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Article 33. Time for Delivery

TEXT OF ARTICLE 33

The seller must deliver the goods:

(a) if a date is fixed by or determinable from the contract, on that date;

(b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or

(c) in any other case, within a reasonable time after the conclusion of the contract.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

33A On date fixed by or determinable from contract

33B Contract provides period of time for delivery (art. 33(c))

33B1 Seller may deliver at any time within period:

33B11 Unless circumstances indicate buyer may choose a date

33C Other cases: reasonable time after contract's conclusion (art. 33(c))


DESCRIPTORS

Delivery


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites nine cases in its Digest of Art. 33 case law:

Germany      4           Italy      1           Switzerland        1
ICC 2 Spain      1 TOTAL:     9

Presented below is a composite list of Art. 33 cases reporting UNCITRAL Digest cases and other Art. 33 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 27 April 1999 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.

Netherlands 29 July 2009 Rechtbank [District Court] Arnhem (___ v. Omnibus Trading B.V.)

Italy 16 February 2009 Tribunale di Forli [District Court] (Cisterns and accessories case) [translation available]
 

United States 25 July 2008 U.S. District Court [Pennsylvania] (Norfolk Southern Railway Company v. Power Source Supply, Inc.)
 

American Arbitration Association 23 October 2007 [Interim Award] (Macromex Srl. v. Globex International Inc.)

Switzerland 25 June 2007 Handelsgericht [Commercial Court] Zürich (Printed materials case) 33A [translation available]
 

Switzerland 19 December 2006 Obergericht [Appellate Court] Zug (Stove case)

Russia 29 September 2006 Arbitration Award 127/2005

China September 2006 CIETAC Arbitration Award [CISG 2006/09] (Apparel case) [translation available]

Switzerland 23 May 2006 Tribunal cantonal [Canton Appellate Court] Valais (Suits case)

Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International)

Russia 13 April 2006 Arbitration Award 105/2005 [translation available]

Russia 7 April 2006 Arbitration Award 20/2005 [translation in process]

United States 4 April 2006 Federal District Court [New Jersey] (Valero Marketing v. Green Oy)

Slovak Republic 27 February 2006 District Court Nitra (L.-K S.r.l. v. N. S.r.l.) [translation available]

China February 2006 CIETAC Arbitration Award [CISG 2006/16] (Fluorite case) [translation available]
 

Belgium 20 September 2005 Rechtbank van Koophandel [Commercial Court] Hasselt (J.M. Smithuis Pre Pain v. Bakkershuis) 33A [translation available]

United States 15 June 2005 Federal District Court [New Jersey] (Valero Marketing v. Greeni Oy)

Russia 24 January 2005 Arbitration Award 68/2004 33A [translation available]
 

Belgium 8 November 2004 Hof van Beroep [Appellate Court] Gent 33A [translation available]

France 26 October 2004 Cour d'appel [Appellate Court] Poitiers 33D [translation available]

Belgium 4 June 2004 Rechtbank van Koophandel [District Court] Kortrijk 33A [translation available]

Germany 28 May 2004 Oberlandesgericht [Appellate Court] Düsseldorf 33A [translation available]

Belgium 26 May 2004 Rechtbank van Koophandel [District Court] Kortrijk

Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 88/03] 33B [translation available]
 

Canada 6 October 2003 Ontario Supreme Court (Diversitel v. Glacier)

Germany 15 September 2003 Oberlandesgericht [Appellate Court] Rostock 33C [translation available]

Russia 25 June 2003 Arbitration Award No. 151/2002 33C [translation available]

Spain 7 June 2003 Audiencia Provincial [Appellate Court] Valencia 33B [translation available]

Switzerland 10 March 2003 Kantonsgericht [District Court] Appenzell Auserrhoden 33C [translation available]
 

Russia 20 December 2002 Arbitration Court [Appellate Court] for the Volgo-Vyatsky Region 33C [translation available]

Belgium 22 May 2002 Rechtbank van Koophandel [District Court] Hasselt 33A

Belgium 15 January 2002 Tribunal de commerce [District Court] Namur 33A [translation available]
 

Germany 21 December 2001 Landgericht [District Court] Hamburg (Natural stones case) [translation available]

Germany 12 November 2001 Oberlandesgericht [Appellate Court] Hamm (Memory module case) 33A [translation available]

Belgium 3 October 2001 Rechtbank van Koophandel [District Court] Kortrijk 33A

Belgium 10 July 2001 Rechtbank van Koophandel [Commercial Court] Oudenaarde (Textile case) 33A [translation available]

China February 2001 CIETAC Arbitration Award [CISG/2001/01] (Equipment, material and services case) [translation available]
 

