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2008 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") 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.

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.[4] If the buyer does not request delivery, however, the seller is not in breach.[5]

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".[6] 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 1993-1994",[7] delivery any time between 1 January 1993 and 31 December 1994 constitutes timely performance.[8] Where the contract provides for a delivery period the right to choose the specific date of delivery generally rests with the seller.[9] For the buyer to have the right to specify a delivery date within the period, an agreement to that effect is necessary,[10] as the last clause of article 33(b) suggests. In one case, a court assumed arguendo that a contract provision calling for for delivery in "July, August, September + -" might require delivery of one third of the contracted-for quantity during each of the specified months.[11]

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.[12] Where a contract concluded in January contained the delivery term "April, delivery date remains reserved",[13] 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.[14]

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.[15]

Consequences of late delivery

9. Delivery after the date or period for delivery is a breach of contract to which the Conventions 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.[16] 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 of delivery.[17] The parties, however, can provide in their contract that any delay in delivery is to be treated as a fundamental breach.[18]

10. 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.[19]

Burden of proof

11. A party asserting that a date or a period for delivery has been agreed upon must prove such agreement.[20] 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.[21]


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_second_edition.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

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1. [GERMANY Oberlandesgericht Hamm 23 June 1998 (Furniture case)].

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

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

4. [GERMANY Oberlandesgericht Hamm 23 June 1998 (Furniture case)] (see full text of the decision).

5. Id. (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).

6. See the case in [ICC International Court of Arbitration, Award 8786 of January 1997 (Clothing case)].

7. See [ICC Court of Arbitration, Award 9117 March 1998 (Goods case)].

8. Id.

9. Id.

10. Id.; impliedly also [GERMANY Oberlandesgericht Hamm 23 June 1998 (Furniture case)].

11. [GERMANY Amtsgericht Oldenburg in Holstein 24 April 1990 (Fashion textiles case)].

12. [SWITZERLAND Tribunal Cantonal du Valais 28 October 1997 (Second hand bulldozer case)]. Another decision found that the seller delivered within a reasonable time despite the seasonal (Christmas-related) character of the goods: [SPAIN Audienca Provincial, Barcelona 20 June 1997 (Dye for clothes case)].

13. [GERMANY Oberlandesgericht Naumburg 27 April 1999 (Automobile case)].

14. [GERMANY Oberlandesgericht Naumburg 27 April 1999 (Automobile case)] (the court found that the 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).

15. See the Secretariat Commentary to (then) article 31, p. 31, para. 2; also [GERMANY Landgericht Oldenburg 27 March 1996 (Clothes case)]

16. [ICC International Court of Arbitration, Award 8786 of January 1997 (Clothing case)].

17. [GERMANY Landgericht Oldenburg 27 March 1996 (Clothes case)].

18. [ICC International Court of Arbitration, Award 8786 of January 1997 (Clothing case)] (the general conditions of the buyer, to which the parties had agreed, provided that any delay in delivery constituted a fundamental breach of contract).

19. [ICC International Court of Arbitration, Award 8786 of January 1997 (Clothing case)].

20. [GERMANY Oberlandesgericht Naumburg 27 April 1999 (Automobile case)] (see full text of the decision).

21. [ICC Court of Arbitration, Award 9117 March 1998 (Goods case)].


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