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LEGISLATIVE HISTORY

Legislative history of CISG article 38: Match-up with 1978 Draft to assess relevance to Secretariat Commentary


1978 Draft article 36

(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.

(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.

(3) If the goods are redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redispatch, examination may be deferred until after the goods have arrived at the new destination.

  

CISG article 38

(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.

(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.

(3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.


Editorial comments

The Secretariat Commentary on 1978 Draft article 36 remains relevant to the interpretation of CISG article 38. Paragraph (1) and (2) of these articles are identical. Paragraph (3) of CISG article 38 refers to redirection in transit as well as redispatch of the goods.

The Summary Records of Committee Meetings of the Vienna Diplomatic Conference contain the the following colloquoy on this subject: "THE CHAIRMAN [Mr. LOEWE (Austria)] asked what the distinction was between 'redirected in transit' and 'redispatched'. The words used in the French text seemed to be synonymous. Mr. FOKKEMA (Netherlands) said that was indeed true of the choice of words in the French text but in the English there was a distinction between the two terms used. 'Redispatched' implied that the goods had reached their first destination and had subsequently been sent on. 'Redirected in transit' implied that they had never reached their first destination". (Official Records, p.320.)

The Secretariat Commentary on 1978 Draft article 36 should be read in conjunction with this explanation.


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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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