Switzerland 15 September 2000 Bundesgericht [Federal Supreme Court] [4C.105/2000] 33B [translation available]

Germany 6 April 2000 Landgericht [District Court] München [translation available]

Hungary 2000 Legfelsobb Birosag [Supreme Court] (Mixing machine case) 33A [translation available]
 

ICC August 1999 International Court of Arbitration, Case 9887 [English text]

* Germany 27 April 1999 Oberlandesgericht [Appellate Court] Naumburg 33C [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/15] (Electric heaters case) 33C [translation available]
 

Switzerland 29 June 1998 Tribunal Cantonal [Appellate Court] Valais 33C

* Germany 23 June 1998 Oberlandesgericht [Appellate Court] Hamm [translation available]

* Italy 20 March 1998 Corte di Appello [Appellate Court] Milano[translation available]

* ICC March 1998 International Court of Arbitration, Case 9117 [English text]
 

Spain 3 November 1997 Audiencia Provincial [Appellate Court] Barcelona 33A

* Switzerland 28 October 1997 Tribunal Cantonal [Appellate Court] Valais 33C

China 26 June 1997 CIETAC Arbitration Award [CISG/1997/17] (Monohydrate zinc sulphate case) [translation available]

* Spain 20 June 1997 Audiencia Provincial [Appellate Court] Barcelona 33C [translation available]

Switzerland 20 February 1997 Bezirksgericht [District Court] Saane [translation available]

* ICC January 1997 International Court of Arbitration, Case 8786 [English text]

ICC 23 January 1997 International Court of Arbitration, Case 8611 33C [translation available]
 

Germany 19 April 1996 Landgericht [District Court] Aachen

* Germany 27 March 1996 Landgericht [District Court] Oldenburg (Clothes case) 33A [translation available]
 

Germany 24 May 1995 Oberlandesgericht [Appellate Court] Celle [translation available]

China 18 April 1995 CIETAC Arbitration Award [CISG/1995/06] (Clothes case) 33C [translation available]

China 4 January 1995 CIETAC Arbitration Award [CISG/1995/02] (Shirts case) 33A [translation available]
 

Germany 13 July 1994 Landgericht [District Court] Frankfurt

Germany 14 June 1994 Amtsgericht [Lower Court] Nordhorn 33A [translation available]
 

Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]
 

* Germany 24 April 1990 Amtsgericht [Lower Court] Oldenburg (Fashion textiles case) 33A [translation available] 33A


CASE DIGEST AND ANALYSIS
-   UNCITRAL's case law digest; and
-   An analysis of CISG jurisprudence

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/33 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 33
Digest of Article 33 case law
-    Meaning and purpose of the provision
-    Fixed date (lit. a)
-    Fixed period for delivery (lit. b)
-    Reasonable time (lit. c)
-    Meaning of delivery
-    Consequences
-    Burden of proof]
ARTICLE 33

The seller must deliver the goods:
     (a) if a date is fixed by or determinable from the contract, on that date;
     (b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or
     (c) in any other case, within a reasonable time after the conclusion of the contract.

DIGEST OF ARTICLE 33 CASE LAW

Meaning and purpose of the provision

1. Article 33 specifies the time within which the seller has to deliver the goods. In this respect one first has to look at the delivery date or period fixed in the contract thereby letting party autonomy prevail over the provisions of the Convention.[1] If no specific date or period can be inferred from the contract, article 33(c) fixes as default rule a reasonable time after the conclusion of the contract.

2. Although article 33 addresses merely the duty to deliver, its rules apply as well to other duties of the seller which have also to be performed at the date provided in the contract and, absent any such provision, within a reasonable time.

Fixed date (lit. a)

3. Article 33(a) presupposes that the parties have fixed a precise day for delivery [2] or that such date can be inferred from the contract (e.g., "15 days after Easter") or is determined by any usage or practice. In that case the seller has to deliver precisely on that fixed date.[3] Any delivery at a later time constitutes a breach of contract.

4. According to one court, 33(a) also covers the situation where the parties have not fixed a specific date of delivery but have agreed that the seller should deliver at the request of the buyer.[4] If the buyer, however, does not request delivery then the seller is not in breach.[5]

Fixed period for delivery (lit. b)

5. Article 338(b) requires that the parties have fixed a period of time during which the goods can be delivered or that such period can be inferred from the contract. The seller then may deliver at any date during that period.

