not apply the Convention to a judgment that imposes a UabiUty which that State is under a tteaty obligation toward any other State not to recognize or enforce. Any such declaration shall specky the tteaty containing the obUgation.

ARTICLE XII 1. On the exchange of instinments of ratification, Canada shall designate the provinces or territories to which this Convention shall extend and the courts of tiie provinces and territories concemed to which application for tiie registtation of a judgment given by a court of the United Kingdom may be made. 2. The designation by Canada may be modified by a further designation given at any time thereafter. 3. Any designation shaU take effect tiiree montiis after the date on which it is given.

ARTICLE XIII 1. The United Kingdom may at any time while this Convention is in force declare that this Convention shall extend to tiie Isle of Man, any of tiie Channel Islands, Gibraltar or tiie Sovereign Base 49

Areas of Akrotiri and DhekeUa (being territories to which the 1968 Convention may be appUed pmsuant to

Article 60 of diat Convention). 2. Any declaration pmsuant to paragraph (1) shall specky tiie courts of the territories to which appUcation for tiie registtation of a judgment given by a court of Canada shaU be made. 3. Any declaration made by the United Kingdom pursuant to tiiis

Article may be modkied by a further declaration given at any time tiiereafter. 4. Any declaration pmsuant to tiiis

Article shaU take effect tiiree months after the date on which it is given.

ARTICLE XIV 1. This Convention shaU be ratkied; instinments of ratification shaU be exchanged at London. 2. This Convention shaU enter into force three months after die date on which instinments of ratification are exchanged. 3. This Convention may be terminated by notice in writing by either Conttacting State and it shall terminate three months after the date of such notice. DSf WITNESS WHEREOF, tiie undersigned, being duly autiiorized thereto by thek respective Govemments, have signed this Convention.

DONE in dupUcate at Ottawa this 24th day of April 1984, in the English and French languages, each version being equally authentic. John C. Tait For the Govemment of Canada Pour le Gouvemement du Canada R. H. Baker For the Govemment of the United Kingdom of Great Britain and Northern Ireland Pom le Gouvemement du Royaume-Uni de Grande-Bremgne et d'frlande du Nord 50 Title: 1990 (22nd 2nd) Bill 55, International Conventions Implementation Act