|Arts. 26, 27|
97. The text of article 10 as adopted by the Working Group on the International Sale of Goods is as follows:
"(1) Notices provided for by this Convention must be made by the means appropriate in the
"(2) A declaration of avoidance of the contract is effective only if notice is given to the other party.
"(3) If a notice of avoidance or any notice required by article 23 is sent by appropriate: means within the required time, the fact that the notice fails to arrive or fails to arrive within such time or that its contents have been inaccurately transmitted does not deprive the sender of the right to rely on the notice."
98. The Committee considered a proposal that the general rule in article 10 be that communications must be received by the addressee. In support of this proposal, it was stated that this "receipt theory" accorded with principles of equity because the sender would always know if he had dispatched a notice. Consequently, if there was no reaction from the addressee he could easily take steps to ensure whether the notice had in fact arrived. In opposition to this proposal, it was pointed out that countries which utilized the "receipt theory" had supporting procedural rules which enabled the theory to work in practice since it was extremely difficult to establish whether a notice had in fact been received by the addressee. But as such procedural rules were not present in countries which utilized the "dispatch theory", it would be necessary to include them in the Convention which would complicate the text of the Convention.
99. After deliberation, the Committee decided not to adopt the "receipt theory" as the basis of article 10. However, it was understood that this decision did not preclude particular provisions from requiring that communications called for by that provision be received.
100. The Committee considered a proposal that paragraph (1) be deleted. In support of this proposal, it was stated that paragraph (1) might be interpreted to mean that the sanction for non-compliance with its provisions is that the notice will be denied effect. However, this result would be unjust if the notice was actually received in time although it had not been sent by the "means appropriate in the circumstances." Furthermore, since the provision was designed to mean that the sender will be deprived of the benefit of article 10(3), which relieves him from transmission hazards, it would be more appropriate to delete the provision and introduce the requirement of appropriate means of transmission directly into article 10(3).
101. After noting the concern of an observer that it may be difficult for a judge to determine whether particular means of transmission were "appropriate", the Committee retained the proposal to delete paragraph (1) and to introduce the requirement of appropriate means of transmission directly in article 10(3).
102. The Committee considered proposals that the declaration of avoidance must be made by written notice to the other party or, alternatively, be immediately followed by written notice. The Committee decided to consider these proposals in connexion with article 11. The Special Drafting Group created in respect of article 11 did not retain these proposals and, therefore, the present text of paragraph (2) was retained.
103. However, the Committee referred the provision to the Drafting Group for reformulation to make it clear that prior notice of a declaration of avoidance is not required.
104. The Committee considered a proposal that paragraph (3) be replaced by the following text:
"If any notice, request or communication provided for by this Convention is sent by means appropriate in the circumstances within the requested time, the fact that the notice fails to arrive or fails to arrive within such time or that its contents have been inaccurately transmitted does not deprive the sender of the right to rely on the notice."
105. In support of this proposal, it was stated that since the Convention required a large number of communications there should be a general provision which deals with questions of their transmission to the addressee. It was pointed out that the proposal would ensure errors in transmission or lost or delayed transmission would be treated uniformly throughout the Convention. Furthermore, a clear rule governing hazards of transmission was very important since the terminology governing the giving of notices varied considerably throughout the Convention. The present text of paragraph (3) dealt with only two situations which could give the impression that the varying terminology used throughout the Convention implied varying rules concerning whether communications must be received or merely sent. In addition, it was stated that the provision proposed in paragraph 104 above could easily be amended so as to exclude any communications for which a different rule was considered to be more appropriate.
106. There was general support for the proposal that the risk of transmission of lost or delayed notices, or errors in transmission, be governed by one article. However, it was also agreed that adoption of such a provision should be subject to any contrary provisions in the existing text or to any future contrary provisions which might be formulated during the course of the present session.
107. The Committee, after deliberation, tentatively retained this proposal by placing it within square brackets. After having examined the other provisions of the Convention, the Committee adopted the tentatively retained text with the addition of a phrase indicating that some articles contained a different rule. The Drafting Group was requested to use appropriate language which clearly indicated the reversal of the general rule established by paragraph (3) in each article that made communications effective only on receipt.
108. The Committee also considered a proposal that paragraph (3) apply to all communications required by the Convention except communications under articles 28, 29(2), 29(3), 44, 46 and 47(3).
109. In support of this proposal, it was stated that the rule in paragraph (3) was appropriate to most, but not all, communications required by the Convention. In particular, article 46 and the second sentence of article 47(3) expressly provided for the receipt of notices. In addition, it was noted that it appears inappropriate to extend the benefit of paragraph (3) to a defaulting party's request for an additional period of time to perform, or to cure defects, pursuant to articles 29(2) and (3). The provision was also suggested to be inappropriate to articles 28 and 44.
110. In opposition to the proposal, it was argued that it would be preferable to adopt a general rule and to decide, on specific exceptions when later articles were being considered.
111. After deliberation, the Committee did not retain the proposal to specifically exclude, at this stage, articles 28, 29(2), 29(3), 44, 46 and 47(3) from the operation of article 10(3). [page 32]
112. The view was expressed that the article should be operative only if the addressee had no reason to know, or foresee, the error in transmission or the failure of the notice to arrive or arrive on time. There was, however, no support for this proposal.
113. The Committee further considered a proposal that paragraph (3) be limited to cases where the sender repeated the communication within a period of three months. It was stated that this would balance the rights and obligations of the contracting parties in cases where there had been lost or delayed communications or errors in transmission. The Committee did not retain this proposal for want of support.
114. The Committee accepted a recommendation of the Drafting Group that paragraphs (2) and (3) of article 10 be contained in separate articles with paragraph (2) now renumbered as article 9 and paragraph (3) as article 10. The Committee therefore recommends that the Commission should adopt the following text:
"A declaration of avoidance of the contract is only if made by notice to the other party."
"Unless otherwise expressly provided in this Convention, if any notice, request or other communication is given by a party in accordance with this Convention 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." [page 33]
[...]Go to entire text of Report of the 1977 UNCITRAL Committee of the Whole I relating to draft Convention on International Sale of Goods