6. A period for delivery is, e.g., fixed by a contract provision "until: end December".[6] Any delivery between the conclusion of the contract and the end of December would conform to the contract while the delivery after December 31 would be constitute a breach of contract. The same is true if delivery is to be "effected in 1993-1994".[7] In that case, any delivery between January 1, 1993 and December 31, 1994 corresponds to a timely performance.[8] The right to choose the concrete date of delivery during the period rests generally with the seller.[9] For the buyer to be able to choose the delivery date, an agreement to that effect is necessary.[10] In one case, the contract provision for delivery "July, August, September + -" was understood to mean that one third of the shipment was to be delivered during each of the aforementioned months.[11]

Reasonable time (lit. c)

7. Article 33(c) applies where neither the contract nor any usage or practice between the parties provides a specific time for delivery. The seller has then to deliver within a reasonable time. "Reasonable" means a time adequate in the circumstances. Therefore, delivery of a bulldozer two weeks after receipt of invoice and payment of first instalment has been held reasonable.[12] Where a contract is concluded in January and provides for delivery "April, delivery date remains reserved"[13] also a reasonable time has been held to apply since a concrete delivery date had never been fixed. In the case where the buyer had made clear that he was interested in delivery until March 15 the reasonable time has been held to end before April 11.[14]

Meaning of delivery

8. Article 33 requires that the seller has performed in time all acts to which he is obliged under the contract or under articles 31, 32 or 34. Unless otherwise agreed upon article 33 does not require that the buyer be able to take possession of the goods on the date of delivery.[15]

Consequences

9. Any delivery after the date or after the end of the period for delivery is a breach of contract to which the rules of the Convention on remedies apply. If the delivery date was essential then late delivery amounts to a fundamental breach and even avoidance of contract can be declared.[16] However, according to one court, a one day delay in the delivery of a small part of the goods does not constitute a fundamental breach even in case of a fixed date of delivery agreed upon the parties.[17] But the parties are always free to write into their contract that any delay of delivery is to be treated as a fundamental breach of contract.[18]

10. One arbitral tribunal held that the seller’s declaration that it would not be able to deliver the goods on time constituted an anticipatory breach of contract in the sense of article 71.[19]

Burden of proof

11. The party asserting that a specific date or period for delivery has been agreed upon has to prove such agreement.[20] A buyer who asserts that it is to choose the actual date during a period of delivery must prove a respective agreement or circumstances evidencing that assertion.[21]


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm  23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>].

2. See the example in [ITALY Corte di Appello [Appellate Court] Milano 20 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980320i3.html>] ("Delivery: 3rd December, 1990").

3. See also the Secretariat Commentary to (then) article 31, p. 31, para. 3.

4. CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm  23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>] (see full text of the decision).

5. Id. (in this case the seller had to deliver according to "delivery graphics" provided by the buyer. But the buyer did never provide those "graphics") (see full text of the decision).

6. See the case in [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>].

7. See the case in [ICC Court of Arbitration, case No. 9117 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/989117i1.html>].

8. Id.

9. Id..

10. Id.; impliedly also CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm  23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>].

11. CLOUT case No. 7 [GERMANY Amtsgericht [Lower Court] Oldenburg in Holstein 24 April 1990, available online at <http://cisgw3.law.pace.edu/cases/900424g1.html>].

12. CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 28 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971028s1.html>]. Also stating the reasonableness of the time of delivery despite the seasonal character of the Christmas goods: CLOUT case No. 210 [SPAIN Audienca Provincial [Appellate Court] Barcelona 20 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970620s4.html>].

13. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>].

14. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>] (the court found that the offer "March 15" was not materially altered by the acceptance "April, delivery date reserved". Since the offeror did not object to the terms of the acceptance, its contents became part of the contract according to art 19(2)).

15. See the Secretariat Commentary to (then) article 31, p. 31, para. 2; also [GERMANY Landgericht [District Court] Oldenburg 27 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960327g1.html>].

16. [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>].

17. [GERMANY Landgericht [District Court] Oldenburg 27 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960327g1.html>].

18. [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>] (in that case the agreed general conditions of the buyer provided that any delay of delivery constituted a fundamental breach of contract).

19. [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>].

20. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>] (see full text of the decision).

21. [ICC Court of Arbitration, case No. 9117 of March 1998, available online at <http://cisgw3.law.pace.edu/cases/989117i1.html>].


ANALYSIS OF CISG CASE LAW

Reprinted by special permission of Northwestern University School of Law. 34 Northwestern Journal of International Law and Business (Winter 2004) 299-440.[*]

excerpt from

The Interpretive Turn in International Sales Law:
An Analysis of Fifteen Years of CISG Jurisprudence

Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene,
Virginia Maurer and Marisa Pagnattaro

[...]

