Cite as Lando, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 245-248. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
1. History of the provision
2. Meaning and purpose of the provision
The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.
1. History of the provision
1.1. - The 1935, 1939 and 1956 Drafts presented the obligations of the seller in several articles. Article 20 of the 1956 Draft provided for the seller's duty to deliver the goods, Article 59 for his duty to hand over the documents and Article 62 for his obligation to transfer the property in the goods. The remedies for breach of each of these obligations were set out in separate articles following the provisions presenting each of these duties.
1.2. - ULIS changed this system by setting out in one article the obligations of the seller. Article 18 established that the seller «shall effect delivery of the goods, hand over any documents relating thereto and transfer the property in goods, as required by the contract and the present Law». Thereby, all the elements of due performance were gathered in Article 18. In a definition of delivery Article 19(1) prescribed that delivery (French délivrance) consisted of the handing over of goods which conformed with the contract. However, this definition led to difficulties. Délivrance was only effected if the goods conformed with the contract. So, if defective goods were handed over there was no délivrance, even though the buyer had used or resold the goods. Furthermore, the passing of risk was tied to délivrance. Risk passed to the buyer when delivery of the goods was effected. [page 245] Again, if defective goods had been delivered the risk did not pass to the buyer. This result was untenable in several situations. It was artificial to maintain that no delivery had taken place when the buyer had accepted the goods, when -- because the defect was not fundamental -- the buyer was obliged to accept the goods, when the buyer could not reject the goods because he had failed to give timely notice of the defect, or where the seller had cured it. In such cases ULIS had to make exceptions to the rule and to give délivrance retroactive effect to the moment when the seller handed over the goods to the carrier or to the buyer. There were other flaws in the ULIS concept of delivery (see commentary on Article 31, infra). In ULIS as in previous drafts, the remedies for breach by the seller of each of his obligations were, provided in separate articles. ULIS set up five «sets» of remedies for the five possible kinds of breach.
1.3. - The Vienna Convention following the UNCITRAL Draft Convention simplified the system. The seller's obligations are presented in Article 30, which is almost identical to Article 18 of ULIS. However, delivery is not defined, as it is in Article 19(1) of ULIS. Article 31 describes the acts which constitute the seller's obligation to deliver the goods; the duty to deliver goods in conformity with the contract is not included. The passing of risk is not tied to délivrance, although risk generally passes to the buyer when the seller does those acts which his duty to deliver comprises. Finally, under the present Convention a unified set of remedies applies when the seller fails to perform any of his obligations. The same approach is followed for the buyer's obligations.
Article 30 presents the elements of due performance. The seller must deliver the goods, hand over any documents and transfer the property. Articles 31 to 34 then lay down what the seller must do in order to deliver the goods and hand over the documents. Likewise, Article 45 lists the remedies for breach of any of the seller's obligations, and Articles 46 to 52 provide a unified set of remedies for breach of these obligations.
This approach is more practical than the one provided in ULIS. However, the statement of the seller's obligations in Article 30 does not include delivery of goods which conform with the contract. Article 30, therefore, does not contain all the [page 246] elements of due performance, whereas Article 45 which sums up the remedies for breach of contract by the seller gives the remedies for every kind of breach including delivery of defective goods.
2. Meaning and purpose of the provision
2.1. - As an introduction to Chapter 2 of Part III of the Convention dealing with the obligations of the seller, Article 30 gives the essence of these obligations. They are to deliver the goods, to hand over any documents relating to them and to transfer the property in the goods as required by the contract and the Convention. The purpose of Article 30 is pedagogical: to state the elements of due performance by the seller and to state that these elements are set out in the contract -- which is paramount -- and in the Convention.
2.2. - The acts which the seller must do in order to deliver the goods and to hand over the documents are laid down in Articles 31 to 34. However, the passing of property and the acts which the seller must do in order to transfer title to the buyer are not treated by the Convention. Article 4(b) provides that the Convention is not concerned with the effects which the contract may have on the property in the goods sold. This question is left to the law applicable under the conflict-of-laws rules of the forum. Under most legal systems property passes when the parties agree that it shall pass. If nothing has been agreed between the parties the rules on the passing of property differ from country to country. Under the common law property in specific goods passes when the contract is made. Property in generic goods passes when they are appropriated to the contract. Goods are generally considered to be appropriated to the contract when they are handed over to a carrier for transmission to the buyer. Danish, Italian and French law and several legal systems under the French family of laws apply similar rules as concerns the buyer's priority in the goods over the creditors of the seller.
Other legal systems presume that property passes when the buyer or somebody authorized to act for him takes possession of the goods. This presumption has been adopted in the Federal [page 247] Republic of Germany, the Netherlands, Switzerland, Sweden, Greece, Spain and Brazil. This means that in some legal systems goods under carriage have become the property of the buyer, whereas in other systems they may sometimes remain the property of the seller until they are handed over to the buyer.
Conflict-of-law rules regarding the passing of title also vary from country to country. A widely adopted principle is that title passes under the law of the place where the goods are situated (the lex situs). This means that title, once acquired by the buyer under the lex situs, remains with him. If under the laws of the place where the goods are situated title passes with the making of the contract, title does not pass until they are carried into a country where title then remains with the buyer even if the goods are handed over to the buyer. Conversely, property in goods coming from a country where the buyer did not acquire title with the making of the contract to a country where title is transferred with the contract, will pass as soon as the goods cross the frontiers of that country. There are exceptions to this principle. For goods which are in transit or whose situs is unknown at the time of the making of the contract the law of the place of destination should, it is submitted, decide when title passes. [page 248]