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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 52 [Early delivery; delivery of excess quantity]

[TEXT OF THE UNIFORM LAW]

(1) If the seller delivers the goods before the date fixed [1], the buyer may take delivery or refuse [2] to take delivery.

(2) If the seller delivers a quantity of goods greater than that provided for in the contract [3], the buyer may take delivery or refuse [4] to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity [5], he must pay for it at the contract rate [6].

[COMMENTARY]

[1] The date fixed follows from Article 33. An interpretation of the contract is needed if, for instance, "not later than ..." is stipulated in the contract (Honnold, 331).

[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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