2. Time of Delivery: Article 33

Article 33 fixes the obligation of the seller to deliver the goods according to the contract terms or, if the time of delivery cannot be ascertained from the contract, then within a reasonable time after the conclusion of the contract. National courts and arbitral panels have applied this Article in cases involving questions of whether a time for delivery was fixed in the contract; [546] where a time was fixed but not met and the issue was whether this constituted a fundamental breach; [547] where no time for [page 389] delivery was fixed and the reasonability of the time taken was in question; [548] and in cases in which the buyer may have provided an additional period of time for delivery under Article 47.[549] The scope of these cases indicate that the "reasonability" standard in Article 33 provides courts with the flexibility to vary the time frame for delivering goods depending on the nature of the goods and distance covered.

[...]


FOOTNOTES

* For a subsequent text on this subject by these authors, see Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer & Marisa Pagnattaro, "International Sales Law: A Critical Analysis of CISG Jurisprudence", Cambridge University Press (2005) 241 p.

[...]

546. AG Nordhorn 3 C 75/94, Jun. 14, 1994 supra note 261 (deciding whether handwritten addition "before the holidays, no later" constituted, under trade usage, an agreement that shoes would be delivered before Aug. 1).

547. T, SA v. E, 729/96-B Audiencia Provincial de Barcelona, sección 16 a, Nov. 3, 1997 (Spain), available at <http://cisgw3.law.pace.edu/cases/971103s4.html>.

548. See, e.g., Tribunal Cantanol Valais [Canton Appellate Court], C1 97 167, Oct. 28, 1997 (Switz.), available at <http://cisgw3.law.pace.edu/cases/971028s1.html>; OLG Naumberg 9 U 146/98, Apr. 27, 1999 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/990427g1.html> [English translation by Jarno Vanto, translation edited by Ruth M. Janal]; ICC, 8611/HV/JK, Jan. 23, 1997, available at <http://cisgw3.law.pace.edu/cases/978611i1.html> [English translation by Beate Satory].

549. See, e.g., S.A.P. v. AWS, Tribunal de commerce Nemur [District Court], R.G. 985/01, Jan. 15, 2002, supra note 492; T, SA v. E, 729/96-B Audiencia Provincial de Barcelona, section 16a, Nov. 3, 1997, supra note 547. A controversy, of sorts, exists between commentators over whether only express assurances about the goods become contract obligation, or whether both descriptions of the goods and promised characteristics become contract obligations. See Enderlein & Maskow, supra note 20, at 141.

[...]

Go to complete text of Analysis of Fifteen Years of CISG Jurisprudence


ANNOTATED COMPARATIVES
-  PECL comparative

Comparison between provisions of the CISG (Articles 33 and 52(1))
and the counterpart provisions of the PECL (Articles 7:102 and 7:103)

Colin Ying [*]
December 2004

  1. Introduction
  2. Ascertaining the time for delivery (Article 33 CISG and Article 7:102 PECL)
  3. Consequences of early delivery by the seller (Article 52(1) CISG and Article 7:103 PECL)
    1. Qualification of the buyer's option to refuse to take delivery
    2. Effect of acceptance of early delivery on the time for the buyer's performance of his obligations
         a. Time for payment specified
         b. Time for payment unspecified
  4. Conclusion

I. Introduction

According to Article 30 CISG, the seller has three obligations which should be performed as required by the contract and the Convention: (i) an obligation to deliver the goods, (ii) an obligation to hand over any documents relating to the goods, and (iii) an obligation to transfer the property in the goods. Article 33 CISG deals with one aspect of the seller's first-mentioned obligation to deliver the goods,[1] viz ascertaining the time for delivery, while Article 52(1) CISG sets out the legal consequences of an early delivery of the goods by the seller.

In this context, Article 33 provides for three situations: (i) where the contract fixes a date or permits a date to be fixed; (ii) where the contract fixes a period of time or permits a period of time to be fixed; and (iii) any other situation, e.g., where the contract is silent as to the date or time for delivery. In the first situation, the seller must deliver the goods on the date so fixed. In the second situation, the seller must deliver the goods on any date within the period so fixed, unless circumstances indicate that the buyer is to choose a date within that period. In the third situation, the seller must deliver the goods within a reasonable time after the conclusion of the contract.

Delivery by the seller on the due date obliges the buyer to take delivery of the goods as well as to pay the price for them as required by the contract and the Convention (Article 53 CISG). On the other hand, if the seller delivers the goods before the due date, the buyer is not obliged to take delivery at that time, but has the option of taking or refusing to take delivery (Article 52(1) CISG). If the seller delivers the goods after the due date, he will be in breach of contract, although the buyer may still be obliged to accept delivery then, while being entitled to appropriate remedies (damages being the norm) in accordance with Article 45 CISG. These editorial remarks focus on early, rather than late, delivery.

