Cite as Will, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 379-382. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
1. History of the provision
2. Meaning and purpose of the provision
(1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery.
(2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.
1. History of the provision
1.1. - Article 52 deals with two situations in which the buyer may take or refuse delivery at his choice: early delivery (paragraph (1)) and delivery of excess quantity (paragraph (2)). These two. cases do not have great practical importance.
1.2. - The rule in Article 52(1) originated in the 1893 United Kingdom Sales of Goods Act. It also appeared in ULIS. An express provision that the accepting buyer may reserve the right to claim damages appeared unnecessary.
1.3. - The rule in Article 52(2) is well-known in national and international commercial law and trade practice. More extensive rights of the buyer, as can be found in the United Kingdom Sales of Goods Act (rejection of the whole delivery), were not included in Article 47 of ULIS nor in the UNCITRAL Draft Convention proposal; the latter was adopted without change (Official Records, II, 211, 428).
2. Meaning and purpose of the provision
Delivering too early and too much is no less a breach of contract than delivering too late and too little (see Articles 33 and 35(1)). [page 379]
2.1. - Article 52(1) gives the buyer the choice between acceptance and rejection of the goods delivered too early.
2.1.1. - Early delivery means that the goods were delivered before the date fixed. But what is the «date fixed»? This can imply a certain day of the year or a given period of time. If not expressly fixed, it must be determined according to Article 33 (as to «delivery» see Articles 31 et seq.).
2.1.2. - The purpose of giving the buyer a choice is to prevent his suffering disadvantages caused by the seller's early delivery. If the buyer were forced to accept the goods early, this might cause him inconvenience and expense in storing them longer than anticipated (see Secretariat's Commentary, Official Records, I, 44). The buyer must be able to rely on the date fixed in the contract in order to take delivery. Also, where the date of payment is linked to the date of delivery, early delivery would force early payment.
The language of paragraph (1) seems to suggest the buyer's complete freedom of choice. But that is by no means certain.
2.1.3. - The freedom of refusing delivery is necessarily restricted by the obligation to observe good faith (Article 7(1)). But where is the line drawn? One commentator maintains that, under Article 29 of ULIS, the buyer must not refuse when this would entail substantial losses for the seller and «no good reasons» appear to justify such refusal (see MERTENS-REHBINDER, Internationales Kaufrecht, Article 29, No. 2), while another commentator rejects any additional restrictive criterion (see HUBER, in DÖLLE, Einheitliches Kaufrecht, Article 29 No. 9). This controversy reappears in a much less sophisticated mahner, when the Secretariat's Commentary remarks «that the buyer must have a reasonable commercial need» (Official Records, I, 44) long after a proposal restricting refusal to situations of «unreasonable inconvenience or unreasonable expense» for the buyer, had been rejected (see Yearbook, VI (1975),81, 102).
Having to prove «need» would place an unwarranted burden upon the buyer and its justification is found neither in Article 7(1) nor in the spirit of the Convention, which seeks a fair balance between the interests of both parties. [page 380]
2.1.4. - If the buyer rightly refuses to take de1ivery, the seller is obliged to remove the goods and redeliver at the proper date.
But this does not relieve the buyer from his obligation to mitigate the seller's losses. Where the elements of Article 86(2) are present, the buyer is obliged to take possession of the goods on behalf of the seller (see Secretariat's Commentary, Official Records, I, 44). Taking possession without taking delivery requires immediate notification of the seller, according to Article 27, so as to avoid an erroneous conclusion of tacit acceptance of delivery.
2.1.5. - If the buyer accepts delivery, this can mean two different things. Either the contract is tacitly modified (Article 29), the parties having accepted the prior date as one contractually fixed. In this case the buyer may not claim damages. Or, the buyer accepts delivery even though the stipulated date has not yet arrived. In this case he may claim damages, for example for storage. Unlike under Article 29 of ULIS, a reservation at the time of delivery of this right to claim damages is unnecessary (see Yearbook, IV (1973), 43).
2.2. - Article 52(2) gives the buyer a choice between acceptance and rejection of the excess amount delivered.
2.2.1. - Excess amount means that the seller simply delivered more of the stipulated kinds of goods than was ordered, contrary to his obligation under Article 35(1). A buyer who retains the goods without objection is deemed to have accepted the whole (Article 39) and must pay at the contract rate. He has no choice. Nor does a buyer who gives notice within a reasonable time have a choice as to the stipulated amount: he must take delivery.
Solely when it is legally impossible to take delivery of only the contract amount, as for instance where the whole shipment travels under one single bill of lading (see Secretariat's Commentary, Official Records, I, 44), may the buyer choose to reject the whole if he avoids the contract by showing fundamental breach (Article 49(1)). If he decides not to avoid the contract or if fundamental breach cannot be shown, the buyer has to accept the total shipment but may claim damages according to Article 45(1)(b). [page 381]
2.2.2. - What are the consequences of the buyer's choice? If the buyer, accepts the whole or part of the excess amount or simply fails to give notice according to Article 39, he has to pay for the excess not at the market rate, but at the rate stipulated in the contract (Article 52(2)). The proposal to modify the text so that the buyer should have to pay at no more than the contract rate (see Official Records, I, 119) was rejected, as this is already implied in Article 6. By derogating from the Convention and the effects of Article 52(2) both parties may fix a price below that of the contract rate. Article 52(2) provides that in any case the buyer need not pay a price higher than that stipulated in the contract. Therefore, in the case of rising market prices the buyer is well advised to accept the whole amount delivered; in the case of falling market prices he is well advised to negotiate with the seller or to refuse the excess.
If the buyer refuses to accept the excess amount, he may claim damages for costs of storing or costs caused by the separation of the goods.
2.2.3. - The purpose of these rules is to save both parties commercial losses. Acceptance of the whole saves the seller from having to remove the excess amount and to look for another buyer. It therefore saves him expenses. The buyer is well protected by this right to choose. The rules appear to be a good example of respecting the interests of both parties in a well-balanced way. [page 382]