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Article 34. Handing Over Documents

TEXT OF 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.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

34A Seller's obligation to hand over documents

34A1 Obligation based on contract (see art. 9: usage and practices)

34B Cure by seller of non-conforming documents (see also art. 37)

34B1 Time for cure limited by contract

34B2 May not cause unreasonable inconvenience or expense

34C Buyer has right to claim damages (see arts. 74-77)

34D Other issues concerning documents


DESCRIPTORS

Delivery


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. For Art. 34, the UNCITRAL Digest cites five cases: two ICC arbitration awards, and one case each from Germany, Mexico and Switzerland.

Presented below is a composite list of Art. 34 cases reporting these UNCITRAL Digest cases and other Art. 34 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the March 1998 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.

Switzerland 19 May 2008 Cour supreme du canton [Appellate Court] Berne
 

Argentina 31 May 2007 National Commercial Court of Appeals, Division "A" (Sr. Carlos Manuel del Corazón de Jesús Bravo Barros v. Salvador Martínez Gares) [translation available]
 

China September 2006 CIETAC Arbitration Award [CISG 2006/14] (Spare parts case) [translation available]

Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International)

China February 2006 CIETAC Arbitration Award [CISG 2006/16] (Fluorite case) [translation available]
 

China 25 May 2005 CIETAC Arbitration Award [CISG 2005/09] (Iron ore case) 34A [translation available]
 

Belgium 26 May 2004 Rechtbank van Koophandel [District Court] Kortrijk
 

Germany 25 July 2003 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

Russia 6 June 2003 Arbitration Award No. 97/2002 34A [translation available]

Spain 24 March 2003 Audiencia Provincial [Appellate Court] Valencia
 

Germany 13 November 2002 Oberlandesgericht [Appellate Court] München

China 10 September 2002 Wuhan Maritime Court (Nanjing Resources Group v. Tian An Insurance Co. Ltd., Nanjing Branch) 34A [translation available]

Spain 12 February 2002 Audiencia Provincial [Appellate Court] Barcelona 34A [translation available]

Russia 24 January 2002 Arbitration Award No. 27/2001 34A [translation available]
 

Spain 15 June 2001 Audiencia Provincial [Appellate Court] Baleares [translation available]
 

China 4 June 1999 CIETAC Arbitration Award [CISG/1999/28] (Industrial raw material case) 34A [translation available]
 

Switzerland 30 November 1998 Handelsgericht [Commercial Court] Zürich [translation available]

* ICC March 1998 International Court of Arbitration, Case 9117 [English text]

Hungary 1998 Fovárosi Biróság [Metropolitan Court] Budapest
 

* Switzerland 12 August 1997 Kantonsgericht [District Court] St. Gallen

Hungary 1 July 1997 Fovárosi Bíróság [Metropolitan Court] [translation available]

Netherlands 17 June 1997 Gerechtshof [Appellate Court] Arnhem 34A

Russia 11 May 1997 Arbitration award 2/1995 34A1 [translation available]
 

China 18 November 1996 CIETAC Arbitration Award [CISG/1996/53] (Steel channels case) 34A [translation available]

Netherlands 20 June 1996 Arrondissementsrechtbank [District Court] Zutphen

* Mexico 29 April 1996 Compromex Arbitration award 34A [translation available]

* Germany 3 April 1996 Bundesgerichtshof [Supreme Court] [translation available]
 

* ICC March 1995 International Court of Arbitration, Case 7645 [English text]
 

China 11 April 1994 CIETAC Arbitration Award [CISG/1994/06] (Old paper case) 34C [translation available]
 

Germany 5 November 1993 Landgericht [District Court] Hamburg


UNCITRAL CASE DIGEST

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/34 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 34
Digest of Article 34 case law
-    Meaning and purpose of the provision
-    Documents relating to the goods
-    Handing over of documents
-    Non-conforming documents
-    Early tender of documents]
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.

DIGEST†OF†ARTICLE 34 CASE LAW

Meaning and purpose of the provision

1. The provision specifies the sellerís duty to deliver documents relating to the goods, where such an obligation exists.

2. According to the first part of article 34, the documents must be tendered as required by the contract. If the seller has delivered non-conforming documents before the agreed time, the seller has the right to cure the defects if this would not cause the buyer unreasonable inconvenience or expense. Despite the sellerís cure, the buyer is allowed to claim any remaining damages.

Documents relating to the goods

3. The provision refers generally to documents relating to the goods. What documents must be handed over is generally provided for in the contract, more so, when the contract has incorporated one of the Incoterms. In one case, the court concluded that under a FOB contract the seller is obliged to provide the buyer with an invoice stating the quantity and value of the goods.[1] Trade usages and practices between the parties may also indicate which documents are to be provided.

4. "Documents" in the sense of article 34 are mainly documents that give its holder the control over the goods, such as bills of lading, dock receipts, warehouse receipts,[2] but also insurance policies, commercial invoices, certificates of origin, weight, contents or quality or the like are covered.[3]

5. It has been found that the seller is generally not obliged to procure customs documents for the export of the goods, unless otherwise agreed upon by the parties.[4]

Handing over of documents

6. The place, time and manner of handing over of the documents has to comply with the contract.[5] Where Incoterms are agreed upon, they will often fix these modalities. With regard to the Incoterm CFR ("cost, freight"), one arbitral tribunal decided that that clause does not render time (for the handing over of documents) essential to the contract.[6] If neither the contract nor trade usages nor practices between the parties provide for specific modalities of handing over the documents then the seller must tender the documents "in such time and in such form as will allow the buyer to take possession of the goods from the carrier when the goods arrive at their destination, bring them through customs into the country of destination and exercise claims against the carrier or insurance company."[7]

Non-conforming documents

7. The handing over of non-conforming documents constitutes a breach of contract to which the normal remedies apply.[8] Provided the breach is of sufficient gravity it can also amount to a fundamental breach and allow the buyer to declare the contract avoided.[9] However, delivery of non-conforming documents (false certificate of origin and faulty certificate of chemical analysis) has been found not to constitute fundamental breach if the buyer itself can easily cure the defect by requesting correct documents from the producer.[10]

Early tender of documents

8. Article 34 grants the seller a right to cure any defects up to the delivery time as long as the buyer is not caused unreasonable inconvenience or expense. The cure may be executed by delivery of conforming documents.[11]


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. [MEXICO Compromex Arbitration Award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>].

2. Secretariat Commentary to (then) article 32, p. 31, para.†2; see also CLOUT case No. 216 [SWITZERLAND Kantonsgericht [District Court] St. Gallen 12 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970812s1.html>] (see full text of the decision).

3. CLOUT case No. 171 [GERMANY Bundesgerichtshof [Supreme Court] 3 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960403g1.html>] (certificate of origin and certificate of analysis); see also Secretariat Commentary to (then) article 32, p. 31, para.† 2.

4. CLOUT case No. 216 [SWITZERLAND Kantonsgericht [District Court] St. Gallen 12 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970812s1.html>].

5. See also [ICC Court of Arbitration, case No. 7645 of March 1995, available online at <http://cisgw3.law.pace.edu/cases/957645i1.html>].

6. Id.

7. Secretariat Commentary to (then) article 32, p. 31, para. 3.

8. CLOUT case No. 171 [GERMANY Bundesgerichtshof [Supreme Court] 3 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960403g1.html>].

9. Id.

10. Id.

11. [ICC Court of Arbitration, case No. 9117 of March 1998, available online at <http://cisgw3.law.pace.edu/cases/989117i1.html>].


Pace Law School Institute of International Commercial Law - Last updated August 31, 2009
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