Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 373-376. Reproduced with permission of the publisher, Kluwer Law International, The Hague.
§341 Article 53, in opening this chapter on the obligations of the buyer (§322), stated that the buyer must "take delivery" of the goods.
"The buyer’s obligation to take delivery consists:
(a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and
(b) in taking over the goods."
§341.1 A. Supplying and Receiving Goods: Correlative Contractual Obligations
As we have seen (§210 supra) many of the rules of ULIS (1964) turned on an artificial concept (délivrance) which defied adequate translation and, because of its complexity, led to unintended and impractical consequences. At an early session UNCITRAL decided to replace this approach with rules that addressed the parties’ contractual obligations with respect to the specific problem at hand. For example, Article 31 (§§207-211 supra) speaks of the seller’s "obligation to deliver" and one will note that Article 60 similarly speaks of the buyer’s "obligation to take delivery". We can now examine the application of this contractual approach to the commercial process of supplying and receiving goods.
Sales contracts normally call upon the seller to take the initiative in procuring or manufacturing goods and in placing them at the buyer’s disposition (§340, supra). Usually the contract states what the seller should do to make the goods available to the buyer; if not, Article 31 in three detailed [page 373] paragraphs fills the gaps. The brevity of Article 60 results from the fact that the buyer’s obligation to take the goods does not arise until the seller makes the goods available.
Under Article 58 (§339.1, supra) we examined contractual arrangements for documentary transfers in which the seller performs its "obligation to deliver" (Art. 31) concurrently with the buyer’s obligation to "take delivery". However, in other settings the parties’ contractual duties arise at different times. When "the contract of sale involves carriage of the goods" Article 31(a) states that the seller’s "obligation to deliver consists...in handing the goods over to the first carrier"; in this setting the buyer’s "obligation to take delivery" can not arise until after the goods reach their destination. When the contract does not call for transport the seller’s obligation consists (Art. 31(b)) in "placing the goods at the buyer’s disposal" at specified places; however, the buyer’s obligation to "take over" the goods (Art. 60(a)) need not be performed until the expiration of an agreed or reasonable time to collect the goods (cf. Art. 33). Similarly, in these situations risk of loss does not pass to the buyer until (Art. 69(1), §§373-377 infra) the buyer actually "takes over" the goods or, at the latest, "from the time the goods are placed at his disposal and he commits a breach of contract by failing to take delivery."
In short, the Convention does not attempt to define an abstract concept of "delivery" (délivrance). Instead, Article 60 asks this question: Has the buyer broken his contractual obligation to "take over" the goods?
If the answer is Yes, the legal consequences of breach of this and other obligations of the buyer are set forth in Section II (Arts. 61–65; §§344-357, infra).
§342 B. Cooperation With the Seller
Paragraph (a) provides yet another instance of the Convention’s recognition of the importance of cooperation in carrying out the interlocking steps of an international sales transaction. Action by the buyer that "could reasonably be expected...to enable the seller to make "delivery" might include designation of the precise place to which the seller [page 374] should send the goods, having personnel on hand to receive the goods, making the arrangements for carriage required under trade terms such as Incoterms (1990) "F.O.B." (B-3) and "Free Carrier" ("FCA") (B-3), and other aspects of cooperation that are too detailed for listing in the Convention.
Article 60(a)’s statement that the above "enabling" steps are part of the buyer’s "obligation to take delivery" broadens the seller’s right under Article 64(1)(b) to avoid the contract. The interlocking relationship between these provisions can be seen clearly in the setting of Article 64, infra at §§353-356. For now it must suffice to note that if the seller gives the buyer a Nachfrist notice (Art. 63(1)) that fixes an additional reasonable period for performing the "enabling" steps described in Article 60(a) and the buyer fails to comply, the seller may avoid the contract based on the buyer’s failure to perform this aspect of the buyer’s "obligation to take delivery". The significant point is that, by qualifying for avoidance under Article 64(1)(b), the seller need not show that the buyer’s breach was "fundamental" (Art. 25).
§343 C. Taking Delivery
The seller’s primary interest is to receive the price for the goods (Arts. 54–59, supra) but the buyer’s obligation to take delivery, expressed in Article 60(b), is not without significance. When the seller makes the contract with the carrier (Art. 32(2)) the seller will be interested in the buyer’s prompt removal of the goods from the carrier’s possession, for the seller may be liable to the carrier for freight and demurrage if the buyer fails to pay.
Delay in taking over the goods may also have significant consequences when the goods are lost or damaged during the period of delay. See Ch. IV, Arts. 66–70, infra. When the contract does not involve carriage, risk normally passes to the buyer when he "takes over the goods" (Art. 69) but the risk may shift when the buyer "commits a breach of contract by failing to take delivery." Under the present Article (Art. 60) the buyer’s failure to perform its obligations with respect to "taking over the [page 375] goods" is a breach of contract and thus invokes the above rule making this buyer responsible for casualty to the goods, and also may provide a ground for the seller to avoid the contract (Arts. 63 & 64, infra at §§350, 353). However, the buyer’s liability for casualty to the goods may be reduced by the seller’s responsibility under Article 85 (§454, infra) to take reasonable steps to preserve the goods and, under some circumstances, to sell them for the buyer’s account (Art. 88(2) §457 infra).[page 376]
FOOTNOTES: Chapter on Article 60
1. This Article is the same as Art. 56 of the 1978 Draft. Cf ULIS 65.
2. See the discussion under Art. 54 supra, and Arts. 19(2), 21(2), 32, 48(2), 58(3), 60(a), 65, 71, 73(2), 79(4) and 85–88. These many instances suggest that providing needed cooperation is one of the "general principles on which [the Convention] is based". See Art. 7(2), supra at §100.
3. Article 54 (§323, supra) similarly provides that the buyer’s obligation "to pay the price" includes steps to "enable payment to be made", with similar broadening of the seller’s right, following a Nachfrist notice, to avoid the contract under Article 64(1)(b).