| See also: | UNCITRAL Digest cases plus added cases Above plus annotations and added material |
The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods [*]
A/CN.9/SER.C/DIGEST/CISG/37 [8 June 2004].
Reproduced with the permission of UNCITRAL.
| ARTICLE 37
If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. |
Overview and case law
1. Article 37 of the CISG deals with deliveries made by the seller before the date specified in the contract. The first sentence of article 37 specifies that, in the case of a delivery of insufficient quantity, the seller can cure by "deliver[ing] any missing part" or by "mak[ing] up any deficiency in the quantity of the goods delivered." In the case of a delivery of goods deficient in quality, the seller can cure by delivering replacement goods [1] or by "remedy[ing] any lack of conformity in the goods delivered."[2] The second sentence of article 37 specifies that the buyer retains any right to damages provided by the Convention, although the amount of such damages presumably must reflect any cure accomplished by the seller under the first sentence of the provision. The second sentence of article 37 was invoked by an arbitral tribunal where a seller had made a delivery of confectionary products before the buyer had furnished a banker’s guarantee required by the contract.[3] Although the buyer accepted the delivery, it failed to pay for the goods, arguing that the seller had breached the contract by delivering before the guarantee was in place and that this default should be considered a fundamental breach of contract justifying the buyer’s non-payment. The arbitral tribunal, however, ruled that the breach by the seller did not permit the buyer to refuse to pay, noting that under the last sentence of article 37 the buyer could claim damages for any losses caused by the early delivery.
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. A seller’s right under article 37 to deliver goods to replace non-conforming goods should be compared to a buyer’s right under article 46(2) of the CISG to require the seller to deliver goods in substitution for non-conforming goods.
2. A seller’s right under article 37 to "remedy" non-conforming goods should be compared to a buyer’s right under article 46(3) of the CISG to require the seller to repair non-conforming goods.
3. CLOUT case No. 141 [RUSSIA Arbitration Award case No. 200/1994 of 25 April 1995 available at <http://cisgw3.law.pace.edu/cases/950425r1.html>].
Pace Law School Institute of International Commercial Law - Last updated July 21, 2005