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CISG number

Art. 60

353. The text of article 41, as approved by the Working Group on the International Sale of Goods, is as follows:

Subparagraph (a)

354. The proposal was made that the obligation of the buyer under subparagraph (a) should consist in "not doing acts which would prevent the seller to effect delivery." Support for this proposal was based on the view that the existing text placed too onerous a burden on the buyer. It was noted that the seller must deliver the goods and that all that should be expected of the buyer is that he does not hinder the seller in performing his contractual obligation to deliver. This proposal was not retained since it was generally considered that there were many instances in international trade where active assistance from the buyer would be required to effect delivery e.g., precise delivery instructions or assisting in overcoming local administrative problems which would be exceptionally difficult for a seller, located in a distant country, to deal with.

Subparagraph (b)

355. The Committee considered a proposal that subparagraph (b) should read as follows:

356. The proposal was based on the grounds that it would overcome the deficiency in the present text of not indicating the time when the goods must be taken over by the buyer. It was important to be able to determine this point of time since article 66(2) provided that in certain circumstances "the risk passes to the buyer at the last moment he could have taken over the goods without committing a breach of the contract."

357. However, the Committee did not retain this proposal as it was considered that article 17 defined the time at which the seller must deliver the goods and article 34 already indicated where those goods must be taken over by the buyer, although the proposal added a new alternative criterion of taking over the goods within a reasonable time after those goods were placed at the disposal of the buyer. It was also considered that this added alternative requirement, with its reference to goods being placed at the disposal of the buyer, would be difficult to apply in connexion with documentary sales.

Decision

358. The Committee concludes that no change in substance is called for in respect of this article. It therefore [page 50] recommends that the Commission should adopt the following text, now renumbered as article 42:

"Article 42

"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."

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