Article 7:102 PECL is virtually identical to Article 33 CISG in all material respects, if one treats the CISG seller as the PECL party required to perform, and the CISG buyer as the PECL "other party". The same three situations in the CISG are dealt with in the PECL using the same terminology.

Like Article 52(1) CISG, Article 7:103(1) PECL gives a party in the position of the buyer the same option to decline a tender of early performance by the other party, but goes on to qualify the exercise of the option. The party in question loses the option where acceptance of the tender of early performance "would not unreasonably prejudice its interests". In addition, Article 7:103(2) PECL states that "[a] party's acceptance of early performance does not affect the time fixed for the performance of its own obligation", but the Convention has no comparable Article.

There thus appear to be two differences between Article 52(1) CISG and Article 7:103 PECL, and these differences will be analysed after a comparison is made between Article 33 CISG and Article 7:102 PECL.

II. Ascertaining the time for delivery (Article 33 CISG and Article 7:102 PECL)

Delivery of the goods consists of placing the goods at the buyer's disposal at the appropriate place, doing such act as may constitute delivery under the terms of the contract or, where the contract of sale involves the carriage of goods, handing the goods over to the first carrier for transmission to the buyer.[2]

It should not be problematic to determine the time for delivery in the first two situations covered by paragraphs (a) and (b) of Article 33 CISG or paragraphs (1) and (2) of Article 7:102 PECL. A specific date or period of time can be stated in or determinable from the contract,[3] and where the contract fixes the period of time or allows it to be fixed from objective criteria, any date within that period can be the date of delivery, unless circumstances indicate that the buyer is to choose a date within that period. One such circumstance may be where the buyer is to arrange for the transport of the goods and the contract is FOB, or where the intention is to permit the buyer to schedule the exact arrival time of the goods so as not to overtax his storage and handling capacity.[4]

The date in the third situation (paragraph (c) of Article 33 or paragraph (3) of Article 7:102 PECL) is more flexible and indeterminate. Where no date or period of time for delivery is fixed or capable of being fixed from the contract, the time for delivery is within "a reasonable time after the conclusion of the contract". What is a reasonable time after the conclusion of the contract will vary from case to case, and will depend on all the circumstances, such as the nature of the goods, the distance covered, and the parties' statements during negotiations.[5] According to Honnold, "[w]hat is 'reasonable' can appropriately be determined by ascertaining what is normal and acceptable in the relevant trade."[6] Schlechtriem has suggested that the rule in paragraph (c) should take precedence over a hypothetical inconsistent national law that might provide that where an indeterminate delivery date has been agreed upon, the seller is liable to deliver immediately.[7] On the other hand, one might suppose that if a seller did deliver immediately, even if not obliged to do so, the seller would have delivered "within" a reasonable time after the contract was concluded.

As was previously mentioned, under both the Convention and PECL, in the first situation where the delivery date is fixed by or determinable from the contract, the seller must deliver the goods on the date so fixed or determined. In the second situation where a period of time for delivery is fixed by or determinable from the contract, the seller must deliver the goods on any date within that period, unless circumstances indicate that the buyer is to choose a date within that period. In any other case, the seller must deliver the goods within a reasonable time after the conclusion of the contract.

Delivery after the relevant due date amounts to a breach of contract, which entitles the buyer to the remedies described in Article 45 CISG, and in particular the remedy of damages. Late delivery in itself does not automatically allow the buyer to avoid the contract. Under Article 49 CISG the buyer can avoid the contract for late delivery only if (i) the seller's failure to deliver on time amounts to a "fundamental breach of contract", as defined in Article 25 to mean in essence a breach that results in such detriment to the buyer as substantially to deprive him of what he is entitled to expect under the contract, or (ii) the seller fails to, or declares that he will not, deliver within a reasonable additional time fixed by the buyer under Article 47 CISG.[8] The position is essentially the same under Articles 8:106, 9:103 and 9:301 PECL.[9]

III. Consequences of early delivery by the seller (Article 52(1) CISG and Article 7:103 PECL)

Both Article 52(1) CISG and Article 7:103 PECL deal with performance of its obligations by a contracting party (the seller in the Convention) before the due date, and the consequential position of the other party (the buyer in the Convention). It is thought that neither Article can apply to the situation where the date or period of time for delivery is not fixed by or determinable from the contract, and where the seller's obligation is only to deliver before a reasonable time has elapsed after the contract is concluded (i.e., where Article 33(c) CISG or Article 7:102(3) PECL sets the delivery time). Delivery at any time within that period cannot amount to early delivery under Article 52(1) CISG or early performance under Article 7:103 PECL.

