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CISG number

Art. 58

346. The text of article 39, as approved by the Working Group on the International Sale of Goods, is as follows:

Paragraph (3)

347. The Committee considered a proposal that the words "unless the procedures for delivery or payment agreed upon by the parties are inconsistent with such opportunity" be deleted as they did not add anything to the notion of supremacy of the will of the parties contained in article 5. However, there was no support for this proposal because the procedures agreed upon for delivery of the goods may not deal explicitly with payment of the purchase price yet indicate that payment is to be made prior to examination of the goods. Accordingly, the original provision was considered to serve a useful purpose and was retained by the Committee.

Decision

348. 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 40:

"Article 40

"(1) The buyer must pay the price when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents.
"(2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price.
"(3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity." [page 50]

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