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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 60 [Obligation to take delivery] [1]

[TEXT OF THE UNIFORM LAW]

The buyer's obligation to take delivery [2] consists [3]: (a) in doing all the acts which could reasonably [4] be expected of him [5] in order to enable the seller to make delivery [6]; and (b) in taking over the goods [7].

[WORDS AND PHRASES, CONCEPTS

1. buyer's obligation to take delivery
2. buyer's right to refuse to take delivery
3. essential elements of the obligation to take delivery
4. unusual preparatory acts
5. doing all of the acts which could reasonably be expected
6. to enable the seller to make delivery
7. taking over the goods ]

[COMMENTARY]

[1] [buyer's obligation to take delivery]

      [1.1] This article fleshes out with substance the obligation to take delivery as substantiated by Article 53. [page 228]

      [1.2] Recognition of the goods as conforming to the contract is not required for taking delivery or also specifically for taking over the goods. If the goods are deficient in quality, the buyer will retain his relevant rights after having taken over the goods. Reception or taking possession of the goods does not necessarily constitute a taking over (Article 86).

      [1.3] There is no doubt, in our view, that taking delivery and payment are independent obligations so that payment in general cannot be refused because it is not possible to take delivery of the goods for reasons of exemptions (Hjerner/Lausanne, 143). This can be inferred, insofar as Article 79 is concerned, from the fact that [Article 79] generally does not exempt from performance. But Article 80 will mostly lead to another result.

[2] [buyer's right to refuse to take delivery]

      [2.1] Although the refusal to take delivery is mentioned in the catalogue of the buyer's rights in Article 45 [and] only indirectly or by reference to the special rule of Article 52, we believe that there is under the CISG a right to refuse taking delivery also in other cases which have to be defined more in detail We do not refer here to avoidance of a contract because that would make the obligation to take delivery inapplicable. In favour of a refusal to take delivery speaks not only the express granting of that right under Article 52 for cases of early delivery and delivery of excess quantity (in regard to the quantity delivered in excess), but also the fact that Article 86 presupposes the existence of a right to refusal, and not in reference to Article 52 but generally. A point in favour also being that Article 86 uses a different terminology than Article 52. No difference in substance is, in our view, intended here insofar as the right to refuse taking delivery under Article 52 could at least be conceived as a special case of the right to rejection pursuant to Article 86. We will, however, use the term "right to refuse the taking of delivery". Its existence is substantiated also by the right of the buyer to examine the goods under Article 58, which is regulated in the context of payment, but which, as it seems, implies that not only the payment but also the taking delivery of the goods itself can be refused if certain kinds of non-conformity are noticed.

The exercise of the right to refuse the taking of delivery also corresponds with commercial practice. In the event of a tender of non-conform[ing] goods or documents, the buyer may very well want to retain the contract, even not be entitled to terminate the contract, but at the same time not be interested in taking delivery of the actually tendered goods or documents. When he exercises his right of refusal in this case, he may require the seller to deliver conform[ing] goods as follows from Article 46, paragraph 1 and Article 47, paragraph 1. [page 229]

However, the substance and the limits of the right to refuse the taking of delivery have to be determined in detail according to the system of the buyer's rights under the CISG. We would, therefore, not go quite so far in regard to granting that right as Tercier (Lausanne, 132) has in mind affirming, following the Swiss law, that the goods will have to be offered conform[ing] to the contract in every aspect, otherwise there shall seemingly be a right to refusal. Where the buyer would not assert such a right, he would be considered as having renounced his rights. We believe that these interpretations are inappropriate in all their aspects.

In the event of a late delivery, a refusal to take delivery would not make any sense without a termination of the contract because the time lost could not be made up. By contrast, there is a right to refuse the taking over of the goods where an aliud is delivered.

In the case of a non-conform[ing] delivery, a refusal to take delivery is practically possible only when the lack is discovered before the taking delivery, e.g. in the context of exercising the right to examination under Article 58, paragraph 3. A lack entitles, in our view, [a right] to refusal of the taking delivery if it constitutes a fundamental breach of contract which would also substantiate the right to delivery of substitute goods (Article 46, paragraph 2) because it would be absurd to assume an obligation for the taking delivery of goods which the buyer does not want or have to keep. If, on the contrary, the buyer is entitled to repair pursuant to Article 46, paragraph 3, and if he wants to claim, he has, as we believe, the obligation to take delivery. This is the case at least where the taking of delivery is possible without payment of the price. This interpretation, however, is not unequivocal for the buyer can also declare his willingness to accept after repair and take possession of the goods for some time only (Article 86 applies analogously). This cannot be considered as a breach of contract by the buyer. Where the buyer prefers the third solution, he has in the event of a non-conform[ing] delivery, reduction of the price (Article 50); a refusal to take delivery is irrelevant (different a refusal to pay in the amount of the reduction entitlement).

It has to be proceeded similarly in the case of delivery of goods which are not free from third party rights or claims (Article 41 fol). Where the seller delivers only part of the goods, this is in general no reason for refusing to take delivery in regard to the goods delivered, unless the goods cannot be used for its purpose without the missing part. The same is true if only part of the goods is conform[ing], in regard to the conform[ing] part of the goods. Summarizing, the following rule could be deduced from the CISG in its entirety: The buyer is entitled to refuse the taking of delivery when the goods are tendered in such a way which substantiates a right that is incompatible [page 230] with taking delivery and when he exercises that right at the latest by refusing to take delivery of the goods.