Article 52(1) CISG is placed in Part III (Sale of Goods), Chapter II (Obligations of the Seller), Section III (Remedies for Breach of Contract by the Seller) of the Convention. It therefore appears to treat delivery by the seller before the due date determined in accordance with Article 33 CISG as ordinarily a breach of contract. Early delivery is at least non-performance by the seller of its obligation to deliver, and in those circumstances, the buyer has the option of taking or refusing to take delivery of the goods, since having to accept early unanticipated delivery by the seller may cause the buyer additional expense or inconvenience. Article 52(1) CISG does not purport to qualify the buyer's right to exercise that option.[10]

Article 7:103(1) PECL gives a party in the position of the buyer the same option, but qualifies the exercise of the option. The party in question loses the option where acceptance of the tender of early performance "would not unreasonably prejudice its interests". In addition, Article 7:103(2) goes on to provide that "[a] party's acceptance of early performance does not affect the time fixed for the performance of its own obligation." Consequently, the fact that the buyer accepts early delivery may not mean that the buyer in turn has to pay the purchase price (the buyer's only relevant obligation for our purposes [11]) before the contractual date for payment. The Convention has no express provision that parallels Article 7:103(2).

Whether the apparent silence of the Convention on these two PECL points means that the buyer's position under the CISG is different to that under the PECL will now be examined.

1. Qualification of the buyer's option to refuse to take delivery

The buyer's general obligation to take delivery set out in Article 60 CISG includes an obligation to do "all the acts which could reasonably [writer's emphasis] be expected of him in order to enable the seller to make delivery" and to take over the goods. While Article 52(1) CISG appears to give the buyer an absolute option to refuse to take early delivery, the exercise of such an option may arguably be constrained by Article 60 CISG, and in any event must be governed by the general principle of reasonableness applicable under the CISG.[12] In addition, there is a separate view that when considering whether to refuse to take early delivery, the buyer must act in good faith under Article 7(1) CISG.

On the issue of good faith generally in the Convention, Felemegas has argued forcefully that the CISG imposes no substantive duty of good faith on parties to a contract of sale, and that Article 7(1) only requires the observance of good faith in interpreting the Convention.[13] Magnus adopts a contrary stance,[14] and his approach finds support in the Secretariat Commentary on Article 48 of the 1978 Draft [draft counterpart of CISG Article 52].[15] The Secretariat's opinion on the point was that where the seller delivers early, while the buyer's right to refuse to take delivery does not depend on whether early delivery causes the buyer extra expense or inconvenience, "the buyer must have a reasonable commercial need to refuse to take delivery since article 6 [the draft counterpart of Article 7(1) CISG] requires the observance of good faith in international trade."[16]

Given therefore an obligation under the CISG on the buyer's part to conduct himself reasonably or to observe good faith when exercising the option under Article 52(1), the buyer's right to refuse early delivery cannot be unqualified, and the counterpart provision in Article 7:103 PECL contains an appropriate qualification consistent with the principles of the Convention. Thus, if the ship carrying the goods arrives a week before the contractual delivery date, the buyer who has storage room available will not be entitled to refuse to take early delivery, where the seller is prepared to cover the buyer's expenses and carry the risk during storage of the goods until the contractual delivery date.

2. Effect of acceptance of early delivery on the time for the buyer's performance of his obligations

Two situations should be distinguished, viz where the contract specifies the time for payment and where it does not.

a. Time for payment specified

One of the buyer's two obligations under Article 53 CISG is to pay the contract price for the goods "as required by the contract and [the] Convention".[17] Article 59 CISG governs the time for payment by the buyer, and this is "the date fixed by or determinable from the contract and [the] Convention". Therefore, if the contract fixes a particular date for payment, the buyer is not obliged to pay the seller before that date arrives, even if the seller chooses to deliver the goods to the buyer early, and the buyer chooses to accept that early delivery. This is likewise the position under Article 7:103(2) PECL.

However, Enderlein and Maskow suggest in relation to Article 52(1) CISG that where the buyer accepts early delivery, in some circumstances that "may" constitute a contractual modification in regard to the period of performance under Article 29 CISG, and if so, the buyer will have to perform his obligations at an earlier date.[18] It is difficult to appreciate why, if a given contract is modified under Article 29 as to the delivery date by the buyer's acceptance of the seller's early delivery (thereby negating any claim for damages by the buyer for the early delivery), the buyer's obligation to pay the price must necessarily be brought forward. A possible justification for that conclusion may lie in the reasoning that the contractual date for payment must be taken to have been displaced in the modified contract, with the result that, since there is no longer a fixed payment date, Article 58(1) CISG requires the buyer to pay on actual delivery. This reasoning is not entirely convincing.

