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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 59 [Payment due without request] [1]

[TEXT OF THE UNIFORM LAW]

The buyer must pay the price on the date fixed by or determinable [2] from the contract and this Convention without the need for any request or compliance with any formality [3] on the part of the seller [4].

[COMMENTARY]

      [1.1] The article makes it clear that no simple or even formal reminder is necessary as it is required, at least under certain circumstances, in some countries (examples given by Tallon/Parker, 7-14) to place the buyer in a situation of delay in payment.

      [1.2] Tallon (Parker, 7-14 fol) raised the question whether renunciation of requests, etc. is an expression of a general principle of the Convention and answered it referring to Honnold (160) in that it should be considered as an exception, whereas in general, performance would have to be requested by a special act. We believe that these two should not be alternatives; what matters is whether the obligated party has all the required information regarding the period for delivery. If this is the case, he will have to act accordingly (in particular Art. 33). Only where he does not have it can information be requested as the condition for performance. Since payments under the contract other than that of the price, e.g. reimbursement of auxiliary costs which do not have to be paid together with the price, and payment of sums from claims for breaches of contract, are not fixed by law and often also not by contract with the exactness necessary for payment, a customary and appropriate information will be required as the condition for payment -- if nothing different results from the circumstances.

[2] The determinability under the Convention follows from Article 58 which generally in a more differentiating way again refers to the time of the actual delivery, which itself is characterized by the legal period for delivery (Art. 33) for lack of contractual determination. [page 227]

[3] The term "formality" apparently has a different content in this context than in Article 54 in that measures, which would have to be taken vis-à-vis the authorities, do not fall under it. The seller may be obliged to comply with such formalities in exceptional cases (Art. 54, note 4). Reference to the time for payment shows that formalities in the relationship between commercial partners are named here which had to be arranged for by the creditor.

[4] [issuing an invoice]

      [4.1] It remains open whether the issuing of an invoice can be requested as a prerequisite for the payment. This is doubtlessly the case, in our view, when it is necessary for releasing the goods from customs and probably also when the exact price is to be determined on the basis of agreed conditions which are at first concretely known only to the seller. Therefore, the issuance of an invoice is very often agreed as a condition for payment. But irrespective of the existence of specific conditions, the invoice is in our view, generally a prerequisite for the payment (Honnold, 350; Sevón/Dubrovnik, 218), namely under the established practices of Article 9. Both parties need the invoice for their bookkeeping; often it is also a condition for complying with formalities in regard to the transfer of the money. But specific requirements for an invoice (consular invoices) will have to be agreed in any case.

      [4.2] The buyer is in our opinion entitled under established practices to request a receipt of payment where the latter, like in the case of a bank transfer, is not proven by document, especially in the event of payment in cash. [page 228]

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