Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 25 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequences of the Official Text, e.g., article 25 [draft counterpart of CISG article 27].
To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a validation of citations to this Secretariat Commentary. This match-up indicates that article 25 of the 1978 Draft and CISG article 27 are substantively identical.
Text of the Secretariat Commentary on article 25 of the 1998 Draft
[draft counterpart of CISG article 27] [Delay or error in communication]
PRIOR UNIFORM LAW
ULIS, article 14 and 39(3), ULF, article 12(2).
1. Article 25 [draft counterpart of CISG article 27] states that the risk of delay or error in the transmission of any notice, request or other communication under Part III of this Convention or its failure to arrive is to be borne by the addressee [see footnote 1]. This rule applies if the communication is given [or made] "in accordance with Part III [this Part of the Convention] and by means appropriate in the circumstances."
2. There may be more than one means of communication which is appropriate in the circumstances. In such a case the sender may use the one which is the most convenient for him.
3. A communication is appropriate "in the circumstances, if it is appropriate to the situation of the parties. A means of communication which is appropriate in one set of circumstances may not be appropriate in another set of circumstances. For example, even though a particular form of notice may normally be sent by airmail, in a given case the need for speed may make only electronic communication, telegram, telex, or telephone, a means appropriate "in the circumstances".
4. The general rule that the risk of delay, error or loss in respect of a communication is to be borne by the addressee arises out of the consideration that it is desirable to have, as far as possible, one rule governing the hazards of transmission. Acceptance of a generalized receipt theory would have required that the Convention contain supporting procedural rules to establish whether a notice had in fact been received by the addressee since legal systems which operated on the theory that notices were effective on dispatch often did not contain such supporting rules. However, Part III of the Convention contains exceptions to this rule in cases where it was considered that communication ought to be received to be effective [see footnote 2] (OFFICIAL RECORDS, p. 27).
[Unless otherwise expressly provided, "Article 27 adopts a dispatch theory for communications under this Part of the Convention as contrasted with the receipt rule adopted under Part II.... Part II is concerned with communications during the formative phase of a contract where neither party has committed a breach. Article 27 only applies after a contract has been concluded and where, generally speaking, a breach has occurred." Jacob Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods" (July 1981), p. 74). As an example of how this operates, ULIS Article 39(3) states "Where ... a notice of lack of conformity ... has been sent by .. appropriate means, the fact that such notice is delayed or fails to arrive at its destination shall not deprive the buyer of the right to rely thereon." This rule is preserved by CISG Article 27.]
1. Part II of the Convention contains special rules dealing with the time of effect of communications and other indications of intention made during the formation process. See, in particular articles 19 and 22 [draft counterpart of CISG articles 21 and 24].
2. Articles 43(2), 44(4), 59(2), 61(1), 62(2) and 65(4) [draft counterpart of CISG articles 47(2), 48(4), 63(2), 65(1), 65(2) and 79(4)].