Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 216-217. Reproduced with permission of the publisher, Kluwer Law International, The Hague.
§ 188 Under Article 26, supra, avoidance of a contract is effected "by notice" and in other settings communications have important consequences. E.g., Arts. 39(1) (notice of lack of conformity) and 43 (notice of right or claim of third party). The present article addresses the problems that arise when a notice is sent but, because of a mishap in transmission, is delayed, garbled or lost.
"Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication."
§189 A. Reasons for the "Dispatch" Principle
In examining the Convention’s rules in Part II (Formation of the Contract) we saw that an offeree’s acceptance was not effective unless it "reached" the offeror within the specified time; this rule placed the risks of transmission on the sender. See Art. 18, supra at §161. The examination of the rules on acceptance in Article 18 indicated that it was a close question whether acceptance should be effective on "dispatch" or on "receipt." Article 27, with which we are now concerned, applies only to the communication of notices made in accordance with Part III since they present problems that are different from communications involved in contract formation (Part II). For instance, a mishap transmitting a buyer’s notice that the goods were defective (Art. 39) could, under the "receipt" approach, deprive the innocent party of "the right to rely" on the lack of conformity,[page 216] and the buyer must pay the seller the full price for defective goods. In this and in similar situations it seemed advisable to provide that the appropriate dispatch of a communication satisfied the notice requirement.
As Professor Schlechtriem has noted (1986 Commentary 61), ULIS 14 and ULF 12(2) provided that communications shall be made "by the means usual in the circumstances", while Article 27 substitutes "appropriate" for "usual"—a change that gives the sender a somewhat wider choice of media. On the effect of an unintelligable oral communication (e.g., by telephone), see id. 62. See: Schlechtriem, Com. (1998) 191–197.
This general rule making notices effective on dispatch is subject to specific exceptions in Articles 47(2), 48(4), 63(2), 65(1) & (2) and 79(4). Nearly all of these provisions involve a communication by a party who is in breach of contract; the "receipt" principle was used so that a mishap in transmission would not add to the burdens of the aggrieved party.
Domestic rules on the effect of a mishap in communication are not uniform and often are unclear, but there is support for the approach of Article 27 of the Convention.[page 217]
FOOTNOTES: Chapter on Article 27
1. This article is substantially the same as Art. 25 of the 1978 Draft. ULIS had no general rule on this point. But see Art. 39(3) ("dispatch" rule for notice of non-conformity of goods). The provision that became Art. 27 was added during UNCITRAL’s 1977 review of the Draft Convention on Sales. UNCITRAL X Annex I paras. 104–114, VIII Yearbook 32–33, Docy. Hist. 325–326. See also VI Yearbook 96 (Report of Secretary-General) paras. 74–75, Docy. Hist. 221.
2. See First Committee Deliberations, O.R. 303, Docy. Hist. 524. Article 24 may be helpful, by analogy, in determining whether a notice has been "received." See §179, supra.
3. (U.S.A.) UCC-2-607(3)(a) requires the buyer to "notify" the seller of breach or "be barred from any remedy." Under UCC 1-201(26) one "notifies" another "by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it." Exceptions from this rule are made by stating duties that arise on "receipt" of a notification—e.g., §2–616. Schlechtriem, 1986 Commentary 61, notes that the "receipt" principle is more widely applicable in German law. But cf. German (F.R.G.) Commercial Code §377(4).