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Article 52. Early delivery; excess quantity

TEXT OF ARTICLE 52

(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.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

52A Early delivery: buyer may either take or refuse delivery

52B Excess quantity: buyer may take delivery of all or refuse the excess

52C Contract rate applies to the excess goods buyer received


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. For Art. 52, the UNCITRAL Digests cites two cases: a court decision from Canada, and a Russian arbitration award.

Presented below is a composite list of Art. 52 cases reporting the UNCITRAL Digest cases and other Art. 52 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 31 August 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.
 

Chile 22 September 2008 Corte Suprema [Supreme Court] (Jorge Plaza Oviedo v. Sociedad Agricola Sacor Limitada) [translation available]
 

Switzerland 27 April 2007 Tribunal cantonal [Appellate Court] Valais (Oven case) [translation available]
 

Germany 5 December 2006 Landgericht [District Court] Köln (Plastic faceplates for mobile telephones case) 52B ; 52C [translation available]

Russia 1 March 2006 Arbitration Award 101/2005 [translation in process]
 

China 25 May 2005 CIETAC Arbitration Award [CISG 2005/09] (Iron ore case) 52A [translation available]
 

Spain 5 November 2003 Audiencia Provincial [Appellate Court] Vizcaya

Switzerland 19 August 2003 Tribunal Cantonal [Appellate Court] Valais [translation available]
 

Germany 25 September 2002 Oberlandesgericht [Appellate Court] Rostock [translation available]

Switzerland 25 February 2002 Kantonsgericht [District Court] Schaffhausen [translation available]

China 4 February 2002 CIETAC Arbitration Award [CISG 2002/17] (Steel bar case) [translation available]
 

* Canada 31 August 1999 Ontario Superior Court of Justice (La San Giuseppe v. Forti Moulding Ltd)

ICC August 1999 International Court of Arbitration, Case 9083 [translation available]

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

ICC July 1999 International Court of Arbitration, Case 9448 [English text]
 

Russia 16 December 1996 Arbitration award 378/1995 52B ; 52C [translation available]

China 6 September 1996 CIETAC Arbitration Award [CISG/1996/42] (Engines case) 52B [translation available]

China 5 February 1996 CIETAC Arbitration Award [CISG/1996/07] (Antimony ingot case) 52A [translation available]
 

Egypt 3 October 1995 Arbitration award (Cairo Chamber of Commerce & Industry) [translation available]

* Russia 25 April 1995 Arbitration award 200/1994 [translation available]
 

ICC 1994 International Court of Arbitration, Case 7565 [English text]
 

Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken
 

Germany 22 September 1992 Oberlandesgericht [Appellate Court] Hamm (Frozen bacon case) [translation available]


UNCITRAL CASE DIGEST

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

A/CN.9/SER.C/DIGEST/CISG/52 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 52
Digest of Article 52 case law
-    General remarks
-    Early delivery (Article 52(1))
-    Delivery of excess quantity (Article 52(2))]
ARTICLE 52

     (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.

DIGESTOFARTICLE 52 CASE LAW

General remarks

1. Even where the seller does more than is required by the contract, this raises an issue of non-performance. The article refers to two such situations, namely when the seller delivers too early (art. 52(1)) or delivers too much (art. 52(2)). In both cases the buyer is entitled to refuse the delivery of the goods. If the buyer accepts them, the buyer will be bound to pay the contract price for any excess quantity.

Early delivery (Article 52(1))

2. If the seller delivers the goods before the time for delivery stipulated in the contract the buyer may refuse the tender. There is early delivery when the contract stipulates a certain date or period at or during which delivery has to be effected (e.g., "delivery during the 36th week of the year" and delivery is effected prior to that date. In other cases, e.g., "delivery until 1 September", any delivery before that date would be in accordance with the contract because article 33 permits the seller to begin delivery immediately after the conclusion of contract unless otherwise agreed.[1] If the buyer has rightfully refused the goods because of early delivery the seller must then redeliver the goods at the correct time.[2] Pursuant to article 86 the buyer remains responsible for the goods in the interim.[3]

3. If, however, the buyer takes (early) delivery of the goods, the buyer is obliged to pay the contract price.[4] Any remaining damage (additional storing costs and the like) may be claimed according to article 45(1)(b) unless the acceptance of the early tendered goods amounts to an agreed modification of the delivery date.[5]

4. The rules regarding early delivery also apply if documents relating to the goods are prematurely tendered.

Delivery of excess quantity (Article 52(2))

5. If the seller delivers a greater quantity of goods than stipulated, the buyer is entitled to reject the excess quantity. According to case law, one cannot speak of delivery of a greater quantity of goods where the contract allows for delivery "+/-10% and delivery remains within these limits.[6] Furthermore the buyer must give notice of the wrong quantity since any incorrect quantity is a non-conformity to which the notice requirement of article 39 applies. After a rightful refusal to take the excess quantity, the buyer must preserve the excess quantity of goods pursuant to article 86. But if the buyer takes all or part of the excess quantity, it is obliged to pay the contract price for the excess part as well.[7] If the buyer cannot reject the excess quantity, the buyer can avoid the entire contract if the delivery of the excess quantity amounts to a fundamental breach of contract.[8] Therefore, if the buyer has to take delivery of the excess quantity of goods, the buyer must pay for it but can claim compensation for any damages he thereby suffered.[9]


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. For details see Digest article 33.

2. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 44, para. 5.

3. Id., para. 4.

4. CLOUT case No. 141 [RUSSIA Arbitration Award case No. 200/1994 of 25 April 1995; available online at <http://cisgw3.law.pace.edu/cases/950425r1.html>] (dispatch, in mid-December, of chocolates for Christmas, before buyer transmitted bank guarantee which was the stipulated delivery date; buyer obliged to pay full price).

5. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 44, para. 6.

6. CLOUT case No. 341 [CANADA La San Giuseppe v. Forti Moulding Ltd. Ontario Superior Court of Justice 31 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990831c4.html>].

7. Id. (see full text of the decision).

8. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 44, para. 9.

9. Id.


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 1, 2009
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