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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 53 [General obligations] [1]

[TEXT OF THE UNIFORM LAW]

The buyer must pay the price for the goods [2] and take delivery [3] [4] of them as required by the contract and this Convention.

[WORDS AND PHRASES, CONCEPTS

1. completing the definition of a contract of sale
2. obligations imposed on the buyer
3. cross-reference: article 60
4. obligation to pay the price for the goods and take delivery ]

[COMMENTARY]

[1] [completing the definition of a contract of sale]

      [1.1] This article is to be seen in connection with Article 30 and is to complete the definition of a contract of sale whose existence is an essential condition for invoking the Convention. The obligation to deliver under Article 30 meets its counterpart in Article 53 in the form of the obligation to take delivery. An obligation to hand over documents, as in Article 30, is not included in Article 53. Insofar as documents are concerned which are necessary for taking delivery of the goods, e.g. documents of title, the obligation to take delivery of the goods regularly comprises an obligation to take those documents.

[2] [obligations imposed on the buyer]

This Chapter regulates those obligations which are imposed solely on the buyer, whereas those which apply to both, are the substance of Chapter V.

      [2.1] Compare here Articles 54-59. [page 203]

      [2.2] Since the payment of the price for the goods is expressly mentioned and, as the detailed explanation in Articles 54 fol shows, such payment obviously constitutes an obligation to pay a sum of money. There may be doubt as to whether genuine barter contracts fall under the CISG (Article 1, note 1).

      [2.3] In paying the price for the goods the buyer generally fulfills all his obligations under the contract, including payment for packaging, dispatch, insurance, insofar as these performances are due to him (Kahn, 980 fol), provided there are no practices to the contrary.

[3] [cross-reference: article 60]

Compare here Article 60.

[4] [obligation to pay the price and take delivery ]

      [4.1] The payment of the price and the taking delivery of the goods are the most important obligations of the buyer and are, therefore, considered by some legal systems as being the main obligations. The CISG does not make a distinction between main obligations and auxiliary obligations. Also the legal consequences of a breach of contract do not primarily depend on the role and type of the violated obligation (but see Article 64, paragraph 1, subpara. (b)), but rather on the effects of a breach on another party (Article 25). After all, the latter are often influenced by the weight of the violated obligation, so that a particular stress on these obligations might be an indication of the fact that their breach would be fundamentally to the detriment of the other party.

      [4.2] The obligation to pay the price and the obligation to take delivery of the goods are of a complex nature. They may include a host of individual acts whose specific features are the result of the contract, the Convention, practices and usages together with the concrete circumstances of the contract. Of special importance in this context are codified practices and/or rules for international trade, e.g. Incoterms, the Uniform Rules for Letters of Credit and the Uniform Rules for Collections.

      [4.3] Apart from those mentioned under Article 53, the buyer generally has other obligations. Insofar as they are primary obligations, hence such which in the normal, undisturbed course of a contractual relationship will have to be fulfilled in any case, they are dealt with under the CISG only to a very limited extent. The Convention provides for the other obligations of the buyer only in the event of disturbances of the contract performance. Insofar it views them as reasons for exemption for the seller (generally Article 80, for a specific case Article 42, paragraph 2, subpara. (b) which presupposes that the buyer fulfills his other obligation to provide technical drawings, etc.). [page 204]

The CISG also regulates the legal consequences in the case of breach of the other obligations of the buyer in a general form in Article 61, which refers to all obligations of the buyer and thus forms the basis of all following provisions governing the rights of the seller. Article 62 makes express mention of the other obligations. Article 65 provides for a specific sanction in the case of a specific breach of contract by the buyer.

In the event that the seller commits a breach of his obligations, the CISG provides for the obligation of the buyer under certain conditions to permit a similar, hence late performance and/or late cure of defects as a modification of the original obligation to take delivery (Article 48 -- after the date for delivery, under different conditions also Article 34 and Article 37 -- curing of a lack of conformity up to the date for performance).

Furthermore, obligations and/or responsibilities arise for the buyer, like the obligation to examine the goods and to give notice, if he wants to ascertain his rights from non-conform[ing] delivery (Article 38 fol; Article 43). Of a similar character is the obligation to mitigate losses under Article 77. Finally, special circumstances may give rise to further obligations, a specific category of secondary obligations of both parties and thus also of the buyer. These include obligations to inform the other party (Article 71, paragraph 3; Article 72, paragraph 2; Article 79, paragraph 4) and, in particular circumstances, the obligation to provide assurance of performance of one's own obligations (Article 71, paragraph 3; Article 72, paragraph 2). [page 205]

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Pace Law School Institute of International Commercial Law - Last updated September 25, 2002
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