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Cite as Lando, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 257-260. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 32

Ole Lando

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

ARTICLE 32

(1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods.

(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.

(3) If the seller is not bound to effect insurance in respect of the carriage of the goods, he must, at the buyer's request, provide him with all available information necessary to enable him to effect such insurance.

1. History of the provision

     1.1. - A rule similar to that of Article 32(1) was introduced in the 1956 Draft (Article 21(2)). Article 19(3) of ULlS provided that the seller who had delivered goods not clearly marked with an address or otherwise identified to the contract had to send to the buyer a notice of the consignment, and, if necessary, some document specifying the goods. The UNCITRAL Draft Convention and the present Convention made a few drafting changes and brought this provision together with other provisions regarding the seller's obligations in connection with the carriage of the goods.

     1.2. - The 1935 and 1939 Drafts established that a seller who ought to know that it is customary to effect transport insurance must provide the buyer with all information necessary for effecting such insurance. This rule exists under Anglo-American [page 257] law (see e.g., Section 32(3) of the United Kingdom Sale of Goods Act 1979). The 1956 Draft restricted this duty to cases in which the buyer had requested such information and deleted the «ought-to-know» part of the provision. The 1956 Draft also provided in a new sub-paragraph, in accordance with the common law; that a seller who is to arrange for carriage of the goods must make such contracts as are necessary to effect carriage on the usual conditions and by the usual means of transportation (see Section 32(2), first sentence of the United Kingdom Sale of Goods Act 1979; § 2-504(a) of the United States Uniform Commercial Code). Both provisions were included in Article 54 of ULIS under the section «Other obligations of the seller». The UNCITRAL Draft Convention and this Convention brought them together with the provision on the seller's duty to identify the goods in the section «Delivery of the goods and handing over of documents».

2. Meaning and purpose of the provision

     2.1. - Article 32 contains various duties of the seller in connection with carriage of the goods.

Trade terms will often impose duties upon the seller of the same kind as those laid down in Article 32(1) and (2). When a particular trade term is silent or ambiguous as to the requirements for identification of the goods; or the necessary contracts of carriage, the provisions in Article 32 should apply as stop-gap rules.

          2.2.1. - Article 32(1) sets out the seller's duty to identify the goods to the contract when he hands them over to a carrier. It envisages that a clear identification is usually effected in the documents issued by the carrier, notably in the bill of lading, or by marking the goods. If the goods are not identified in either of these ways «the seller must give the buyer notice of the consignment specifying the goods».

          2.2.2. - Article 32(1) does not provide when the notice must be given. Some trade terms impose upon the seller a duty to give notice to the buyer without delay after the goods have been [page 258] delivered or loaded on board a vessel (see, e.g., INCOTERMS F.O.B., A.2). It is not clear from the Convention when notice must be given if this is not provided in the contract. However, it seems to follow from the general principles upon which the Convention is based (see Article 7(2)) that the seller must give notice within a reasonable time after delivery. Under the circumstances, this may be a very short time.

It follows from Article 67(2) and 69(3) that the risk does not pass to the buyer until the goods are clearly identified to the contract, and for this identification a notice to the buyer may be required. Futhermore, the seller's failure to give notice in time is a breach of contract which may render the seller liable for damages and -- if the breach is a fundamental one -- give the buyer the right to avoid the contract (see Article 45).

          2.2.3. - The Convention does not provide for a duty to give notice of the consignment in cases other than those mentioned in Article 32(1). A notice of dispatch, however, is often prescribed by trade terms (see, e.g., INCOTERMS F.O.B., A.2 and C.I.F., A.4) and may also follow from usage.

          2.3.1. - The Convention does not state explicitly whether a seller who is to hand over the goods to a carrier also has to arrange for their carriage, that is, to find an appropriate means of transportation and to make a contract with the carrier. However, such a duty generally follows from the contract when the seller has agreed to send the goods to the buyer.

When the seller is bound to arrange for carriage of the goods, Article 32(2) obliges him to make such contracts which are necessary for appropriate carriage. He must choose the usual route or, if no usual route exists, the most direct one. He must avoid unnecessary trans-shipment or unloading and unusual exemption clauses. Trade terms such as C.&F. and C.I.F. contain provisions covering the seller's duties in these respects; when applicable, they supersede the provisions of Article 32(2) (see § 2.1., supra).

Failure by the seller to perform the duties provided for in the contract or in Article 32(2) is a breach of con'tract for which the remedies provided in Article 45 are available. [page 259]

     2.4. - Unless the contract provides otherwise the seller has no duty to procure insurance. However, Article 32(2) imposes on the seller the duty to provide the buyer with all available information that he requests and is necessary to enable the buyer to effect insurance for the transport of the goods. In some trades, usage will oblige the seller to give such information to the buyer even without the latter's request.

Article 32(3) should also apply when a trade term is used which does not explicitly impose on the seller the duty to procure the information necessary for the insurance (see, e.g., INCOTERMS F.O.B. and C.&F.). The failure to give the requested information is a breach of contract (see §§ 2.2.2., 2.3.2., supra, and Article 45 infra).

3. Problems concerning the provision

     3.1. - The most important omission in Article 32 is that it does not provide when the seller has to give notice to the buyer of the consignment (see § 2.2.2., supra). [page 260]


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