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

Digest of Article 33 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
Delivery date fixed or determinable from the contract
Fixed period for delivery
Delivery within a reasonable time after conclusion of the contract
What constitutes delivery
Consequences of late delivery
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.

OVERVIEW

1. Article 33 specifies the time at or within which the seller must deliver the goods. Under articles 33(a) and (b), the time of delivery is governed first by the provisions of the contract, consistently with the general principle of party autonomy adopted in the Convention.[1] If no delivery date or delivery period can be inferred from the contract, article 33(c) states a default rule requiring delivery "within a reasonable time after the conclusion of the contract."

2. Although article 33 addresses only the duty to deliver, its approach is applicable to other duties of the seller, which also must be performed at the time provided in the contract or, absent such a provision, within a reasonable time.

Delivery Date Fixed or Determinable from the Contract

3. Article 33(a) presupposes that the parties have fixed a date for delivery,[2] or that such a date can be inferred from the contract (e.g., "15 days after Easter 2011") or determined by reference to a usage or practice as provided in article 9. In that case the seller must deliver on that fixed date.[3] Delivery at a later time constitutes a breach of contract. It has been held that a date can be inferred from the contract if the parties agreed that delivery should be made after the opening of a letter of credit.[4]

4. According to one court, article 33(a) also applies where the parties did not at the time of contract conclusion fix a specific date of delivery, but instead agreed that the seller should deliver at the request of the buyer.[5] If the buyer does not request delivery, however, the seller is not in breach.[6]

Fixed Period for Delivery

5. Article 33(b) applies where either the parties have fixed a period of time during which the seller can deliver the goods, or such a period can be inferred from the contract. In such cases, article 33(b) provides that the seller may deliver at any date during that period.

6. For purposes of article 33(b), a period for delivery is fixed, e.g., by a contract clause providing for delivery "until: end December".[7] Under this clause, delivery at some point between the conclusion of the contract and the end of December would conform to the contract, whereas delivery after 31 December would constitute a breach of contract. Similarly, if delivery is to be "effected in 19931994",[8] delivery any time between 1 January 1993 and 31 December 1994 constitutes timely performance.[9] Where the contract provides for a delivery period the right to choose the specific date of delivery generally rests with the seller.[10] For the buyer to have the right to specify a delivery date within the period, an agreement to that effect is necessary,[11] as the last clause of article 33(b) suggests. Where the parties agreed on delivery "ex factory" a court held that the buyer could choose at which date during the delivery period to take the goods.[12] In one case, a court assumed arguendo that a contract provision calling for delivery in "July, August, September + -" might require delivery of one third of the contracted-for quantity during each of the specified months.[13] Another court held that a delivery period "autumn 1993" was sufficiently specific, and it obliged and allowed delivery to occur until the end of the meteorological autumn (21 December).[14]

Delivery within a Reasonable Time After Conclusion of the Contract

7. Article 33(c) applies where a specific time or period for delivery cannot be derived from the contract or from usages or practices between the parties. In that case, article 33(c) requires the seller to deliver "within a reasonable time after the conclusion of the contract". "Reasonable" means a time adequate in the circumstances. Delivery of a bulldozer two weeks after the seller received the first instalment on the price has been held reasonable.[15] It was held that a delivery time of 10 months in the case of a loader whose agreed refurbishment could last 120 to 180 days might be reasonable under the circumstances.[16] Where a contract concluded in January contained the delivery term "April, delivery date remains reserved",[17] the court held that article 33(c) applied and delivery was due within a reasonable time after the contract was concluded because a concrete delivery date or period could not be determined from the contract: because the buyer had made it clear that he needed delivery by 15 March, the reasonable time was held to have expired before 11 April.[18] Article 33(c) has been also applied to interpret a standard contract term that allowed the seller to change the agreed delivery date:[19] by this approach, the court found that the term must be understood to limit the seller to dates that resulted in delivery within a reasonable period after the conclusion of the contract.[20]

What Constitutes Delivery

8. To timely fulfil the obligation to deliver, the seller must perform, in compliance with the deadlines established under article 33, all delivery obligations required by the contract or under articles 31, 32 or 34. Unless otherwise agreed, article 33 does not require that the buyer be able to take possession of the goods on the date of delivery.[21]

Consequences of Late Delivery

9. Delivery after the date or period for delivery is a breach of contract to which the Convention's rules on remedies apply. If timely delivery was of the essence of the contract, late delivery amounts to a fundamental breach, and the contract can be avoided as provided in article 49.[22] According to one decision, a one day delay in the delivery of a small portion of the goods does not constitute a fundamental breach even where the parties had agreed upon a fixed date for delivery.[23] The parties, however, can provide in their contract that any delay in delivery is to be treated as a fundamental breach.[24]

