Cite as Farnsworth, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 201-204. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
E. Allan Farnsworth
1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision
For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention «reaches» the addressee when it is made orally to him or delivered by any other means, to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.
1. History of the provision.
1.1. - Seven rules in Part II of the Convention provide that a communication becomes effective when it «reaches» the addressee. See Article 15(1) (offer), Article 15(2) (withdrawal of offer), Article 16(1) (revocation of offer), Article 17 (rejection), Article 18(2) (acceptance), Article 20(1) (instantaneous communication fixing period for acceptance), Article 22 (withdrawal of acceptance). Article 24 fixes the time when a communication «reaches» the addressee for the purpose of these rules.
1.2. - Article 24 began as Article 12(1) of ULFC, which read:
This provision was refined by the Working Group, on the basis of a Secretariat draft, so that communication had to be «made orally or delivered by any other means to him, his place of business, mailing address or habitual residence» (see Yearbook, VIII (1977), 86). This change provided for oral communications. It also followed the example of Article 2(1) of the UNCITRAL Arbitration Rules, in setting out the various addresses to which the communication might be sent. The Working Group later decided [page 201] that the sender should be required to send the communication to the addressee's place of business or mailing address and that only if there were no place of business or mailing address could the communication be sent to his habitual residence (see Yearbook, IX (1978), 82). At the same meeting, the Working Group decided to substitute the word «reaches» for the words «communicated to», wherever those words appeared. No further changes of substance were made (see Yearbook, IX (1978), 37; (Official Records, II, 98).
1.3. - Article 12(2) of ULFC, which provided that communications «shall be made by the means usual in the circumstances» was not retained. It would have been inconsistent with the language «orally ... or ... by any other means» in Article 24 (see Yearbook, VIII (1977), 103). The provision that communications may be made orally was, however, made subject to the reservation permitted by Article 96.
2. Meaning and purpose of the provision.
2.1. - Article 24 implements the «receipt» rule, which is used generally in Part II of the Convention. Since a communication such as an offer or an acceptance becomes effective when it «reaches» the addressee, it is important to indicate with precision when that event takes place. Article 24 does this, subject to the power of the parties to provide otherwise under Article 6.
2.2. - If the communication is made orally, it must be made to the addressee. It may, of course, be made to an agent who is authorized by the addressee to receive it, and in that case questions as to the requisite authority would be resolved by the applicable national law.
2.3. - If the communication is not made orally, it may be delivered either to the addressee personally or to his place of business or his mailing address. Only if he does not have a place of business or mailing address may it be delivered to his habitual residence. Again, it may be delivered to an agent who is authorized by the addressee to receive it, and in that case [page 202] questions as to the requisite authority would be resolved by the applicable national law.
2.4. - There are two views on when a communication has «reached» a party, one taking the time when it is delivered at the recipient's address and the other the time when it actually comes to his attention. Although the latter has appeal in the context of consensual transactions, the former is more practical in application because of the greater ease of proof. The Convention adopts the former view. In order for a communication to «reach» the addressee, it need not come to his personal attention. It is enough that it be placed in the mailbox or other place set aside for delivery of communication so that it be handed to an employee authorized to take delivery. It would not, however, be enough if the communication were left on the addressee's doorstep or in some other unattended place or if it were given to an unauthorized person (see HONNOLD, Uniform Law, 206). In that event, it would not reach the addressee unless, for example, it subsequently came to his personal attention.
3. Problems concerning the provision.
3.1. - One important question raised by Article 24 relates to its scope. Although Part III of the Convention generally uses the «dispatch» rule to govern the effectiveness of notices and other communications several articles in Part III contain exceptions under which communications are not effective until received (see Article 47(2) (notice by seller that he will not perform within period fixed by buyer); Article 48(4) (request by seller that buyer make known whether he will accept performance; notice by seller that he will perform within specified period); Article 63(2) (notice by buyer that he will not perform within period fixed by seller); Article 65(1) (2) (request by seller that buyer make specification; indication by seller of details on his specification); and Article 79(4) (notice of impediment and its effect on ability to perform)). Since Article 24 is expressly limited to «the purposes of this Part of the Convention», it does not literally apply to such articles. However, the reasoning that underlies Article 24 is equally applicable to those articles. Furthermore, the analogy [page 203] between the time when a communication «reaches» an addressee under Part II and the time when there is «receipt» of a communication under Part III is striking. These reasons justify extension of the principle of Article 24 to Part III (see HONNOLD, Uniform Law, 207).
3.2. - Problems of proof may arise under Article 24 since it may not be an easy matter to show, for example, the precise time that a communication was deposited in the addressee's mailbox. Further practical problems may also arise if the communication is delivered, say, at the addressee's place of business during a period when it was not open for business. Such problems must be dealt with on a case-by-case basis, under the forum's rules relating to proof. For a suggestion that the «good faith» provision of Article 7(1) may play a role in the resolution of such problems, see EÖRSI, Problems, 311; 314-315. [page 204]