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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 27 [Delay or error in communication] [1]

[TEXT OF THE UNIFORM LAW]

Unless otherwise expressly provided [2] in this Part of the Convention, if any notice, request or other communication [3] is given or made by a party in accordance with this Part [4] and by means appropriate in the circumstances [5], a delay or error [6] in the transmission of the communication or its failure to arrive [7] does not deprive that party of the right to rely on the communication.

[WORDS AND PHRASES, CONCEPTS

1. dispatch principle
2. - exceptions
3. rule applicable to any notice or request or other communication
4. applicable to communications mentioned in Part III and agreed in contract; also a general principle of the Convention
5. means by which the communication may be made
6. communication must be sent correctly
7. good faith or mitigation ]

[COMMENTARY]

[1] [dispatch principle]

      [1.1] The CISG establishes the principle of the theory of dispatch even if it is formulated in a cautious way. This has been interpreted in such a way that a communication becomes effective with dispatch (Date-Bah/BB, 227 fol). But what is this to mean in detail? It becomes rather obvious from the text that one can relate to the communication beginning with the moment of dispatch, even if this expressed in the negative way. Hence, the risk of transport is covered. Decisive is also the date of dispatch where the punctuality of the communication is concerned. Leser (Freiburg, 237 fol) held the view that in regard to the legal consequences and the binding of the party dispatching the communication, receipt should be decisive. This, however, in the event of late or non-receipt of the communication requires an auxiliary construction providing for the coming into effect of those consequences after the expiry of the regular time of handling. For both cases there are hardly any clues in the text. As to the substance, the need for receipt would insofar be welcomed. Besides, an analysis of the individual provisions of the CISG, which provide for reference to the principle of dispatch, has clearly shown that invoking it in its rigorous form leads to inappropriate results (note 10 of Article 65).

      [1.2] In favour of the principle of dispatch it is argued, inter alia, that it offers a largely uniform rule (Secretariat's Commentary, O.R. 27), which is contradicted by the many exemptions provided for (note 2) and also by the fact that it only applies to Part III. If this were not so, a rule for receipt would have been required (ibid), which the CISG offer in Article 24 (for Part III). The theory of dispatch would be useful where a party fulfilled an obligation or required remedy for a loss; not, however, where it served to substantiate an obligation for the other party (O.R., 303). Such foundation, to which also other authors refer (Date-Bah/BB, 230, even though hesitatingly), is not quite true for he who asserts a claim because of a breach of contract thereby substantiates an obligation of the other party. This rule was also not strictly followed (according to Art. 65, paragraph [page 118] 2; it is exactly the notice of the party keeping the contract which has to be received by the other party; see also note 3). Problems arise where the rule is applied to such contractually agreed communications like information on, the possibility to use a right (to participate in carrying out a test). A proposal by the former GDR to restrict the scope of application of Article 27 to notices of a defect was rejected (compare O.R., 100).

[2] [exceptions to the dispatch principle]

Exceptions are contained in Article 47, paragraph 2, and Article 63, paragraph 2, in which receipt of a notice is actually already a condition for the activities of the other party caused by it; Article 48, paragraph 2, Article 65, paragraphs 1 and 2, and Article 79, paragraph 4.

[3] [rule applicable to any notice, request or other communication]

This rule applies to all kinds of communications like notices of a defect (Art. 39, paragraph 1; Art. 43); claims (in particular Part III, Chapter II, Section III); information which entail legal consequences (Art. 32, paragraph 3); determining additional periods for delivery (Art. 47, paragraph 1) and warnings (Art. 72, paragraph 2; Art. 88, paragraph 1).

[4] [applicable to communications mentioned in Part III and agreed
       in the contract; it is also a general principle of the Convention]

      [4.1] This, no doubt, refers to the communications mentioned in this Part, but also those which are agreed in the contract (e.g. notice of defects in guarantee, statement of readiness for dispatch, notice of dispatch). Part III generally relates to the substance of contracts. Furthermore, Article 27 formulates expressis verbis a general principle of the Convention and is, therefore, under Article 7, paragraph 2, to be applied to cases which are not expressly decided. Difficulties may appear, however, in the context of specific cases because the exceptions regulated by the Convention (compare note 2) cannot be reduced to a common denominator.

      [4.2] From the reference to this Part it is also deduced, and rightly so in regard to substance, as we believe, that the communication has to meet the requirements (Date-Bah/BB, 228) fixed in Part III (substantive, formal and according to schedule) in order to cause the expected effect (compare also note 6).

[5] [means by which the communication may be made]

These have to be the means which correspond to the content of the communication in terms of rapidity and reliability. For instance, when choosing the means for communicating such an important decision, as it is the avoidance of a contract, particular care has to be exercised. However, sending a communication twice can only be requested when there is particular uncertainty in transmitting to the receiving party. Special circumstances can exclude specific means, e.g. sending by mail in the event of a strike of mailmen of [page 119] which the sender at least had to be aware. The party sending the communication may choose from among several possible means.

In the event that contractually agreed requirements in regard to the transmission are not met (e.g. telex with confirmation by certified letter), one cannot rely on the communication under Article 27, i.e. not on the telex not received if there was no confirmation, but very well on the latter if it was also not received.

Concerning the comprehensibility of the language compare Article 8, note 3.2. According to Date-Bah (BB, 230) it is irrelevant in this context.

[6] [communication must be sent correctly]

The communication must be sent correctly, i.e. it can only be garbled or distorted in the process of transmission. In that case, the party having dispatched the communication, does not have to rescind but can rely on the actual content of the communication sent. When, for instance, a notice of non-conforming delivery of a replacement part having a specific number is requested, and that number is changed when communicated by telex, so that the other party, in response, sends the wrong replacement part, the latter retains the obligation to send the right one.

[7] [good faith or mitigation]

If, however, the sending party recognizes from the behaviour of the other party that the latter has not received the communication, it should be a matter of good faith (Art. 7) or of mitigating a loss (Art. 77) for the former to draw the attention of the latter to the content of the communication. Otherwise, he would, for instance, no longer have the right to assert accumulating claims for damages. [page 120]

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Pace Law School Institute of International Commercial Law - Last updated August 9, 2002
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