Published by Manz, Vienna: 1986. Reproduced with their permission.

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3. "Dispatch" Principle (Article 27)

All that is required to make effective any notice, request or other communication mentioned in Part II is for the notice to be sent by a means appropriate to the circumstances. Receipt is not necessary unless the law expressly provides otherwise.[216] The provision therefore contains two qualifications for the operative effect of communications. First is the appropriateness of the means of communication. The provision corresponds to Article 14 of ULIS and to Article 12(2) of ULF, but the substitution of "appropriate" for "usual" allows the communicator greater flexibility in the choice of the means of communication.[217] The (second) provision that dispatch is generally sufficient, and that the burden for the delay or loss of the notice during its transmission falls upon the addressee comes as a surprise to the German jurist who is used to the principle of receipt. One advantage of the rule is that at least a clear and unequivocal solution has been found for the question which was generally left open by ULF and ULIS.[218] Since Article 27 is optional, the parties are also at liberty to set other requirements, such as receipt for communications to be effective. Even absent explicit agreement, usages or practices established between the parties can modify the principle stated in Article 27. The idea underlying the principle and the exceptions in Article 27 is that the risk for transmitting a message should be carried by the one who, as a result of his deviation from normal performance, caused the statement to be sent.[219] This is persuasive, for example, in the case of a notice of defects, since the [page 61] seller is responsible for ensuring that the quality of goods conforms to the contract. On the other hand, an avoidance does not always have to be motivated by a disruption in performance for which the other side is responsible. It can also be caused by force majeure, which cannot be attributed to either party. In such cases the basic idea behind Article 27 cannot convincingly support apportioning the risk of transmission to the addressee.

Unfortunately, Article 27 does not include a rule for oral declarations. The wording - "transmission of the communication" and "failure to arrive" - makes it clear, however, that the Article refers only to messages transmitted by means similar to correspondence. On the basis of Article 7, it can be assumed that an oral declaration must be intelligible to those present or on the telephone; a statement that is not intelligible or not perceptible to the addressee has not been communicated by appropriate means.[220][page 62]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

216. The Convention provides that the notice is effective upon receipt in the following provisions: Articles 47(2) sentence 1, 48(2) and (3) in conjunction with 48(4), 63(2), 65(2), 79(4).

217. The unusual notification by messenger can be appropriate where there are special circumstances, such as a strike by postal or telegraph employees.

218. Cf. Noussias, Die Zugangsbedürftigkeit von Mitteilungen nach den Einheitlichen Haager Kaufgesetzen und nach dem UN-Kaufgesetz (1982).

219. See A/Conf. 97/C.1 SR.13 at 5 § 22 (= O.R. 303) (position of the Norwegian delegate).

220. Although the West German motion (A/Conf. 97/C.1/L.65= O.R. 100) to make Article 27 applicable to the formation of the contract - in order to include within its scope the offeror's objection under Article 19(2) - was rejected, a later editorial change in Article 19(2), on the basis of another West German proposal, produced the same result.

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