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Article 33 [Time of delivery]

The seller must deliver [7] the goods:

(a) if a date is fixed by or determinable [1] from the contract, on that date [6];
(b) if a period of time is fixed by or determinable [1] from the contract, at any time within that period [2] unless circumstances indicate that the buyer is to choose [3] a date; or
(c) in any other case, within a reasonable time [4] after the conclusion of the contract [5].

[WORDS AND PHRASES, CONCEPTS

[COMMENTARY]

[1] [date for delivery fixed or determinable]

Usually the parties will agree on a time of delivery in the contract. The time of delivery may, however, be deduced from usages or established practices (c. Article 9). The time can be determined by choosing a date or in any other way by the calendar (two weeks after Easter), or by referring to a definite event (one week after first open water) (Lando/BB, 263). The time of delivery can also be fixed in relation to the latest of several events, e.g. as in clause 7.1. of the General Conditions for the Supply of Plant and Machinery for Export No. 188/574 of the Economic Commission for Europe (concerning the character of the ECE conditions compare Handbuch 2, 90 fol) which list: the date of the formation of the contract as defined in clause 2, the date on which the seller receives notice of the issue of a valid import license where such is necessary for the execution of the contract, and the date of the receipt by the seller of such payment in advance of manufacture as is stipulated in the contract (c. Handbuch 2, first edition, Berlin 1974, p. 422).

[2] [the agreed time for delivery]

If July is the agreed time of delivery, the seller may deliver on the first but also on the thirty-first of July. Agreement on a period of time for delivery often gives the seller the required flexibility to prepare the goods for delivery and arrange for their transport. Should the parties have agreed a period of first to fourth quarter of a year, it should be assumed that the same quantity of the goods is to be delivered in every quarter.

[3] [unless circumstances indicated that the buyer is to choose a [delivery] date]

This will be the case, in particular, when the buyer himself arranges for the transport or when he, for other reasons, e.g. limited capacity of his warehouse, has to be interested in fixing an exact date for receipt of the goods. The buyer will have to choose the date if, for instance, the delivery clause "FOB" is agreed. Also in the cases mentioned under Article 31, (b) and (c), where the buyer has to receive the goods, he himself chooses the date. The seller can, in those instances, not place the goods at the disposal of the buyer only on the last day of the period for delivery (Lando/BB, 263).

In these instances, the buyer has to provide the seller in time with the necessary shipping instructions for dispatch and/or calls. It would, however, be thinkable that the seller in such events had the right to choose the date when he provides the goods within the period agreed, that he must inform the buyer accordingly, and that then the latter must receive the goods within a reasonable period. [page 136]

[4] [within a reasonable time]

Subpara. (c) is applied if ''as soon as possible" has been agreed or if the delivery is tied to the occurrence of an unspecified event (c. Lando/BB, 263). What is in each individual case considered as appropriate depends on the circumstances.

[5] [within a reasonable time after the conclusion of the contract]

The date of the conclusion of the contract is provided for under Article 23.

[6] [impact of date of delivery]

The date of delivery may be so essential to the buyer that non-compliance with it may constitute a fundamental breach of contract. This is so in the case of fixed-time contracts. If the seller delivers before the date fixed, the rights of the buyer follow from Article 52, paragraph 1.

[7] [seller must deliver the goods]

This does not apply where the seller, in exceptional cases, has the right to retain the goods (c. Article 71). [page 137]

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