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Cite as Bianca, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 290-294. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 37

Cesare Massimo Bianca

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision


If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.

1. History of the provision

     1.1. - Article 37 lays down the principle which acknowledges the seller's right to change or mend the delivered goods in order to conform them to the contract, provided that the date of delivery is still pending.

The direct antecedent of this may be found in Article 37 of ULIS, which declared substantially the same rule. The Convention principle, however, has a wider formulation and, further, makes clear that the seller's right to conform the goods with the contract does not prevent the buyer from claiming damages.

     1.2. - The Convention rule, as expressed in Article 37, has been adopted without raising strong objections. The final text is identical with the UNCITRAL Draft Convention, save for a minimal difference in wording.

An amendment submitted by the delegation from Canada would have inserted after the words «conformity in the goods delivered», the words «or any documents relating thereto» (A/Conf.97/C.1/L.116). The Canadian amendment was adopted by the first Committee after an intense discussion which showed two different kinds of objections. The first one opposed the [page 290] Canadian amendment owing to the difficulty of timing, considering that the documents may play an important role before the delivery date.

The second kind of objection did not question the seller's right also to remedy the documents, but the place where to state this right, considering that the framework of section II, including Article 37, provided for references only in relation to conformity of the goods and third party claims. Moreover, to accept a reference to documents here would have raised the problem of similar references in other provisions of the same section.

A possible alternative solution, orally suggested by the delegation from the United States, was to omit the overspecific reference to goods in the examined article. But the solution was not accepted, probably because it might have left open the question of whether the seller could cure the lack of conformity of documents.

The Canadian amendment, instead, was adopted by the majority of the First Committee, though there remained concern about the right place to insert the addition. This concern found a proper answer in the Final Draft, which retained the reference to the seller's right to cure lacks of conformity in the documents. This reference, however, was inserted in Article 32 (now Article 34), dealing with the seller's obligation to hand over documents relating to the goods.

     1.3. - Article 37 finds no specific antecedents in the European Civil Law codes and the principle which it expresses is not generally accepted, mainly because the delivered goods are already outside of the disposal powers of the seller (see, e.g., STUMPF, in DÖLLE, Einheitliches Kaufrecht, 281). The Convention rule, anyway, is consistent with a growing need for fairness and good faith in national and international trade.

2. Meaning and purpose of the provision

    2.1. - Until the date of delivery Article 37 allows the seller to integrate the delivered goods with any missing part, to make up any deficiency in their quantity, or to deliver other goods in replacement of the defective ones, or to remedy any lack of conformity in them. [page 291]

The seller's right to deliver a missing part or a missing quantity or the goods is self-evident, and perhaps it does not strictly need special mention. The possibility given to the seller, by the contract or the buyer, to anticipate the delivery means indeed that the seller is entitled to deliver the goods up to the fixed time. Consequently, the fact that the seller takes advantage of this possibility cannot prevent him from completing the delivery as long as the time for the delivery has not expired. For the buyer, of course, it might be inconvenient to receive a fractionated delivery, but generally this inconvenience cannot justify the buyer's refusal of missing parts of the already delivered goods.

Instead, the seller's right to substitute the delivered goods or to remedy a lack of conformity in them is not so obvious. The replacement or the repair, indeed, touches goods already in the buyer's possession (and, normally, property). These rights mean, for the buyer, an extra burden to cooperate with the seller in order to let him, and the persons entrusted by him, take away the goods or examine and repair them.

The express rule of Article 37 was therefore necessary to acknowledge these rights of the seller. The rule, while favouring the seller's interest to perform his obligation exactly, coincides with the buyer's interest to an exact performance, and puts a limit only where the cure of the lack of conformity would exceptionally cause unreasonable inconvenience or expense to the buyer.

     2.2. - Article 48 allows the seller the possibility of curing the lack of conformity even after the date for delivery. But this possibility is restricted, mainly because after that date there is a seller's delay which could amount to a fundamental breach.

     2.3. - The purpose of Article 37, as we have seen, is to entitle the seller to cure the lack of conformity until the date of delivery; i.e., until the final date fixed for the seller's performance. It has been noted that in contracts of sale involving carriage of the goods, the seller may cure the lack of conformity until the date by which he is required to hand over the goods to the carrier (Secretariat's Commentary, Official Records, I, 33). Otherwise, if the contract fixes the date by which the goods must reach the buyer, the seller may cure the lack of conformity up to that date (for instance, with a supplementary shipment). [page 292]

     2.4. - According to Article 52(1) the buyer may refuse to take delivery of the goods if the seller delivers them before the date fixed. Article 37 presupposes then, either that the contract has fixed the date for the seller's benefit (the seller may deliver when he wants up to that date) or that the buyer has not refused an earlier performance, though he might have. This provision does not concern, on the contrary, the case where the parties have agreed to change the date of delivery. In this case the new date replaces the old one, and the seller may cure afterwards the, lack of conformity only under Article 48(1).

     2.5. - The seller's right to cure any lack of conformity prior to the date for delivery meets a limit when its exercise would cause unreasonable inconvenience or expense to the buyer.

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 inconveniences 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.

The cure of a lack of conformity must not cause, either, an excessive expense to the buyer. But in this regard 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 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.

     2.6. - An implied limit of the seller's right to cure the lack of conformity is the inadequacy of the cure. The seller is not allowed to initiate a remedy which is not proper to restore the goods to a fully sound condition.

3. Problems concerning the provision

     3.1. - A first problem, which does not find an express solution in the provision, regards the buyer's right to retain the goods. The problem arises where the handing back of the goods [page 293] to the seller disadvantages the buyer. In point of fact the goods may need to be handed back to the seller in order to allow their replacement or their repair but, on the other hand, the restitution could leave the buyer with no goods, even if they were defective, and with no security to recover the price already paid.

The proper remedy for this prejudice to the buyer is to acknowledge his right to refuse the handing back of the goods when the seller does not offer to replace them immediately or does not give a proper guarantee for their restitution and for damages.

     3.2. - Another problem not expressly dealt with by Article 37 concerns the legal consequences of a buyer's groundless refusal to let the seller cure the lack of conformity. As the refusal impedes the curing of the lack of conformity, this lack must be ascribed to the buyer, who can no more claim it to be a breach of contract. The buyer, of course, may have second thoughts and later allow the seller to cure the lack of conformity (see STUMPF, in DÖLLE, Einheitliches Kaufrecht, 281), provided that this reconsideration comes forth when the seller is still able to cure it. [page 294]

Pace Law School Institute of International Commercial Law - Last updated January 28, 2005
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