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 35 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 35 [draft counterpart of CISG article 37].
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 35 of the 1978 Draft and CISG article 37 are
Text of Secretariat Commentary article 35 of the 1978 Draft
[draft counterpart of CISG article 37] [Cure of lack of conformity prior to date for delivery]
PRIOR UNIFORM LAW
ULIS, article 37.
1. Article 35 [draft counterpart of CISG article 37] deals with the situation in which the seller has delivered goods before the final date which the contract prescribes for delivery but his performance does not conform with the contract [see footnote 1]. It would be possible to say that the decision whether the seller's performance conforms to the requirements of the contract shall be made once and for all at the time delivery has been made. However, article 35 [draft counterpart of CISG article 37] provides that the seller may remedy the non-conformity by delivering any missing part or make up any deficiency in the quantity of the goods, by delivering replacement goods which are in conformity with the contract, or by remedying any non-conformity in the goods [see footnote 2].
2. The seller has the right to remedy the non-conformity of the goods under article 35 [draft counterpart of CISG article 37] only until the "date for delivery". After the date for delivery his right to remedy is based on article 44 [draft counterpart of CISG article 48]. In those international sales which involve carriage of the goods, unless the contract otherwise provides, delivery is effected by handing over the goods to the first carrier [see footnote 3]. Therefore, in those contracts, the date until which the seller may remedy any non-conformity of the quantity or quality of the goods under article 35 [draft counterpart of CISG article 37] is the date by which he was required by the contract to hand over the goods to the carrier.
3. The seller's right to remedy any non-conformity is also limited by the requirement that his exercise of that right does not cause the buyer either unreasonable inconvenience or unreasonable expense.
Example 35A: The contract required Seller to deliver 100 machine tools by 1 June. He shipped 75 by an appropriate carrier on 1 May which arrived on 15 June. He also shipped an additional 25 machine tools on 30 May which arrived on 15 July. Seller remedied the non-conformity by handing over these machine tools to the carrier before the contract date for delivery of the 100 machine tools, 1 June.
Example 35B: If the contract in Example 35A did not authorize Seller to deliver by two separate shipments, Seller could remedy the original non-conformity as to quantity only if receiving the missing 25 machine tools in a later second shipment did not cause Buyer "unreasonable inconvenience or unreasonable expense".
["(W)hereas some national laws require agreement between the parties or permission by the buyer for delivery in parts or installments, under the Convention the seller who did not ship the complete consignment in the first case may supplement his delivery up to the date" for delivery even without such permission, provided, however, it does not cause the buyer unreasonable inconvenience or unreasonable expenses ..." Fritz Enderlein,in Sarcevic & Volken ed., "The Vienna Sales Convention: History and Perspective [Dubrovnik Lectures] Oceana (1986), p. 164).]
Example 35C: On arrival of the machine tools described in Example 35A at Buyer's place of business on 15 June and 15 July, the tools were found to be defective. It was too late for Seller to cure under article 35 [draft counterpart of CISG article 37] because the date for delivery (1 June) had passed. However, Seller may have a right to remedy the lack of conformity under article 44 [draft counterpart of CISG article 48].
Example 35D: The machine tools described in Example 35A were handed over to Buyer by the carrier prior to 1 June, the contractual delivery date. When examined by Buyer the tools were found to be defective. Although Seller had the ability to repair the tools prior to the delivery date, he would have had to do the work at Buyer's place of business. If Seller's efforts to remedy the lack of conformity under such circumstances would cause "unreasonable inconvenience or unreasonable expense" to Buyer. Seller would have no right to effect the remedy (OFFICIAL RECORDS, pp. 33-34).
[Bianca elaborates as follows: "Unreasonable is an inconvenience exceeding in" an intolerable way the normal prejudice brought about to the buyer by the replacement or repair of the goods. An example of such inconvenience would be if the goods had to be delivered to the seller's place of business and the buyer could not arrange to take away the missing" quantity at a convenient time." C.M. Bianca, in Bianca-Bonell Commentary, Milan: Giuffrè (1987), p. 293. "If the buyer has chosen a date because the ship he ordered under a FOB clause will call at the port at that date, it may be difficult for him to provide another ship at a later date. This is [also] an example of the inconvenience mentioned in Art. 37." Fritz Enderlein. Dubrovnik Lectures. p. 163. Herber notes that "The mention of expense [to the buyer] in Article 37] could perhaps be misleading because it seems to be necessary that every expense caused by such measures is to be borne by the seller." Rolf Herber, "Rules of the Convention Relating to Buyer's Remedies in Cases of Breach of Contract", Potsdam Colloquium, August 1979, Oceana 1980), p. 114. Bianca also states "it must be pointed out that it is the seller who has to pay for curing the lack of conformity, and that the buyer is entitled to recover the expenses he might have advanced. The limit [i.e., that seller cannot exercise his right to cure in a way that causes buyer either unreasonable inconvenience or unreasonable expense] means, therefore, that the seller (while it is up to him to decide whether to meet the expense) cannot demand that the buyer advance him a appreciable amount of money." R.M. Bianca, Bianca-Bonell Commentary, p. 293. Enderlein points out "There is ... a difference between inconvenience and expense. Whereas the Convention does not permit unreasonable inconvenience and unreasonable expense for the buyer, consistently using the notion 'unreasonable' in both cases, the inconvenience rests with the buyer but the expenses, even the reasonable ones, may be claimed from the seller as damages." Fritz Enderlein, Dubrovnik Lectures, p. 165.]
1. The buyer is not required to take delivery of the goods prior to the delivery date: article 48(1) [draft counterpart of CISG article 52(1)].
2. In order for the seller to be made aware of any non-conformity so that he can effectively exercise his right of remedy, the buyer is required by article 36 [draft counterpart of CISG article 38] to examine the goods within as short a period as is reasonable in the circumstances and by article 37 [draft counterpart of CISG article 39] to give the seller notice of the non-conformity.
3. Article 29(a) [draft counterpart of CISG article 31(a)]. For the point of time at which risk of loss passes, see article 79 [draft counterpart of CISG article 67] and commentary to that article.