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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 27 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
The dispatch principle
Appropriate means of communication
Effect of appropriate and inappropriate communication
Burden of proof]

Article 27

Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication.

OVERVIEW

1. Article 27 states that, in general, the dispatch principle applies to all kinds of communications provided for in Part III of the Convention (articles 25-89). Under this principle the declaring party has only to dispatch its communication by using an appropriate means of communication; the addressee then bears the risk of correct and complete transmission of the communication.[1]

The Dispatch Principle

2. The dispatch principle is the general principle of the Convention applicable to communications after the parties have concluded their contract. According to the principle, a notice, request or other communication becomes effective as soon as the declaring party releases it from its own sphere by an appropriate means of communication.[2] This rule applies to notice of non-conformity or of third-party claims (articles 39, 43); to requests for specific performance (article 46), price reduction (article 50), damages (article 45(1)(b)) or interest (article 78); to a declaration of avoidance (articles 49, 64, 72, 73); to the fixing of an additional period for performance (articles 47, 63); and to other notices, as provided for in articles 32(1), 67(2) and 88. As a general principle for Part III of the Convention, the dispatch principle applies as well to any other communication the parties may provide for in their contract unless they have agreed that the communication has to be received to be effective.[3]

3. Some provisions of Part III of the Convention, however, expressly provide that a communication becomes effective only when the addressee “receives” it (see articles 47(2), 48(4), 63(2), 65, 79(4)).

Appropriate Means of Communication

4. The declaring party must use appropriate means of communication in order for a notice to benefit from the rule of article 27. In one case a court stated that giving notice to a self-employed broker who did not act as a commercial agent for the seller was not an appropriate means of communication with the seller: the notice would only be deemed given by appropriate means if the buyer assured itself about the reliability of the self-employed broker; the buyer also had to indicate to the broker its function as a messenger, as well as the importance of the notice, and had to control the performance of the commission.[4]

5. Article 27 does not explicitly deal with how the language of a communication impacts its appropriateness. In order to be effective, however, the communication must be in the language the parties have explicitly chosen, or that has previously been used among them, or that the receiving party understands or has communicated that it understands.[5]

6. It has been held that article 27 does not govern oral communications.[6] One court stated that such communications are effective if the other party can hear and—with respect to language—understand them.[7]

Effect of Appropriate and Inappropriate Communication

7. Where the declaring party uses an inappropriate means of transmission the risk of delay, error or failure in transmission is generally on the sender, which may render the communication ineffective. Therefore, e.g., the buyer loses its remedies for non-conformity in the delivered goods if the buyer transmits the notice of non-conformity to the wrong person.[8] On the contrary, where the buyer uses an appropriate means any delay, error or failure of transmission of the notice of non-conformity does not deprive the buyer of its remedies.[9]

Burden of Proof

8. It has been held that the declaring party must prove actual dispatch of the communication as well as the time and method of dispatch.[10] If the parties have agreed on a specific form of communication the declaring party must also prove that it used the agreed form.[11] However the declaring party does not need to prove that the communication reached the addressee.[12]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

1. CLOUT case No. 540 [AUSTRIA Oberlandesgericht Graz 16 September 2002]; CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof 30 June 1998]. See also CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006] (notice of non-conformity by fax); [GERMANY Oberlandesgericht München 17 November 2006]; [AUSTRIA Oberster Gerichtshof 24 May 2005].

2. CLOUT case No. 540 [AUSTRIA Oberlandesgericht Graz 16 September 2002]; CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006].

3. [GERMANY Landgericht Stuttgart 13 August 1991] (according to the contract, notice of non-conformity had to be by registered letter; as a result, the court held, the notice had to be received by the other party and the declaring party had the burden of proving that the notice had been received by the other party). See also CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof 30 June 1998].

4. CLOUT case No. 409 [GERMANY Landgericht Kassel 15 February 1996].

5. CLOUT case No. 132 [GERMANY Oberlandesgericht Hamm 8 February 1995]; [GERMANY Landgericht Kassel 15 February 1996] (see full text of the decision).

6. CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof 30 June 1998] (see full text of the decision).

7. Ibid.

8. See CLOUT case No. 409 [GERMANY Landgericht Kassel 15 February 1996] (see full text of the decision).

9. [SWITZERLAND Handelsgericht Zürich 30 November 1998].

10. CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof 30 June 1998]; [GERMANY Landgericht Stuttgart 13 August 1991]; CLOUT case No. 362 [GERMANY Oberlandesgericht Naumburg 27 April 1999] (see full text of the decision); CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006]; [NETHERLANDS Rechtbank Arnhem 11 February 2009]; See also [GERMANY Amtsgericht Freiburg 6 July 2007].

11. [GERMANY Landgericht Stuttgart 13 August 1991]; [NETHERLANDS Rechtbank Arnhem 11 February 2009].

12. CLOUT case No. 362 [GERMANY Oberlandesgericht Naumburg 27 April 1999] (see full text of the decision).


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