Article 34 [Handing over of documents]
[TEXT OF THE UNIFORM LAW]
If the seller is bound to hand over documents relating to the goods [2], he must hand them over at the time and place [3] and in the form [4] required [1] by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity [5] in the documents [6], if the exercise of this right does not cause the buyer unreasonable inconvenience [7] or unreasonable expense [8]. However, the buyer retains any right to claim [9] damages as provided for in this Convention.
[WORDS AND PHRASES, CONCEPTS
1. as required by contract
2. documents to be handed over
3. seller must hand over the documents at the time and place required
4. - and in the form required
5. up to delivery time required seller may cure any lack of conformity, except that …
6. lack of conformity in documents
7. except if exercise of seller's right to cure causes buyer unreasonable inconvenience
8. - or unreasonable expense
9. buyer's right to claim damages : cross reference ]
[COMMENTARY]
[1] [as required by contract]
It has to follow from the contract (or from usages or practices, Article 9), which documents the seller has to hand
over to the buyer. The same applies to the kind of documents and the modalities of the transfer. Lando (BB, 267)
refers in this context to the requirements of good faith.
[2] [documents to be handed over]
Such documents are in the first place documents of title (bills of lading, warehouse receipts etc.) which are handed
over in the place of the goods and allow the buyer to have disposal over the goods (Honnold, 246). Which
documents are to be handed over can mostly be seen from the trade terms agreed (c. Article 31, note 1). [page 137]
In fulfilling the contract the goods, in most cases, are not handed over to the buyer directly, but the seller transfers
the goods to a carrier who, after having carried them, hands them over to the buyer. Regularly, the carrier takes
charge of the goods against receipt, i.e. an acknowledgement of receipt which has a different form and a different
content depending on the means of transportation. While simple documents of transport - a duplicate of the waybill
in the case of railways (Handbuch 3, 235 fol), the dispatch copy of the waybill in international air traffic (Handbuch
3, 284 fol) and in freight traffic by land (Handbuch 3, 265 fol) - only confirm that the goods were taken over for
transport purposes and the seller has fulfilled his obligation of delivery, other documents are issued as documents of
title which take the place of the goods in relation to the transfer of title, e.g. the bills of lading in transport by sea
(Handbuch 3, 178 fol) and the bills of lading in inland navigation (Handbuch 3, 297 fol). The goods are handed over
to the addressee only against return of the documents of title. (Concerning the documents of title, compare also R.
Richter.) The INCOTERMS contain detailed provisions with respect to the procurement, tender and transfer of the
required documents.
In the case of the trade term "Free Carrier" it is for instance a railway consignment note; in that of "FAS", it is a quay
receipt or receipt for the bill of lading; of "FOB", it is the mate's receipt; of "CFR" and "CIF", the on-board bill of
lading; of "ex ship" a bill of lading or a delivery order; of "DEQ", a delivery order; and of "DAF", the usual transport
document and/or a docking or warehouse certificate (Handbuch 3, 366) or a delivery note etc. As to the bills of
lading the INCOTERMS demand that they be "clean". This means that the documents of title in the goods must not
contain any additional remarks which indicate that the status of the goods or their wrapping are insufficient.
The documents to be handed over may, however, be insurance certificates, invoices, certificates of origin,
certificates of control etc. And finally, technical documentation may be required, if it is not the object of the contract
itself, which refers to the goods. Loewe (55) mentions as examples the model certificate of a vehicle or a mere
manual for operation.
[3] [seller must hand over the documents at the time and place required]
This can be the place of delivery, but also any place that deviates from the former. As far as documents relating
to the goods are concerned, a transfer may be envisaged through the banks involved, depending on the terms of
payment. If the contract mentions nothing about date and place, the principle of good faith will probably require
the seller to hand over the documents to the buyer in such a way that [page 138] the latter can take over the
goods from the carrier when they arrive and bring them through customs (Lando/BB, 266).
[4] [ - and in the form required]
That form includes the number of copies, the language and probably the kind of duplication used (e.g. printed,
written, photocopied).
[5] [up to delivery time required seller may cure any lack of conformity, except that … ]
The lack of conformity may relate to both the contents of the documents and their form. It may, for instance, refer
to a situation where the buyer is not in a position to receive the goods. There may, however, also be an insufficient
number of copies, copies in the wrong language, or illegible copies.
The rule concerning the curing of such a lack of conformity of the documents was adopted according to a Canadian
proposal (O.R., 106) and corresponds with Article 37 relating to material defects.
The right to remedy a lack of conformity exists only until the moment the documents should be delivered, hence
requires their early delivery. Once the period of delivery is over, the seller can no longer remedy defects under Article
34 but only pursuant to Article 48.
[6] [lack of conformity in documents]
It will be up to the seller to remedy a lack of conformity of the goods. He may do so, for instance, through
exchanging, correcting, or amending the documents.
[7] [except if exercise of seller's right to cure causes buyer unreasonable inconvenience]
Such inconvenience may occur when, e.g., the buyer has already passed on the documents and cannot obtain
them again.
[8] [ - or unreasonable expense]
The buyer does in no way need to bear those costs; on the contrary, he may demand to be refunded by the seller.
Since a reimbursement may entail a risk, the buyer has the possibility to refuse a curing of deficient documents when
the costs to be incurred are unproportionately high.
[9] [buyer's right to claim damages : cross-reference]
Compare Article 45, paragraph 1 and Article 74 fol. [page 139]
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Pace Law School
Institute of International Commercial Law - Last updated August 9, 2002
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