Cite as Maskow, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 435-441. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision
The buyer's obligation to take delivery consists:
(a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and
(b) in taking over the goods.
1. History of the provision
1.1. - This article is patterned on Article 65 of ULIS. But while ULIS required «the buyer's doing all such acts as are necessary to enable the seller to hand over the goods», according to the Convention the buyer has to do «all acts which would reasonably be expected of him...». The Convention limits the scope of his obligation to take delivery. On the other hand, the term «to enable the seller to make delivery» as used in the Convention is broader and more exact than the reference in ULIS to handing over. Article 31 permits delivery to be effected by handing the goods over or by placing them at the buyer's disposal. Additionally, stylistic improvements were made and the arrangement of the article was made clearer.
1.2. - No amendments were made and no discussion took place concerning this article during the Vienna Conference.
2. Meaning and purpose of the provision
2.1. - The buyer's obligation to take delivery corresponds to the seller's obligation to deliver as provided in Article 30 of the [page 435] Convention and specified in sections I and II of Chapter II dealing with the seller's obligations. Important aspects of the obligation to take delivery are determined by the obligation to deliver. These relate to time and place of delivery and to the right to refuse taking delivery (see commentary on Article 53, supra, § §3.1.,3.2.).
The obligation to take delivery partly includes obligations which are not directly connected with the act of delivery or taking delivery in the narrow sense, therefore these obligations might be due at a different time or place as such acts occur. In such cases time and place for their performance must be determined according to the commercial necessities. This result may be based on the existence of practices or even usages according to Article 9 or eventually in a more abstract manner on the principle of good faith (Article 7(1)).
2.2. - Article 53 creates the general obligation of the buyer to take delivery. Article 60 specifies certain aspects of this obligation in a rather general manner. Article 60(a) mandates the buyer's preparation to put the seller in a position to make delivery, and Article 60(b) focuses on the actual act of the buyer's taking possession. The obligation to pay or to procure a security payment is not a component of the obligation to take delivery, but an independent obligation, although its performance is often linked with or even a prerequisite for taking delivery.
2.3. - The preparatory activities which have to be performed by the buyer are defined by two elements: first, they must be necessary «to enable the seller to make delivery», and second, they must be reasonably expected of the buyer.
This first criterion makes clear that only such activities which have an influence on the delivery itself are meant. Accordingly obligations of the buyer whose purpose is to enable production by the seller are not covered. This includes obligations to furnish technical drawings, designs, or formulae to deliver materials or components, and to specify the form, measurement or other features of the goods. This latter case is covered by Article 65 which makes it possible for the seller to produce or manufacture the goods and subsequently to deliver them, even [page 436] where the buyer does not fulfil his obligation to specify. The fulfillment of these obligations is primarily important for the manufacture or production of the goods, although it can also be decisive for delivery (e.g., from stock).
Some authors (e.g., SEVÓN, in SARCEVIC-VOLKEN, International Sale of Goods, 230) tend to include activities, being a presupposition for production in the obligation to take delivery. But this would mean that such obligations are imposed by law. However these obligations in many cases do not exist at all, while they can be quite numerous in others. Thus, such a conclusion might give rise to uncertainty and litigation. The obligations to enable production therefore should be construed as strictly contractual ones.
The second criterion indicates that the seller may not demand the buyer's doing such acts which have an exceptional character and were not known to the buyer, even if they are necessary to enable the seller to make delivery. Such acts could for instance be the submission of confirmation that the goods to be imported will not be re-exported, required by the authorities of the exporting country as a precondition for exportation.
2.4. - The obligation to take delivery doubtless includes performance of acts agreed upon by the parties either directly or by reference to such instruments as INCOTERMS, or which are prescribed by other articles of the Convention (including usages under Article 9). But these acts are manifold and Article 60(a) also covers acts not described in detail in any of the documents just mentioned. In other words, the buyer is not entitled to refuse to perform acts falling within the scope of Article 60(a) solely because they are nowhere indicated exactly. The most important acts of the buyer in preparation of delivery by the seller may be summarized in the following groups.
2.4.1. - The buyer may be obliged to deliver packing materials, labels, etc. This obligation requires an agreement between the parties. It is on the borderline between obligations to ensure the seller's production and obligations enabling him to deliver, since the packing may be part of the production process.
2.4.2. - The buyer is regularly obliged to give the seller certain information concerning delivery. Depending on the mode [page 437] of transport and the terms of delivery, the buyer may be obliged to give the seller the necessary instructions for dispatch (see, e.g., INCOTERMS F.O.R./F.O.T., B.1, F.O.B. airport, B.1) perhaps at the seller's request (e.g., INCOTERMS DELIVERED AT FRONTIER, B.5; DELIVERED DUTY PAID, B.5). Where the buyer is obliged to arrange transportation he must send the seller the necessary data on the means of transportation engaged by him in order to enable the seller to hand over the goods to the carrier (see inter alia INCOTERMS, F.A.S., B.1; F.O.B. B.1; F.O.B. airport, B.2; free carrier, B.1).
2.4.3. - In the drafting preparation of both ULIS (see HUBER and VON CAEMMERER, in DÖLLE, Einheitliches Kaufrecht, 195, et seq.) and the Convention (HUBER, UNCITRAL-Entwurf, 515) the question arose whether the obligation (or the right) of the buyer to call the goods off forms part of his obligation to take delivery. The answer seems to depend on the particular agreement of the parties. Where the buyer is to call off the goods within a certain period determined by the contract, but the seller is entitled to deliver them at least until the end of this period, this must be interpreted as a right of the buyer to determine the exact date of delivery or of partial deliveries within that period and not necessarily as a part of the buyer's obligation to take delivery. Such a call off may be combined with a particular kind of specification, different from that which is mentioned in Article 65. That means that the buyer may choose which goods, from a specification already agreed in the contract, have to be delivered at a certain date. But where the call off is a sine qua non for delivery it seems preferable to treat this duty as part of the obligation to take delivery.
