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Cite as Date-Bah, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 226-231. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 27

Samuel K. Date-Bah

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

ARTICLE 27

Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the comminication.

1. History of the provision

     1.1. - This article is based on Artide 10(3) of the text adopted by the Working Group, as follows:

If a notice of avoidance or any notice required by Article 23 is sent by appropriate means within the required time, the fact that the notice fails to arrive or fails to arrive within such time or that its contents have been inaccurately transmitted does not deprive the sender of the right to rely on the notice (Yearbook, VII (1976), 90).

     1.2. - When this text was considered by the Commission, it accepted a proposal to widen the scope of the provision to cover not only the notices mentioned in the draft text but also all communications under the Convention, except those in relation to which the rule was explicitly excluded. The provision thus came to embody a general rule on the risk of delay, error or loss of communication under the Sales Draft as approved by the Commission (see Yearbook, VIII (1977), 16). At that time, the draft dealt with sales only and did not yet embody rules on the formation of contracts. The text as adopted by the Commission in 1977 at its tenth session was as follows:

Unless otherwise expressly provided in this Convention, if any notice, request or other communication is given by a party in accordance with this Convention and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does [page 226] not deprive that party of the right to rely on the communication (Yearbook, VIII (1977), 16).

     1.3. - When the Sales Draft was merged with the Formation Draft by the Commission at its eleventh session, the article emerged as Article 25 (see Yearbook, IX (1978), 16). Since this rule was intended to apply to only the sales part of the Convention and not to the rules on formation, the opening clause of the article was redrafted to read as follows: «Unless otherwise expressly provided in Part III of this Convention ...».

     1.4. - The antecedents of this provision are Article 14 and 39(3) of ULIS. Article 14 read:

Communications provided for by the present Law shall be made by the means usual in the circumstances.

Article 12(2) of ULFC was in pari materia with this provision of ULIS. Article 39 of ULIS dealt with the notice of lack of conformity governed in the Convention also by 39. Article 39(3) made provision for the risk of delay or loss of such notice in the following terms:

Where any notice referred to in paragraph 1 of this Article has been sent by letter, telegram or other 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.

     1.5. - At the Vienna Conference, this article excited no controversy. Indeed, it was adopted almost without debate. Only one delegation made a statement; that delegation had reservations as to the appropriateness of the «dispatch theory» embodied in the article (see Official Records, II, 206).

2. Meaning and purpose of the provision

     2.1. - This article. makes notices and other communications required under the Sales Part of the Convention effective on dispatch. That such notices may be delayed or incorrectly transmitted or lost is irrelevant. The addressee of the notice bears the risk of such delay, error or failure to arrive. It is to be [page 227] emphasized, however, that this rule applies to notices, requests or other communications given or made by a party to the contract in accordance with Part III of the Convention, which deals with the substantive obligations and remedies of buyers and sellers. It is not to be confused with the acceptance by dispatch rule of the common law. That rule relates to the formation of contracts, dealt with in Part II of the Convention, where a contrary rule is in fact provided (Article 18(2) adopts a receipt theory for when acceptances become effective).

     2.2. - For the dispatch rule embodied in Article 27 to apply to notices, requests and other communications, they must have been given or made «by means appropriate in the circumstances». There is thus a change from the ULIS approach of «usual» means to «appropriate» means. Hence, while ULIS seemed to leave the matter entirely to usage, the Convention would not, it would appear, automatically accept usage but would appraise it against the standard of appropriateness. If the mode usually employed would be inappropriate in the particular case, then the use of that mode will not bring the article into effect.

     2.3. - Furthermore, the notice, request or other communication must have been given or made in accordance with Part III of the Convention, before the dispatch rule can apply to them. For instance, if a buyer receives non-conforming goods and he gives notice which does not specify the nature of the lack of conformity and this notice is not sent within a reasonable time, as required by Article 39, then this notice would not have been given in accordance with Part III of the Convention. Accordingly, an error in transmission of this notice or loss of the notice in the course of transmission would not change the legal position that the buyer cannot rely on the defective notice that he has given.

