The drafting history of art. 46 of the Draft Convention is an unusually good example of the difficulties inherent in the process of preparing a provision which seeks to introduce into all legal systems a concept known only to some. Not only were there the conceptual difficulties suggested above arising out of differences in the domestic legal systems, but mistakes in translation (probably caused in part by these difficulties) exacerbated the problem.
The 1939 Draft Uniform Law on Intentional Sale of Goods (Corporeal Movables) approved by the International Institute for the Unification of Private Law (UNIDROIT)
In the case of partial delivery, art. 32 of the 1939 Draft enabled the buyer to "avoid the contract for the whole, if the delivery of the whole is an essential condition of the contract." Art. 33 went on to provide that "even though the buyer may not be entitled to avoid the whole of the contract, he may avoid it in part, and only pay so much of the price as is proportionate to the value of the part which has been duly delivered to him."
On the other hand, art. 47 of the Draft provided that when the quality of the goods was defective,
"(a) either to avoid the contract and claim damages as provided by Articles 87 to 91, or
"(b) to demand reduction of the price in proportion to the diminution, by the defect, of the value of the goods as of the time of the conclusion of the contract, or
"(c) to demand compensation for the loss caused by the defect according to Article 85."
In consequence, the buyer could reduce the price for delivery of an insufficient quantity (art. 33) or for delivery of defective goods (art. 47(b)). Since the drafters realized that at times it would be difficult to distinguish partial delivery of conforming goods from delivery of goods a portion of which were defective,
This recommendation was carried out in the 1956 Draft.
Whatever difficulties might have been encountered by Common lawyers in understanding the nature of the remedy of price reduction were increased by the unsatisfactory drafting in French. The French version of art. 50(b) of the 1956 Draft provided that the disappointed buyer could:
"(b) réduire le prix d'un montant correspondent à la diminution que, par rapport au prix de vente, le défaut de conformité fait subir à la valeur de la chose appréciée lors de la conclusion du contrat, sans préjudice, s'il y a lieu, des dommages-intérêts prévus à l'article 94."
The text of art. 50(b) was undoubtedly sufficient for most Civil lawyers who understood the mechanism by which the price reduction would be effectuated. It was certainly much clearer in these respects than, e.g., the equivalent provision in the French Civil Code, art. 1644, which provides that in the case of latent defects in the goods
"l'acheteur a le choix de rendre la chose et de se faire restituer le prix, ou de garder la chose et de se faire rendre une partie du prix, telle qu'elle sera arbitrée par experts."
However, the text of art. 50(b) was not clear to those who translated it into English.
This discrepancy between the French and the English versions of art. 50(b) was noted in the written comments submitted by the Federal Republic of Germany on the 1956 Draft.
The Special Commission redrafted art. 50(b) in light of these comments.
Given the fact that the English version of the article on price reduction seemed to say that a sum in the nature of damages was to be deducted from the price, it was not surprising that some Common law delegates to the 1964 Hague Conference were disturbed that the time of calculation of these particular damages differed from that used in the calculation of other damages.
"article 50(b) does not contain an error; the proportional reduction of the price must in fact be calculated on the basis of the value of the goods as of the time of the conclusion of the contract. On the other hand, it should be stressed that in the case provided for in article 50(b), the buyer is entitled to damages, which will be determined on the basis of the actual position."
It is not surprising that this explanation did not resolve the matter, especially in view of the fact that none of the English language versions of the various proposals for the price reduction provision submitted to the Conference correctly set forth the means by which the price was to be reduced.
It is not clear by what mechanism the English version of the price reduction provision was finally translated correctly. The report of the Drafting Committee to the Plenary Session of the Conference contained the incorrect text.
"Where the buyer has neither obtained performance of the contract by the seller nor declared the contract avoided, the buyer may reduce the price in the same proportion as the value of the goods at the time of the conclusion of the contract has been diminished because of their lack of conformity with the contract."
The anticipated 1980 U.N. Diplomatic Conference will probably adopt a final text in all six official languages of the U.N. even though UNCITRAL did not consider the Arabic and Chinese versions.