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(1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery.
(2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.
1. There is no statutory provision in the provincial Acts corresponding to art. 52, and there is a surprising dearth of authority on the effect of an early delivery. Benjamin, op cit.[abbreviations section], para. 617, expresses the view that the buyer would not be obliged to accept the goods but that he would not necessarily be entitled to treat the contract as repudiated. This seems a sensible interpretation of the position and, assuming it is correct, the common law position and the position under art. 52(1) will be the same. In both cases, even though early tender or delivery of the goods has been refused, the seller should not be precluded from being able to make a further delivery at the correct time. Cf. art. 34, 37, supra.
2. Art. 52(2) is not the same as its provincial counterpart OSGA 29(2), since under the CISG provision the buyer can only reject the excess quantity whereas under the provincial Acts the buyer may elect either to retain the contractual quantity or to reject the whole consignment. However, the [Secretariat] Commentary p. 133, adds the important qualification that where it is not feasible for the buyer only to reject the excess quantity he may be entitled to reject the whole shipment if the delivery of the excess quantity constitutes a fundamental breach. If it does not, the buyer will be remitted to a claim in damages.
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