Go to Database Directory || Go to Bibliography


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 32 [Obligations in respect of carriage of goods]

[TEXT OF THE UNIFORM LAW]

(1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier [1] and if the goods are not clearly identified [3] to the contract by markings [2] on the goods, by shipping documents or otherwise, the seller must give the buyer notice [4] of the consignment specifying the goods.

(2) If the seller is bound to arrange [5] for carriage of the goods, he must make such contracts as are necessary [8] for carriage to the place fixed by means of transportation [6] appropriate in the circumstances and according to the usual terms [7] for such transportation.

(3) If the seller is not bound [9] to effect insurance in respect of the carriage of the goods, he must, at the buyer's request [10], provide [11] him with all available information necessary to enable him to effect such insurance.

[WORDS AND PHRASES, CONCEPTS

1. carrier : cross-reference
2. identified to the contract by markings
3. obligation to give notice of dispatch: dependent on whether goods identified to the contract
4. rules for giving the buyer notice of dispatch
5. taking charge of carriage of the goods
6. transportation : circumstances to take into account
7. appropriate in the circumstances and according to the usual terms
8. must make such contracts as are necessary
9. obligation to effect insurance
10. information to be transmitted to the buyer, at the buyer's request or
11. at the buyer's request, seller must provide ... ]

[COMMENTARY]

[1] [carrier : cross-reference]

As to the carrier compare note 4, Article 31.

[2] [identified to the contract by markings]

Under the CISG there is no general obligation to identify or mark the goods. Whenever markings are possible, the seller should, in his own interest, use them to identify the goods (see also Article 67, paragraph 2). [page 133]

[3] [obligation to give notice of dispatch: dependent on whether goods identified to the contract]

The need for a notice of dispatch is made dependent on whether the goods are clearly marked or in any other way identified to the contract. Only if this is not the case, has the seller an obligation to give notice of dispatch.

[4] [rules for giving the buyer notice]

The CISG does not provide rules for when such notice has to be given. In so far as delivery clauses are agreed, the latter frequently contain relevant rules (e.g. FOB A.7. - The seller has to "inform the buyer without delay that the goods were brought on board the vessel"). Even without agreeing to invoke the INCOTERMS, it would seem to follow from the general principles of the CISG (Article 7) that notice must be given within a reasonable, possibly very short time (Lando/BB, 259).

Paragraph 1 is applied irrespective of whether the seller or the buyer contracts a carrier. This is sufficiently provided for by the condition that the goods have to be handed over to a carrier. The CISG does not provide for a notice to the buyer in any other case (Lando/BB, 259).

If the CISG is invoked, the buyer should not forget to commit the seller in the contract to send a notice of dispatch if it is necessary for him to make the required arrangements for taking over the goods, in view of their nature, and the means of transportation.

The obligation to give notice is a supplementary obligation of the seller (Lüderitz/Freiburg, 191), its breach having the possible consequence that the risk is not passed (Article 67, paragraph 2), that additional costs arise for the buyer, and the seller is rendered liable in this respect. A breach of the obligation to notify of dispatch may, as an exception, be a fundamental breach of the contract which gives the buyer the right to make the contract void (O.R., 30). Therefore, the obligation to notify of dispatch can in no way be construed as being merely an obligation of the seller in his own interest (as believes Stoll/Freiburg, 260).

[5] [taking charge of carriage of the goods]

Whether the seller has to take charge of the goods' carriage follows from either the contract or commercial practice. (Compare also Article 31, notes 1 and 4.)

[6] [transportation : circumstances to take into account]

As to the circumstances which have to be taken into account, they include the category and quantity of the goods, their packaging, the distance which will have to be covered by transport, the available means of transportation and existing transport routes. [page 134]

In the case of perishable goods, cold storage wagons could be appropriate means of transportation or, depending on the nature of the goods, fast means of transportation like an aircraft or express train.

[7] [appropriate in the circumstances and according to the usual terms]

Here the seller must choose the usual transport routes and avoid unnecessary transshipment or unnecessary unloading (Lando/BB, 259). Some of the trade terms, e.g. CIF, contain duties pertaining to the seller and, if applicable, will supersede the CISG.

The conditions which are considered as customary for transport follow quite often from the binding prescriptions by international conventions (Handbuch, chapter 5, 115 fol).

[8] [must make such contracts as are necessary]

The seller does not himself have to conclude contracts with the carrier; he can so instruct a forwarding agent.

[9] [obligation to effect insurance]

A relevant binding clause may directly be deduced from the contract and/or the delivery clause chosen (e.g. CIF). There is no general obligation for the seller to insure the goods during carriage.

[10] [information to be transmitted to the buyer, at the buyer's request or ]

The seller may, because of commercial practices, have to transmit relevant information to the buyer at his own initiative (O.R., 30; approving Schlechtriem, 54; also Honnold, 244, who wants the obligation of the seller to be largely deduced from general principles). Lüderitz believes that these are the beginnings of an obligation to cooperate.

[11] [at the buyer's request, seller must provide ... ]

A breach of this obligation entails liability (Stoll/Freiburg, 260). [page 135]

Go to Table of Abbreviations || Go to Explanation of Abbreviated Bibliographic References
Go to entire contents of Enderlein & Maskow text


Pace Law School Institute of International Commercial Law - Last updated August 9, 2002
Go to Database Directory || Go to Bibliography
Comments/Contributions