2.4.4. - Sometimes it is the buyer's obligation to put at the seller's disposal the import license, exchange control authorization, or other permits to enable the seller to obtain the agreed transportation document (such as a through document of transport) (see INCOTERMS DELIVERED AT FRONTIER, B.8, according to which this has to be done at the seller's request). In other cases, the buyer has to render to the seller a reasonable amount of assistance to obtain the documents required in the country of importation for putting tbe goods there at the disposal of the [page 438] buyer (see INCOTERMS, DELIVERED DUTY PAID, B.7, according to which this also has to be done at the seller's request).
2.4.5. - In many international contracts, agreements on different kinds of inspections are found. Here we are concerned only with inspections to be made by the buyer or on his behalf or by inspection authorities of the country of importation but organized by the buyer. The obligation to arrange for such inspection should be agreed upon. It can seldom be derived from usages. Such an obligation may become part of the obligation to take delivery, if so agreed. In this case the buyer has to do such acts as sending the inspectors in due time, informing the seller about their intended arrival, instructing them to draw up the necessary documents. On the other, the seller also has important related obligations to facilitate the inspection.
2.5. - The second aspect of the obligation to take delivery, the taking over of the goods, requires the buyer to take physical possession of the goods. The taking over does not include acceptance of the goods or confirmation that they conform with the contractual stipulations. Consequently, the buyer is not prevented subsequently from relying on the lack of conformity.
On the other hand taking possession of the goods does not necessarily include taking them over. This is not the case, where the buyer has received the goods and intends to exercise his right to reject them. Then he is obliged to take reasonable steps to preserve the goods (Article 86(1)), which may entail his taking possession of them at least temporarily. If such taking possession of the goods does not constitute a taking over, the buyer must exercise his right to reject the goods as soon as possible (with appropriate notice to the seller). He must also refrain from any acts inconsistent with a rejection, in particular paying the price. Where the goods are placed at the disposal of the buyer at their destination and he has a right to reject them, in contradiction to the former case he has to exercise this right before he eventually takes possession in order to preserve them (Article 86(2)).
Whether the taking over effects a transfer of property in the goods is decided by national law (see Article 4(a)). [page 439]
2.6. - The most important of the buyer's acts in fulfilling his obligation to take over the goods can be summarized in the following groups.
2.6.1. - Taking physical possession of the goods may be accomplished in several manners. Where the goods are to be placed at the disposal of the buyer, he must take them (see INCOTERMS EX WORKS, B.1; EX SHIP, B.1; EX QUAI, B.1; DELIVERED AT FRONTIER, B.1). Unless the goods are placed at the buyer's disposal at their final destination, the buyer usually must provide the means of transportation agreed (see, e.g., INCOTERMS F.A.S., B.1, which includes this F.O.B., B.1; F.O.B. airport, B.2; free carrier, B.1). The buyer also has to take the goods when the contract does not involve carriage of the goods, but the seller is nevertheless obliged to arrange for their transportation (see INCOTERMS, F.O.R./F.O.T., B.2). When carriage is involved, the buyer has to receive the goods (see INCOTERMS, C.&F., B.2; C.I.F., B.2; FREIGHT CARRIAGE PAID TO, B.1; FREIGHT, CARRIAGE AND INSURANCE PAID TO, B.1).
2.6.2. - Where documents are required in order to enable the buyer to take delivery (as a bill of lading in sea transport), the obligation to take over the goods includes the obligation to accept the documents if tendered in conformity with the contract (see INCOTERMS C.&F., B.1; C.I.F., B.1).
2.6.3. - Where the taking over by the buyer is dependent on his paying custom duties and taxes, freight and unloading costs, these payments become part of the obligation to take over (see, e.g., INCOTERMS, F.A.S., B.2; C.&F., B.2,7; C.I.F., B.2,7; EX SHIP, B.5; DELIVERED DUTY PAID, B.2; F.O.B. airport, B.3; FREIGHT CARRIAGE PAID To, B.1,5; FREIGHT, CARRIAGE, AND INSURANCE PAID TO, B.1,5).
2.6.4. - Where licenses or other permits are required for taking the goods and the seller is not bound to obtain them, the buyer has to procure them (see, e.g., INCOTERMS, C.&F., B.8; C.I.F., B.8; EX SHIP, B.4; DELIVERED AT FRONTIER, B.6).
2.6.5. - The view has been expressed that providing assembly facilities may be part of the first element of the obligation [page 440] to take delivery (see SCHLECHTRIEM, UN-Kaufrecht, 75; Uniform Sales Law, 84). Normally this could only be part of the obligation to take over the goods, when it is especially agreed that they shall be taken over only after assembly. If the buyer fails to provide assembly facilities as agreed this does not necessarily prevent delivery, but taking over.
3. Problems concerning the provision
3.1. - The Convention does not say whether the buyer is obliged to give a receipt when he takes delivery. The question is without importance when handing over is effected by intermediaries, since generally standard documents are then used, giving sufficient evidence. If the goods are handed over directly between the parties and no other documents are used, the buyer may not refuse to give a receipt at the seller's request if the giving of such a receipt comes within the usage requirements of Article 9(2). [page 441]