The Secretariat Commentary on Article 48 of the 1978 Draft (identical to Article 52 CISG) also recognises that the buyer's acceptance of early delivery may in some circumstances amount to an agreed modification of the contract pursuant to Article 27 of the 1978 Draft (now Article 29 CISG).[19] It is unclear what Enderlein and Maskow and the Secretariat envisage as the circumstances accompanying early delivery by the seller that will point to the contract being modified. To avoid any inference under the CISG that the contract has been modified simply by the buyer's acceptance of the seller's early delivery, a prudent buyer should declare a relevant reservation when taking delivery. Under the PECL, while a contract, and any obligations under it, can be likewise modified by agreement,[20]any implication along the lines suggested by Enderlein and Maskow advancing the date of the buyer's obligation to pay should less readily arise because of the express provision in Article 7:103(2) PECL, even if theoretically possible.

b. Time for payment unspecified

If the contract specifies no date for payment, the Convention provides in Article 58(1) that the buyer must pay the price when the seller places the goods or the documents controlling their disposition at the buyer's disposal in accordance with the contract and the Convention.[21] In such a case, early delivery by the seller accepted by the buyer requires the latter to pay earlier than he would otherwise have done. This will have a bearing on whether the buyer will or should exercise the option under Article 52(1) CISG to refuse to take delivery. The result is the same if the contract expressly links the day when payment is to be made to the day of delivery, whenever that may be, without a particular date being specified: the earlier the delivery by the seller, the earlier the payment by the buyer who accepts the early delivery.

Whether the contract gives no specific time for payment or whether the contract links the time for payment to the time of delivery, the position under the PECL is similar to that outlined above under the CISG. If the contract "fixed" no specific date for the buyer to pay the seller, on one view Article 7:103(2) is inapplicable, and the time for the buyer's payment is determined solely by Article 7:104 PECL: effectively the time of actual delivery. If one takes the broader view that Article 7:103(2) does not require the contract to specify a particular date for the performance of the buyer's obligation to pay before it can apply, the time "fixed" for the buyer to pay the seller must be first identified. Article 7:104 PECL fixes that time as effectively the time when the seller delivers the goods in the proper performance of his contractual obligations. On that basis, according to Article 7:103(2) PECL, the buyer's acceptance of the seller's early delivery does not affect the time fixed by Article 7:104 PECL for the performance by the buyer of his obligation to pay, since that time remains the time of delivery by the seller, whenever that occurs.

IV. Conclusion

Article 33 CISG and Article 7:102 PECL set out the applicable rules for ascertaining the time for delivery by the seller, and require the seller to deliver on time. As was earlier observed, both Articles are virtually identical in all material respects, with the same three situations in the CISG being dealt with in the PECL using the same terminology. Article 33 CISG is thus substantively on all fours with Article 7:102 PECL, and both should have the same legal effect.

In relation to early delivery by the seller, there are two differences between Article 52(1) CISG and Article 7:103 PECL. First, the former appears not to qualify the buyer's right to accept or reject the seller's early delivery, while the latter does so. Secondly, the former is silent on the effect of early delivery by the seller on the time for payment by the buyer, while the latter provides that a party's acceptance of early performance does not affect the time for the performance of its own obligations. However, in the writer's opinion, these two differences are largely immaterial, as the latter merely makes more explicit what is implicit in the former. Consequently, both Articles would likely have the same effect.


FOOTNOTES

* Senior Lecturer, Faculty of Law, University of Technology, Sydney.

1. The Convention does not generally deal with the third obligation, see Article 4: "[...] except as otherwise expressly provided in this Convention, it is not concerned with: [...] (b) the effect which the contract may have on the property in the goods sold".

2. See Article 31 CISG, which deals with the place of delivery. Article 33 CISG deals with the time for delivery; see also the Secretariat Commentary on Article 31 of the 1978 Draft [draft counterpart of CISG article 33], § 2, available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-33.html>. Article 31 of the 1978 Draft is identical to Article 33 CISG, except for the omission of "or" between paragraphs (a) and (b) of Article 33.

3. A date determinable from a usage that is applicable to the contract under Article 9 CISG or Article 1:105 PECL comes within the first situation.

4. Secretariat Commentary on Article 31 of the 1978 Draft [draft counterpart of CISG article 33], supra note 2, §§ 6 and 7; Peter Schlechtriem, Uniform Sales Law - the UN Convention on Contracts for the International Sale of Goods, Manz (1986), p 66, fn 244; Fritz Enderlein and Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods; Convention on the Limitation Period in the International Sale of Goods, Oceana (1992), p 136; Ole Lando and Hugh Beale (eds), Principles of European Contract Law, Kluwer (2000), pp 332-333.

