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CISG number

Art. 52

307. The text of article 33 as adopted by the Working Group on the International Sale of Goods is as follows:

Article as a whole

308. The Committee considered a proposal to add the following words to paragraph (1):

and the following words to paragraph (2):

309. In support of this proposal, it was stated that the additions to the text would specify the consequences flowing from a decision by the buyer to take delivery or to refuse to take delivery. In particular, it was stated, if the buyer takes early delivery, it is only equitable that he make a correspondingly earlier payment of the purchase price. Further, if the buyer refuses to take delivery, that refusal should only be permitted within a reasonable time after the goods arrive.

310. However, there was considerable opposition to the notion that a buyer who takes early delivery must make a correspondingly early payment of the purchase price. It was stated that early delivery was a breach of contract by the seller and consequently the buyer should not be penalized because he took early delivery of the goods to accommodate the seller. In addition, a rule which compelled early payment would tend to encourage rejection of the goods which was an undesirable result. In any case, the question of change in payment terms should be left to the negotiations between the parties since such negotiations could easily take place at the time the buyer was considering whether to take early delivery of the goods. It was undesirable to restrict the freedom of the parties by requiring, unless otherwise agreed, that early delivery entailed early payment.

311. There was also opposition to the concept of permitting the buyer to refuse to take delivery "within a reasonable time" after delivery or within three months after the risk had passed. It was stated that the existing text of article 33 made it clear that the refusal to take delivery must be made when the goods were tendered to the buyer and there seemed to be no reason to relax this requirement. The proposal also created difficulties since it was difficult to envisage how the buyer who had accepted the goods could refuse to take delivery at a later time.

312. The Committee, after deliberation, did not retain the proposal.

Paragraph (1)

313. The Committee also did not retain, for reasons similar to those outlined in paragraph 311 above, a proposal that the following words be added to paragraph (1):

Decision

314. The Committee concludes that no change of substance is called for in respect of this article. It therefore recommends that the Commission should adopt the following text, now renumbered as article 34: [page 47]

"Article 34

"(1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery.
"(2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate."

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