Under the same circumstances, the buyer is entitled to refuse the taking of delivery in regard to the documents where the documents show the respective conditions in respect of the goods. A right to refuse the taking of delivery which would specifically relate to the documents, could only be inferred from the obligation of the seller under Article 43 to hand over the documents, namely in a similar way as this was explained as regards the goods. Banks have very strict requirements in regard to the adequacy of documents where letters of credit are issued (Uniform Customs and Practices for Documentary Credits, Article 16, subpara. (b), Article 25, subpara. (c), Article 26, subparas. (b) and (c)). Documents which are rejected as inadequate may, however, be submitted by the seller for collection. In so doing, he renounces the advantages of a letter of credit. The buyer, in general, could raise the same objections as the bank issuing the letter of credit, but only to the extent to which he does not violate the principle of good faith; hence, only within the scope of the restrictions mentioned above. Rejection of the documents includes a refusal to take delivery of the goods in cases where the goods cannot be accepted without documents.

      [2.2] Where the taking delivery of the goods is refused without entitlement, the seller can invoke the remedies under Article 61 fol. But he must take the measures required under Article 85.

[3] [essential elements of the obligation to take delivery]

The obligation to take delivery consists of two essential elements: the preparatory acts and the taking over itself. Under the CISG, no express distinction is made between obligations and participatory obligations. Anyway, the obligation to take delivery is a genuine obligation of the obligor.

[4] [unusual preparatory acts]

Unusual preparatory acts are thus not considered as reasonable, e.g. procurement of confirmation of the future purpose of the goods which may be needed for obtaining approval, but which was never mentioned until the moment of the contract conclusion. The taking delivery insofar does not necessarily comprise all requisite preparatory acts (Schlechtriem, 75, Note 331).

[5] [doing all of the acts which could reasonably be expected ]

These include not only acts which follow from the contract, the Convention, established practices and usages, but also such which, even though not mentioned, are to be taken by the buyer in accordance with normal commercial conduct and which are customary. [page 231]

[6] [ in order to enable the seller to make delivery]

      [6.1] Depending on the contractual agreements, in particular in regard to the commercial terms, these acts comprise in detail, the giving of Instructions for dispatch, calls for delivery (Huber, 515, generally classifies them as belonging to the obligation to take delivery), information on the means of transportation available, the procurement of import licences (Lüderitz/Freiburg, 192), etc. It follows from the essence of the preparatory acts that they have to be performed before taking delivery, namely so early that the seller, in the orderly course of the transaction, will be in a position to deliver within the period for delivery. Where a period for delivery has been set within which the seller can determine the concrete date of delivery (Article 33, subpara. (b)), the preparatory acts will have to be performed so early that he will be able, under normal circumstances, to deliver already at the beginning of that period. If it is required by the seller that the buyer performs preparatory acts unusually early before the time for delivery, the seller must bring about the relevant agreements.

      [6.2] Although the obligation to take delivery, specifically the obligation to perform preparatory acts, already comprises an important part of the buyer's participatory obligation, it does by far not include all, so that the participatory acts are to be distinguished from the other obligations of the buyer (Article 62). This is of relevance, for instance, because in the event of a breach of the obligation to take delivery, the seller, by setting a Nachfrist (Article 64, paragraph 1, subpara. (b)) which is not honoured, may create a condition for the avoidance of the contract which formally can be easily verified (v. Caemmerer/Dölle, 388). The obligation to take delivery in our view does not comprise, in particular, the obligation to participate in the manufacture of the goods, like supplying technical drawings, recipes, models (Sevón/Dubrovnik, 230, seems to have a different opinion), tools, auxiliary supplies, etc.

[7] [buyer's obligation to take delivery consists in taking over the goods]

      [7.1] The taking over may include the physically taking over of the goods, including rapid unloading of the means of transportation, hence the obligation to unload (Honnold, 353), provision of one's own or someone else's means of transportation, and acceptance of documents where they authorize controlling disposition of the goods. The forms of taking over in practice to an important degree depend on the agreed commercial terms (Maskow/BB, 440).

The time when the obligation to take over the goods emerges in the case where the sales contract includes carriage of the goods (Article 31, subpara. (a)) follows from the actual tender of the goods, provided that it is done in the customary way, hence at the times normally possible and at the respective places (railway station, quay). Where the goods have to be put at the disposal of the buyer (Article [page 232] 31, subparas. (b) and (c)), the obligation to take over the goods emerges a reasonable time after the information on the putting at the buyer's disposal (compare note 3, art. 69; Huber, 516 fol, insofar mentions a time of receipt). Pursuant to Article 79, paragraph 2, the buyer is responsible for the carrier engaged by him.

      [7.2] Further components of the taking over of the goods could be the payment of customs and other duties as well as the procurement of import licences where the seller is not obligated to do so and/or where this is not already a condition for the fulfilment of his obligations by the seller. One and the same act can, therefore, fall either under subpara. (a) or subpara. (b) depending on the terms agreed for delivery.

      [7.3] Also the giving of a receipt when taking delivery must be considered as a part of the obligation to take over the goods. Receipt of the goods often is evidenced in the forms used for the several means of transportation. Where the goods are taken over against the handing out of documents of title, the latter are considered as a receipt. [page 233]

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