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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 37 [Cure of lack of conformity prior to date for delivery]

[TEXT OF THE UNIFORM LAW]

If the seller has delivered goods before the date [1] for delivery, he may [2], up to that date, deliver any missing part or make up [3] any deficiency in the quantity of the goods delivered, or deliver [4] goods in replacement of any non-conforming goods delivered or remedy [5] any lack of conformity in the goods delivered, provided that the exercise of this right does not cause [6] the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim [7] damages as provided for in this Convention.

[WORDS AND PHRASES, CONCEPTS

1. early delivery
2. possibilities to remedy lack of conformity
3. missing parts / missing quantities
4. goods which do not conform to the contract
5. remedying lack of conformity
6. provided that the exercise of th[e] right [to cure] does not cause the buyer unreasonable inconvenience or unreasonable expense
7. right to claim damages ]

[COMMENTARY]

[1] [early delivery]

Early delivery is either delivery before the date for delivery (c. Article 33, subpara. (a)) or delivery before the period for delivery (c. Article 33, subpara. (b)). The buyer has no obligation to accept a delivery before the date for delivery (c. Article 52, paragraph 1). Therefore, Article 37 presupposes that the buyer has accepted an early delivery without objection or that it was up to the seller to deliver within a period of time which had not yet elapsed.

The seller may remedy any lack of conformity up to the moment fixed (where a period was fixed up to the end of that period). (This was the case under Article 37, ULIS; c. Stumpf/Dölle, 281.) After this time, and/or after a period of time, he may do so under specific circumstances (Article 48). Even if an early delivery was agreed between the parties, i.e. the buyer's agreement with an early delivery constitutes an amendment of the contract, the seller could remedy a lack of conformity only under the provisions of Article 48 (Bianca/BB, 293).

[2] [possibilities to remedy lack of conformity]

Article 37 provides for four possibilities to remedy a lack of conformity, which can occur individually or combined. To exercise this right the seller has to be aware of the lack of conformity with the contract. As far as he does not know of the lack of conformity with the contract, e.g. in the case of deficiencies in the quantity, or was informed accordingly by the carrier, he should receive the relevant information from the buyer. The buyer has the obligation to examine the goods when he receives them (Article 38; compare note 2) and to give notice of it (Article 39). A delivery before the date for delivery will, however, not result in a change of the date of delivery so that the buyer must wait to invoke legal remedies under Article 45 fol (see note 7). If the seller, however, does not exercise his right and if it becomes clear that he will not cure the lack of conformity, Article 72, paragraph 1 may be applied (Honnold, 271). The right of the seller is only restricted by inconveniences and expenses that may be caused to the buyer. It refers even to such serious defects which otherwise would constitute a fundamental breach of contract (Honnold, 271). Problems arise in connection with this right if it can be exercised to the detriment of the buyer. If the buyer has already paid the price and if the goods have to be sent back to the seller to be remedied, the buyer is left with no security. The buyer should, therefore, only have to return the goods for which he already paid if the seller gives a proper guarantee for their restitution (Bianca/BB, 294). [page 152]

Article 37 does not provide for a refusal of the buyer to allow the seller to remedy the lack of conformity. In such case the buyer should lose the right to claim a lack of conformity (Bianca/BB, 294).

[3] [missing parts / missing quantities]

Missing parts (of a larger unit) or a missing quantity (of the same goods) can be delivered until the date for delivery, if need be up to the end of the period for delivery. The right of the seller to deliver any missing part or make up any deficiency in the quantity of the goods may be self-evident and not need special mention. Since fractionated delivery, definitely entails inconveniences for the buyer, for a fractionated delivery generally needs approval, it was recommendable to expressly provide for the right of the seller to complete delivery of missing goods.

[4] [goods which do not conform to the contract]

Goods which do not conform with the contract may have defects in the quality, legal defects, or they could constitute an aliud (c. Article 35, note 5). (Concerning the subsumption of legal defects in the context of lack of conformity with the contract, compare Article 46, note 3.)

If goods are delivered in replacement, the seller, at his own expense, may have the goods he originally delivered returned.

[5] [remedying lack of conformity]

To remedy a lack of conformity relates to touching up (repairing) the goods either after they have been returned to the seller or at the buyer's place (c. note 6). According to Honnold (271 fol) such repair may be imperfect. Repair of goods which are already in the possession and/or are property of the buyer requires extra cooperation by the buyer (Bianca/BB, 292), either sending the goods back to the seller or grant the mechanics of the seller access to the buyer's facilities.

[6] [provided that the exercise of th[e] right [to cure] does not cause the buyer unreasonable inconvenience or unreasonable expense]

It does not matter whether there are inconveniences or not; what counts here is whether they are reasonable. This can only be ascertained in individual cases. An inconvenience that may not be considered as reasonable could, for instance, be caused if a relatively long time were required to repair a machine that is part of an assembly line. Other inconveniences that would not be considered reasonable might occur if the seller wanted to cure a lack of conformity without telling the buyer in advance. While the CISG does not require the seller to notify the buyer of the intention to cure such lack, it may become necessary in order to avoid inconveniences to the buyer (see Honnold, 273).

(In this context and regarding expenses compare Article 34, notes 7 and 8.) [page 153]

[7] [right to claim damages]

The right to claim damages is deduced from Article 45 fol. As to the calculation compare Article 74 fol.

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Pace Law School Institute of International Commercial Law - Last updated August 14, 2002
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