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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 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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