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Cite as Lando, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 265-267. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 34

Ole Lando

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

ARTICLE 34

If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if 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. - The 1939 and 1956 Drafts set out a duty for the seller to hand over the documents relating to the goods in accordance with usages, and to do so with due diligence and as quickly as possible. At the 1964 Hague Conference the provision was reduced to a reference to what is provided in the contract or follows from usage:

Where the seller is bound to hand over to the buyer any documents relating to the goods, he shall do so at the time and place fixed by the contract or by usage (Article 50 of ULIS).

This provision was carried over in the present Convention with minor drafting changes.

The second and third sentences of Article 34 were added at the Vienna Conference (see Official Records, I, 158). Their purpose is to clarify that the seller's right to cure a defective delivery of documents is the same as his right to cure defects in the goods as provided in Article 37.

2. Meaning and purpose of the provision

     2.1. - The duty in Article 34 covers all documents relating to the goods, including those which give the buyer the control over [page 265] them, such as bills of lading, and other documents. When trade terms are used they often prescribe which documents are to be handed over. Thus the documents required by C.I.F. are: a clean negotiable bill of lading, an invoice of the goods shipped, an insurance policy (see INCOTERMS C.I.F., A.7), and certificate of origin and the consular invoice (see INCOTERMS C.I.F., A.12). Furthermore, INCOTERMS C.I.F., A.12 provides that the seller must at the buyer's request, risk and expense render assistance to him in obtaining any other document issued in the country of shipment and/or origin and which the buyer may require for the importation of the goods into the country of destination. Such a duty to assist in procuring the documents is not provided for in Article 34.

     2.2. - The documents must be handed over to the buyer at the time and place and in the form required by the contract. If the contract is silent, usage often provides an answer. If there be no usage, the principle of good faith (see Article 7(1)) probably requires that the seller hand over the documents at such time and in such form as will enable the buyer to obtain the goods from the carrier when they arrive, and to bring them through customs.

     2.3. - The draftsmen of ULIS and of this Convention found it necessary to provide a rule as to the seller's duty to hand over the documents as a companion to the rules on the duty to deliver the goods. However, they did not extend this duty beyond what follows from the contract and usage.

In contrast, the second and third sentence added in Article 34 on the seller's right to cure defective documents will also apply in cases in which the contract and usage are silent as to whether he has this right. The rules are the same as those provided for the goods in Article 37. They have the same purpose of saving the contract when curing a defective performance will not cause the buyer unreasonable inconvenience or unreasonable expense. The right to cure in Article 34 exists only when the seller has handed over defective documents before the time required in the contract, and lasts only until that time. It should be noted that the rule provided in Article 48 on the seller's right to cure a failure to perform any of his obligations after delivery also applies to defective documents. [page 266]

3. Problems concerning the provision

     3.1. - Article 34's first sentence may create some doubts by providing that the seller must hand over documents relating to the goods [at] the time and place and in the form required by the contract. The true meaning of the provision must be that if the contract is silent, usages and good faith must provide the answer (see 2.2., supra). [page 267]


Pace Law School Institute of International Commercial Law - Last updated January 27, 2005
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