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Published by Manz, Vienna: 1986. Reproduced with their permission.

excerpt from

Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods

Univ. Prof. Dr. Peter Schlechtriem [*]

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Place of Delivery (Article 31)

The provision concerning the place of delivery differentiates between sales involving carriage and other sales. Unless the contract states otherwise, the sale involving carriage is performed by handing the goods over to the first carrier for transmission to the buyer [231] (Article 31). Article 67(1) sentence 1 is the corresponding provision for the transfer of risk in such sales.[232]

The delivery obligation for all other sales contracts - unless otherwise agreed - is fulfilled when the seller places the goods "at the buyer's disposal," [233] which is, for contracts concerning specific goods or those drawn from a specific stock, the place where the goods are located when the contract is formed and, in the case of manufactured goods, the place where they are manufactured or produced (Article 31(b)). Goods afloat are also generally governed by Article 31(b).[234] In other cases, the goods must be available to the buyer at the seller's place of business when the contract is concluded; if the seller has more than one place of business, reference must be made to Article 10. Article 69 is the corresponding provision on the passing of risk.[235]

Alternative provisions about the place of performance are found mostly in Incoterms and similar standard clauses.[236] Proposals to provide directives for interpretation for these clauses found insufficient support at the Conference because the unification of these clauses, which would have necessitated a special UNCITRAL project, was perceived in Vienna as too difficult a task.[237] Any [page 64] difficulties in interpretation in any particular case, however, can be settled on the basis of Article 8.

Placing the goods "at the buyer's disposal" means to make the goods available so that the buyer need do no more than take possession. This includes specification or at least precise identification of the goods, and, in some circumstances, preparation of the goods as required, such as packaging and notification to the buyer. For goods in warehouses, if the claim or directive for delivery is not already embodied in documents, a special order of release from the seller may be necessary.

It is implicit in Article 31 that, for the delivery to be effective, the goods must conform to the contract. ULIS Article 19(1) requires for "delivery" the "handing over of goods which conform with the contract." Deviations from the contract description - where, for example, the goods are inferior or different - are "cured," however, if the buyer fails to notify the seller of defects.[238] This conclusion should apply to CISG as well. The Secretariat's Commentary concerning Article 31 (= Article 29 of the 1978 Draft Convention) [239] differentiates between the delivery of inferior and the delivery of different goods. This interpretation would produce unfortunate consequences for the passing of risk and the failure to notify of defects known in German law and should therefore be rejected.[240] Independent of the extent and kind of non-conformity, a delivery is valid under Article 31 if the buyer does not make timely objection. [page 65]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

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231. The sale of goods afloat, however, is not a sale involving carriage.

232. Cf. infra at VI.D.1.

233. Cf. ULIS Article 19(1) (obligation to hand over goods).

234. Cf. Secretariat's Commentary at 83-84 § 12.

235. See infra at VI.D.3.

236. Cf. Huber 453; Secretariat's Commentary at 82 § 5 et seq.

237. See A/Conf. 97/C.1/SR.7 at 8 § 52 (= O.R. 208) (position taken by the Soviet delegation).

238. Cf. Dölle (Huber) Article 19 § 158-59.

239. See Secretariat's Commentary at 81 § 3.

240. See Huber at 483-84; infra at VI.B.5(a) and (c), B.6(c) and VI.D. These consequences were presumably not seen or even intended by the editors of the Secretariat's Commentary.

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Pace Law School Institute of International Commercial Law - Last updated June 7, 2000
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