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Legislative history of CISG article 34: Match-up with 1978 Draft to assess relevance of Secretariat Commentary
1978 Draft article 32
If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract.
CISG article 34
If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if 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.
The first sentence of CISG article 34 is identical to 1978 Draft article 32. The Secretariat Commentary on 1978 Draft article 32 should therefore be relevant to the interpretation of the first sentence of CISG article 34.
The second and third sentence of CISG article 34 are new. They conform CISG article 34 to CISG article 37. As stated in the Summary Records of Committee Meetings of the Vienna Diplomatic Conference:
Mr. SHORE (Canada), introducing [this amendment], said that the rationale of [CISG article 37] clearly suggested that the seller's right to cure non-conformity of documents relating to the goods. There was a close relationship with [CISG article 30 and 34] and his delegation's amendment aimed at explicating that link (Official Records, p. 309).
Honnold states that "the second and third sentences of [CISG article] 34 were added at the Conference to make clear that the seller's right to 'cure' a defective delivery of goods extended to the delivery of documents. [Under CISG article 37], a seller who has made a defective delivery before the date for delivery may deliver a 'missing part' or 'make up any deficiency in the quantity of the goods' of 'deliver goods in replacement' or 'remedy' (repair) the lack of conformity. This language dealt so specifically with the special problems of 'goods' that it seemed hazardous to rely on the assumption that references to delivery of 'goods' extended to 'documents.' The second and third sentences of [CISG article] 34 were modelled closely on the 'cure' provisions of [CISG article] 37 [which], will be generally applicable to the provisions of [CISG article] 34 with respect to 'cure' of defects in documents.... Cure of documents after the date for delivery is considered at [CISG article 48]..." (Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 2d ed. Kluwer 1991, p. 299).
The Secretariat Commentary on 1978 Draft article 32 should be read in conjunction with this explanation.
To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG