[2] The buyer has no obligation to take early delivery. If he refuses to take delivery he may, however, have to
assume an obligation under Article 86 to preserve the goods.
The buyer does not have to indicate any reason when refusing the goods, but he could gain little through a refusal
if he has to take the goods later anyway (Honnold, 331).
The option to refuse to take delivery may be restricted by Article 7 (observance of good faith), or Article 9 (practices
and usages).
If the buyer takes possession of the goods for the seller under Article 86, but intends to return them, he has to inform
the seller accordingly (c. Article 27) in order to avoid that his conduct might be interpreted as implied acceptance.
If the buyer takes early delivery, this may constitute a modification of the contract in regard to the period for
performance (c. Article 29). In such a case the buyer will also have to perform his obligations at an earlier date (O.R.
44). If he is not ready yet to receive the goods, e.g. in regard to the examination of the goods as required pursuant
to Article 38, he should declare a relevant reservation when taking delivery. According to Schlechtriem (71), the
buyer is not obligated to examine the goods prior to the contractual date for delivery. [page 200]
Whether or not the taking of an early delivery constitutes a modification of the contract is of importance where the
possibility to claim damages for breach of contract is concerned. Will (BB, 381) holds that the claiming of damages
does not require making a reservation when taking the goods. We believe, however, that a buyer should never
renounce a reservation if he wants to avoid the impression that the contract has been modified.
[3] The seller may be tempted to do so when prices fall (Honnold, 332). The buyer is not obligated to take delivery
of the excess quantity, but he has the right to make a choice in this case. This right may, however, be restricted by
the above-mentioned Articles 7 and 9. If the excess in quantity is trivial the buyer must not refuse to take delivery
(Honnold, 332). Several delivery clauses also allow tolerances in quantities.
[4] In the event of a refusal to take delivery, the obligation to preserve the goods (Article 86) is to be taken account
of. There is no time limit for refusing to take delivery, but the goods are considered received when no notice is given
pursuant to Article 39 (Will/BB, 381). Also when he has given notice and refused to take delivery of the excess
quantity, the buyer must accept the quantity agreed in the contract. Only when it is impossible to take delivery of the
agreed quantity, e.g. because a bill of lading has been made out for the entire quantity, and if there is a fundamental
breach of contract, can the buyer refuse to take delivery of the goods in their entirety (Honnold, 332; Schlechtriem,
71; Will/BB, 381).
If the buyer accepts the excess quantity, or if he fails to give the relevant notice, he has to pay for the goods delivered
in excess.
[5] Insofar as the acceptance does not constitute a contractual modification, there is a breach of contract which
entails the right to claim damages (c. Article 45, paragraph 1, subpara. (b)). The damage caused may be in the form
of additional costs for storage, as in the case of an intended later resale (O.R., 44).
[6] The goods delivered and accepted are to be paid at the contractual rate, and not at the market rate at the time
of delivery (as under the rule of reduction, Article 50).
Therefore, the buyer will probably take delivery if the price of the goods has risen in the meantime and refuse to take
delivery, and/or negotiate a lower price with the seller, if the price has fallen. [page 201]
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Pace Law School
Institute of International Commercial Law - Last updated August 14, 2002
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