5. Germany 27 April 1999 Oberlandesgericht [Appellate Court] Naumburg, case presentation including English translation available online at <http://cisgw3.law.pace.edu/cases/990427g1.html> (the court took into account the buyer's statement nominating 15 January 1997 as the latest delivery date in ruling that delivery after that date would not be within a reasonable time under Article 33(c) CISG).

6. John Honnold, Uniform Law for International Sales under the 1980 United National Convention, 3rd ed., Kluwer (1999) p 101. Frans van der Velden argues that reasonableness must be regarded as a general principle of the Convention: see "The Law of International Sales: The Hague Conventions 1964 and the UNCITRAL Uniform Sales Code 1980 - Some Main Items Compared" in CCA Voskuil and JA Wade (eds.), Hague-Zagreb Essays 4 on the Law of International Trade, Martinus Nijhoff (1983) p 59. Cf. Article 1:302 PECL, which states how reasonableness is to be judged.

7. Peter Schlechtriem, "The Seller's Obligations under the United National Convention on Contracts for the International Sale of Goods" in NM Galston and H Smit (eds), International Sales: The United Nations Conventions on Contracts for the International Sale of Goods, Matthew Bender (1984), pp 6-1 - 6-4 and 6-15.

8. Article 47 CISG gives the buyer the right to extend the seller's time for performance, while preserving the former's right to claim damages for the delay. The seller's failure to, or declaration that he will not, deliver within the extended period allows the buyer to avoid the contract.

9. See Bruno Zeller, Editorial remarks: Guide to Articles 47 and 49(1)(b) CISG, and Comparison with Principles of European Contract Law , available online at <http://cisgw3.law.pace.edu/cisg/text/peclcomp47.html>.

10. However, Article 86 CISG may compel the buyer in some circumstances to take possession of the goods on the seller's behalf although the buyer has rejected the goods.

11. The buyer has two obligations under the CISG: an obligation to pay the price for the goods, and an obligation to take delivery of the goods. The former obligation is more relevant for present purposes, where the hypothesis is that the buyer has taken early delivery.

12. Peter Schlechtriem writes that "the rule that the parties must conduct themselves according to the standard of the 'reasonable person' ... must be regarded as a general principle of the Convention": supra note 4, p 22 fn 41, and p 39. Frans van der Velden, supra note 6, p 59, also argues that reasonableness must be regarded as a general principle of the Convention. See also Albert Kritzer's Overview Comments on reasonableness as a general principle of the CISG, available online at <http://cisgw3.law.pace.edu/cisg/text/reason.html>.

13. John Felemegas in his editorial remarks on Article 7 CISG, comparing it with Article 1:106 PECL, available online at <http://cisgw3.law.pace.edu/cisg/text/peclcomp7.html>.

14. Ulrich Magnus in his editorial remarks on Article 7 CISG, comparing it with Article 1.6 UNIDROIT Principles, available online at <http://cisgw3.law.pace.edu/cisg/principles/uni7.html>.

15. Article 48 of the 1978 draft corresponds and is identical in wording to Article 52 CISG.

16. Secretariat Commentary on Article 48 of the 1978 Draft [draft counterpart of CISG article 52], § 3 and fn 1, available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-52.html>. While accepting that the buyer's freedom to refuse early delivery is necessarily restricted by the obligation in Article 7(1) CISG to observe good faith, Michael Will has criticised the restriction of "reasonable commercial need" placed on the buyer by the Secretariat Commentary as placing an unwarranted burden on the buyer: in CM Bianca and MJ Bonell (eds.), Commentary on the International Sales Law, Giuffrè (1987), p 380.

17. The buyer's other obligation under Article 53 CISG is to take delivery of the goods, but that obligation is largely academic for our purposes, since the hypothesis here is that the buyer has accepted the seller's early delivery.

18. Enderlein and Maskow, supra note 4, p 200.

19. Secretariat Commentary on Article 48 of the 1978 Draft, § 6, supra note 16.

20. See Articles 2:105, 2:106 and 2:107 PECL.

21. However, even so, the buyer may not be bound to pay until he has had an opportunity to examine the goods: Article 58(3) CISG. See further Leif Sevón, "Obligations of the Buyer under the UN Convention on Contracts for the International Sale of Goods" in Petar Sarcevic and Paul Volken (eds.), International Sale of Goods: Dubrovnik Lectures, Oceana (1986), Chap 6, p 217, § 2.4.2; Secretariat Commentary on Article 54 of the 1978 Draft [draft counterpart of CISG article 58], §§ 5-9, available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-58.html>.


Pace Law School Institute of International Commercial Law - Last updated September 14, 2009
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