     2.4. - Returning to the notion of «means appropriate in the circumstances», this would appear to be a flexible, balancing-approach formula. One examines the actual circumstances surrounding the parties to the transaction before determining what means used by the party giving notice can qualify as appropriate. As the Secretariat's Commentary states by way of illustration of this proposition: «For example, even though a particular, form of [page 228] 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» (Official Records, I, 27). To elaborate on this example, the case may be one of a mail strike. Such a case will also illustrate that the article does not entail that there be only one appropriate means in any given circumstance. In a mail strike the notice could be sent by telephone, telex or even by personal courier.

     2.5. - If the two conditions discussed above of, first, compliance with the provisions of Part II of the Convention and second, the use of means appropriate to the circumstances, are fulfilled, then a delay or error in the transmission of the communication or its failure to arrive is said not to deprive the party sending the communication of the right to rely on the communication. In other words the risk of delay, error in transmission or loss of such communication are placed squarely on the addressees of such communications. The rationale for this rule is given succinctly in the Report of UNCITRAL in 1977. In summarizing the argument of the proponents of the provision which eventually became the present Article 27, the Report states:

It was pointed out that the proposal would ensure errors in transmission or lost or delayed transmission would be treated uniformly throughout the Convention. Furthermore, a clear rule governing hazards of transmission was very important since the terminology governing the giving of notices varied considerably throughout the Convention. [The draft Convention text] dealt with only two situations which could give the impression that the varying terminology used throughout the Convention implied varying rules concerning whether communications must be received or merely sent (Yearbook, VIII (1977), 32).

It followed, then, that in the interest of certainty one uniform rule should be adopted and so the dispatch rule was adopted. It should be noted, however, that this rule is not a mandatory one and the parties may by express agreement vary it. Also, although Article 27 embodies the general rule, it is subject to exceptions specifically created in Part III of the Convention. For example, Article 79(4) creates an exception requiring receipt of the notice from the non-performing party of an impediment. [page 229]

     2.6. - As regards why a dispatch rule rather than a receipt rule was adopted, the delegation of Norway offered the following explanation at the Vienna Conference:

Whenever a party was called upon to give notice to comply with a duty or to obtain relief from a loss, it was unreasonable to make that party responsible for delay or error in transmission or failure of the communication to arrive (the «dispatch» theory). On the other hand, when the purpose of the notice was to create an obligation for the other party, that party should not be penalized as the result of delay, error, or failure to arrive and the «receipt» theory should be applied instead of the rule in Article (27) (Official Records, II, 303).

It is true that most of the notices or requests provided for in Part III of the Convention fall within the first category described by the Norwegian delegation. It therefore makes sense for a dispatch rule to be applied to them.

3. Problems concerning the provision

     3.1. - If a notice or request is sent by a mode of transmission appropriate in the circumstances and complies with Part III of the Convention, but is in a language known by the party sending it to be incomprehensible to the addressee, is this a problem within the purview of Article 27? It could be argued that «means appropriate in the circumstances» should be construed expansively to include a language appropriate in the circumstances, since language is a means through which communication is effected. On the othcr hand, the phrase «means appropriate in the circumstances» could be interpreted restrictively to refer exclusively to modes of transmission of the communication, such as letters, telegrams, telexes, telephone calls and other such means. The latter view would seem to be preferable. Discussions of the provision at UNCITRAL and at the Vienna Conference were clearly based on the assumption that «means» here refers to modes of transmission of the communication and not to the language in which it is communicated.

     3.2. - Is there then a gap in the Convention? Can parties defeat the purpose of notice requirements by communicating the [page 230] notice in a language incomprehensible to the addressee of the notice? It is believed that there is no gap here. Dealing with this problem outside of the ambit of Article 27 does not create a gap in the Convention. The contract between the parties will determine explicitly the language in which communications relating to the contract are to be made. Article 8 of the Convention, which sets out rules of interpretation, will help judges and arbitrators to determine what language was contemplated by the contracting parties as the language to be used in notices, requests or other such communications. [page 231]


Pace Law School Institute of International Commercial Law - Last updated January 19, 2005
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