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Cite as Barrera Graf, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 620-624. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 86

Jorge Barrera Graf

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

ARTICLE 86

(1) If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances. He is entitled to retain them until he has been reimbursed his reasonable expenses by the seller.

(2) If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided that this can be done without payment of the price and without unreasonable inconvenience or unreasonable expense. This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination. If the buyer takes possession of the goods under this paragraph, his rights and obligations are governed by the preceding paragraph.

1. History of the provision

     1.1. - The antecedents of Article 86 may be found in Article 92 of ULIS (Article 104 of the 1963 Draft). Two modifications of the ULIS text should be mentioned. Article 92(1) of ULIS referred to the buyer's intention to reject the goods received in general terms, whereas Article 86(1) of the Convention specifies that the rejection be carried out in accordance with the contract and the Convention itself. Contrary to Article 92(2) of ULIS which was silent on this point, Article 86(2) of the Convention expressly states that if the buyer takes possession of the goods under this paragraph, his rights and obligations are governed by Article 86(1).

2. Meaning and purpose of the provision

     2.1. - Art. 30 of the Convention refers to the seller's obligations to deliver the goods and the documents which relate to [page 620] them, and to transfer the property of the goods. Article 86 contemplates two situations with regard to the obligation to deliver the goods: that in which the buyer has received them and intends to reject them (paragraph (1)), and that in which the buyer has not yet received the goods although they have been shipped and ultimately are placed at his disposal at the point of destination, and the buyer then exercises his right to reject them (paragraph (2)). The first situation presupposes physical possession of the goods by the buyer, the second, merely that the goods have been placed at his disposal. In this second situation, the buyer is according to Article 86(2) required to take possession of the goods on behalf of the seller.

The conditions and the manner pursuant to which the goods must be delivered to the buyer are governed first, by the provisions of the contract; and secondly by the provisions of the Convention regarding place (Article 31), manner (Article 32), time (Article 33) of delivery, and whatever obligation may be imposed on the seller to deliver documents, in addition to the goods (Article 34).

     2.2. - On the other hand, the goods must correspond to whatever is specified in the contract with respect to quality, quantity and description, and must be packaged in the manner required by the contract.

Article 86(1) presupposes that the seller has delivered and the buyer has received the goods, but that the latter intends to reject them due to the seller's breach, as provided in Article 45. Breach by the seller may lie in delivery not in accordance with the agreement or with the provisions of the Convention with respect to place, e.g., that delivery is made on board the ship when it arrives at its point of destination, and not at the place specified by the buyer. Similarly, the manner of delivery may be faulty, e.g., the merchandise is not identified by the seller as provided in Article 37(1) or delivery is not made on the agreed upon date either because the seller did not deliver the documents specified in the contract or because in the judgment of the buyer the goods did not correspond to what was provided in the contract.

In any of these situations, an obligation is imposed on the buyer to take reasonable steps to preserve the goods. The buyer also obtains the right to retain the goods until he has been reimbursed by the seller for his reasonable expenses. [page 621]

     2.3. - Article 86(1) speaks of a buyer who «intends to exercise his right ... to reject the goods received». Therefore, the intention of the buyer is central. The provision requires that the buyer manifest his intention at the moment of receipt of the goods.

          2.3.1. - With respect to the failure of the goods to conform with specifications, Article 39(1) of the Convention requires that the buyer who wishes to reject them do so within a reasonable time after he has discovered or ought to have discovered the deficiency. The seller should be notified at that time, specifying the nature of the lack of conformity. According to Article 39(2), the buyer loses the right to reject the goods if he does not give the seller notice thereof at the latest within two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee (which may be more or less than those of two years). Thus, the obligation of the buyer to preserve the goods and his right to retain them commences the moment he discovers the lack of conformity and decides to reject, and such right continues to the extent of and according to the conditions set forth in Article 39.

     2.4. - In contrast to Article 86(1), which presupposes receipt of the goods by the buyer and hence their physical possession, Article 86(2) envisages that the goods have been dispatched to the buyer and that they have been placed at his disposal at their destination; in other words, that the buyer does not have physical possession of the goods. It imposes the duty on the buyer, in order to exercise the right to reject the goods, of taking possession of them for the account of the seller, provided this can be done without payment of the price and without unreasonable inconveniences or unreasonable expense.

          2.4.1. - The shipment of the goods arises from the seller's obligation to deliver (Article 30). This must occur according to the agreement by the parties, or, absent such agreement, in accordance with Article 31.

          2.4.2. - Placing the goods at the disposal of the buyer must occur at the place of destination. If such place is different from [page 622] the one to which the goods should have been shipped, the buyer would be justified in rejecting them. This also applies if the seller has otherwise defaulted in delivery (Articles 31 to 34), or the goods do not conform with specifications (Articles 35 to 40), or a default exists with respect to the transfer of title (Articles 41 to 43).

          2.4.3. - The right of the buyer to reject the goods presupposes that he takes possession of them on behalf of the seller, but as stated in Article 86(2), if the seller or a person authorized by him to take charge of the goods on his behalf is present at the destination, this provision does not apply.

          2.4.4. - With respect to the time at which the buyer must exercise his right to reject the goods, the solution of Article 86(1) (see § 2.3., supra) is not the same as that of Article 86(2). Exercise of the right to reject must occur simultaneously with the goods being placed at the buyer's disposal. Yet, if the goods have hidden defects, or are not in accordance with specifications as indicated in Article 35, and the buyer is unaware of this fact, he cannot reject the goods at that moment and hence Article 86(2) would not apply either.

          2.4.5. - Taking possession of the goods on behalf of the seller implies that the seller who is in default, not the buyer, is their owner; that the buyer cannot dispose of the goods by their use or consumption, or making the goods his own or transmitting them to a third party (except for the right to sell contemplated in Article 88); and that he must preserve the goods and has the right to retain them until he is reimbursed by the seller for the reasonable expenses incurred. This is indicated in the last sentence of Article 86(2), which was added at the Vienna Conference (Official Records, II, 399-400).

The obligation imposed on the buyer of taking possession of the goods on behalf of the seller exists unless the delivery is conditioned upon payment of the stipulated price, or such taking of possession involves unreasonable inconvenience or expense for the buyer.

     2.5. - If the seller or a person authorized by him is present at the place of destination, Article 86(2) does not apply since the seller [page 623] would receive the goods which the buyer wishes to reject. In this situation, Article 85 would apply. Only if the seller or his agent is not present and the buyer receives the goods and then intends to reject them, would Article 86(1) apply.

3. Problems concerning the provision

     3.1. - The Convention does not establish a period for rejection of the goods by the buyer for reasons other than their failure to conform with specifications (Article 39(1)). The term may be fixed by applicable usages (Article 9). In their absence, the principles of Article 43 could be applied by analogy. That is, notice to the buyer must be given within a reasonable time after the buyer has become aware or ought to have become aware of the right to reject. [page 624]


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