10. It has been held, however, that no breach of contract occurred where the seller failed to meet a delivery date, mentioned during negotiations, that was prior to the time the contract was concluded: citing article 33(c), the court held that "the CISG requires delivery within a reasonable time after the conclusion of the contract, not before."[25]

11. A seller's declaration that it would not be able to deliver the goods on time, it has been held, constituted an anticipatory breach of contract in the sense of article 71.[26]

Burden of Proof

12. A party asserting that a date or a period for delivery has been agreed upon must prove such agreement.[27] A buyer who asserts that it has the right to choose a specific delivery date within an agreed period for delivery must prove an agreement or circumstances supporting the assertion.[28] In a case where the parties did not specify the delivery date in the contract, a court held that if the buyer accepts the goods without protest that was an expression that delivery was made within a reasonable time.[29]


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. 338 [GERMANY Oberlandesgericht Hamm 23 June 1998].

2. See the example in [ITALY Corte di Appello di Milano 20 March 1998] ("Delivery: 3rd December, 1990").

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

4. [ITALY Tribunale di Forlí 16 February 2009].

5. CLOUT case No. 338 [GERMANY Oberlandesgericht Hamm 23 June 1998] (see full text of the decision). See also CLOUT case No. 883 [SWITZERLAND Kantonsgericht Appenzell Ausserrhoden 10 March 2003] (parties agreed that delivery date should be fixed later; after seller postponed fixing a date several times, the buyer fixed a date that the court accepted as delivery date).

6. CLOUT case No. 338 [GERMANY Oberlandesgericht Hamm 23 June 1998] (contract provided that the seller would deliver according to delivery schedules drawn up by the buyer, but the buyer apparently never provided the schedules) (see full text of the decision).

7. See [ICC Court of Arbitration of the International Chamber of Commerce, January 1997 (Arbitral award No. 8786)].

8. See [ICC Court of Arbitration of the International Chamber of Commerce, France, March 1998 (Arbitral award No. 9117)].

9. Ibid. See also [UNITED STATES District Court, New Jersey, 4 April 2006 (Valero Marketing & Supply Company v. Greeni Trading Oy)] reversed on other grounds in CLOUT case No. 846 [UNITED STATES Court of Appeals for the Third Circuit, 19 July 2007].

10. [ICC Court of Arbitration of the International Chamber of Commerce, France, March 1998 (Arbitral award No. 9117)].

11. Ibid.; impliedly also CLOUT case No. 338 [GERMANY Oberlandesgericht Hamm 23 June 1998].

12. [SPAIN Tribunal Supremo 9 December 2008].

13. CLOUT case No. 7 [GERMANY Amtsgericht Oldenburg in Holstein 24 April 1990].

14. CLOUT case No. 943 [NETHERLANDS Hof 's-Hertogenbosch 20 December 2005].

15. CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal Valais 28 October 1997]. Another decision found that the seller delivered within a reasonable time despite the seasonal (Christmas-related) character of the goods: CLOUT case No. 210 [SPAIN Audienca Provincial, Barcelona 20 June 1997].

16. [UNITED STATES District Court, Colorado 6 July 2010 (Alpha Prime Development Corporation v. Holland Loader Company, LLC)] (the buyer had no immediate need for the loader and the court decided only that summary judgment was inappropriate).

18. CLOUT case No. 362 [GERMANY Oberlandesgericht Naumburg 27 April 1999] (the court found that the buyer's offer, which required delivery by "March 15", was not materially altered by the seller's acceptance stating a delivery term of "April, delivery date reserved".; since the offeror did not object to the terms of the acceptance, a contract had been formed under article 19 (2) and the varying term in the acceptance became part of the contract).

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

20. Ibid.

21. See the Secretariat Commentary to (then) article 31, p. 31, paragraph 2. See also [GERMANY Landgericht Oldenburg 27 March 1996].

22. [ICC Court of Arbitration of the International Chamber of Commerce, January 1997 (Arbitral award No. 8786)].

23. [GERMANY Landgericht Oldenburg 27 March 1996]. See also [NETHERLANDS Rechtbank Arnhem 29 July 2009] (if the buyer complains of a two day delay after first having accepted the goods (a minibus), no right of avoidance exists).

24. [ICC Court of Arbitration of the International Chamber of Commerce, January 1997 (Arbitral award No. 8786)] (the general conditions of the buyer, to which the parties had agreed, provided that any delay in delivery constituted a fundamental breach of contract).

25. [UNITED STATES District Court, Western District of Pennsylvania 25 July 2008 (Norfolk Southern Railway Co. v. Power Source Supply, Inc.)].

26. [ICC Court of Arbitration of the International Chamber of Commerce, January 1997 (Arbitral award No. 8786)].

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

28. [ICC Court of Arbitration of the International Chamber of Commerce, France, March 1998 (Arbitral award No. 9117)].

29. CLOUT case No. 210 [SPAIN Audiencia Provincial de Barcelona sección 16ª 20 June 1997].


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