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GUIDE TO CISG ARTICLE 52

Secretariat Commentary (closest counterpart to an Official Commentary)


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 48 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequence of the Official Text, e.g., article 48 [draft counterpart of CISG article 52].

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 48 of the 1978 Draft and CISG article 52 are identical.


Text of Secretariat Commentary on article 48 of the 1978 Draft
[draft counterpart of CISG article 52]   [Early delivery; delivery of excess quantity]

PRIOR UNIFORM LAW

ULIS, articles 29 and 47.

COMMENTARY

1. Article 48 [draft counterpart of CISG article 52] deals with two situations where the buyer may refuse to take delivery of goods which have been placed at his disposal.

Early Delivery, Paragraph (1)

2. Article 48(1) [draft counterpart of CISG article 52(1)] deals with the situation where goods have been delivered to the buyer to the buyer before the delivery date fixed pursuant to article 31 [draft counterpart of CISG article 33]. If the buyer were forced to accept these goods, it might cause him inconvenience and expense in storing them longer than anticipated. Furthermore, if the contract links the day payment is due to the day delivery is made, early delivery will force early payment with consequent interest expense. Therefore, the buyer is given the choice of taking delivery of the goods or refusing to take delivery of them when the seller delivers them prior to the delivery date.

[Enderlein & Maskow state: "If the buyer takes early delivery, this may constitute a modification of the contract in regard to the period for performance (see Article 29). In such a case the buyer will also have to perform his obligations at an earlier date ... There is no time limit for refusing to take delivery, but the goods are considered received when no notice is given pursuant to Article 39 (Will, [Bianca-Bonell Commentary, p. 381]." Fritz Enderlein & Dietrich Maskow, "International Sales" [Enderlein & Maskow Commentary], Oceana (1992) pp. 200, 201.]

3. The buyer's right to take delivery or to refuse to take delivery is exercisable upon the fact of early delivery. It does not depend on whether early delivery causes the buyer extra expense or inconvenience [see footnote 1].

4. However, where the buyer does refuse to take delivery of the goods under article 48(1) [draft counterpart of CISG article 52(1)], according to article 75(2) [draft counterpart of CISG article 86(2)] he will still be bound to take possession of them on behalf of the seller if the following four conditions are met: (1) the goods have been placed at his disposal at their place of destination, (2) he can take possession without payment of the price, e.g., the contract of sale does not require payment in order for the buyer to take possession of the documents covering the goods, (3) taking possession would not cause the buyer unreasonable inconvenience or unreasonable expense, and (4) neither the seller nor a person authorized to take possession of the goods on his behalf is present at the destination of the goods.

5. If the buyer refuses to take early delivery, the seller is obligated to redeliver the goods at the time for delivery under the contract.

6. If the buyer does take early delivery of the goods, he may claim from the seller for any damages he may have suffered unless, under the circumstances, the acceptance of early delivery amounts to an agreed modification of the contract pursuant to article 27 [draft counterpart of CISG article 29] [see footnote 2].

["As far as the obligation of the buyer to examine the goods under Art. 38 is concerned, in case of early delivery it has to be taken into account that the buyer might not be ready and that due to this circumstance the period 'as short as practicable' might be somewhat longer ..." Fritz Enderlein, in Sarcevic & Volken ed., "The Vienna Sales Convention: History and Perspective", Oceana (1986), p. 198). Enderlein & Maskow state: "If he is not ready yet to receive the goods, e.g. in regard to the examination of the goods as required pursuant to Article 38, he should declare a relevant reservation when taking delivery. According to Schlechtriem ... the buyer is not obligated to examine the goods prior to the contractual date for delivery." Enderlein & Maskow Commentary, p. 200.]

Excess Quantity, Paragraph (2)

7. Article 48(2) [draft counterpart of CISG article 52(2)] deals with the situation where an excess quantity of goods has been delivered to the buyer.

8. Unless there are other reasons which justify the buyer's refusal to take delivery, the buyer must accept at least the quantity specified in the contract. In respect of the excess amount, the buyer may either refuse to take delivery or he may take delivery of some or all of it. If the buyer refuses to take delivery of the excess quantity, the seller is liable for any damages suffered by the buyer. If the buyer takes delivery of some or all of the excess quantity he must pay for it at the contract rate.

9. If it is not feasible for the buyer to reject only the excess amount, as where the seller tenders a single bill of lading covering the total shipment in exchange for payment for the entire shipment, the buyer may avoid the contract if the delivery of such an excess quantity constitutes a fundamental breach. If the delivery of the excess quantity does not constitute a fundamental beach or if for commercial reasons the buyer is impelled to take delivery of the shipment, he may claim any damages he has suffered as a result (OFFICIAL RECORDS, p. 44).


FOOTNOTES

1. Nevertheless, the buyer must have a reasonable commercial need to refuse to take delivery since article 6 [draft counterpart of CISG article 7(1)] requires the observance of good faith in international trade.

[Will also states "The freedom of refusing delivery is necessarily restricted by the obligation to observe good faith (Article 7(1)). "But he also asks, "where is the line drawn? One commentator maintains that under Article 29 of ULIS, the buyer must not refuse when this would entail substantial losses for the seller and 'no good reasons' appear to justify such refusal (see Mertens-Rehbinder, Internationales Kaufrecht Article 29, No. 2), while another commentator rejects any additional restrictive criterion (see Huber in Dölle, Einheitliches Kaufrecht, Article 29, No. 9). This controversy reappears in a much less sophisticated manner when the Secretariat's Commentary remarks 'that the buyer must have a reasonable commercial need' ... long after a proposal restricting refusal to situations of 'unreasonable inconvenience or unreasonable expense' for the buyer had been rejected (see Yearbook, VI (1975) 81,102). Having to prove 'need' would place an unwarranted burden upon the buyer and its justification is found neither in Article 7(1) nor in the spirit of the Convention which seeks a fair balance between the interest of both parties." Michael R. Will, Bianca-Bonell Commentary, Milan: Giuffrè (1987), p. 380.]

2. Article 48(1) [draft counterpart of CISG article 52(1)] does not refer to the buyer's right to seek damages. However, the buyer's right to damages is a general right under article 41(1)(b) [draft counterpart of CISG article 45(1)(b)].


Pace Law School Institute of International Commercial Law - Last updated August 30, 2006
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