| See also: | UNCITRAL Digest cases plus added cases Above plus annotations and added material |
The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods [*]
A/CN.9/SER.C/DIGEST/CISG/33 [8 June 2004]
Reproduced with the permission of UNCITRAL
| ARTICLE 33
The seller must deliver the goods: |
DIGEST OF ARTICLE 33 CASE LAW
Meaning and purpose of the provision
1. Article 33 specifies the time within which the seller has to deliver the goods. In this respect one first has to look at the delivery date or period fixed in the contract thereby letting party autonomy prevail over the provisions of the Convention.[1] If no specific date or period can be inferred from the contract, article 33(c) fixes as default rule a reasonable time after the conclusion of the contract.
2. Although article 33 addresses merely the duty to deliver, its rules apply as well to other duties of the seller which have also to be performed at the date provided in the contract and, absent any such provision, within a reasonable time.
3. Article 33(a) presupposes that the parties have fixed a precise day for delivery [2] or that such date can be inferred from the contract (e.g., "15 days after Easter") or is determined by any usage or practice. In that case the seller has to deliver precisely on that fixed date.[3] Any delivery at a later time constitutes a breach of contract.
4. According to one court, 33(a) also covers the situation where the parties have not fixed a specific date of delivery but have agreed that the seller should deliver at the request of the buyer.[4] If the buyer, however, does not request delivery then the seller is not in breach.[5]
Fixed period for delivery (lit. b)
5. Article 338(b)
requires that the parties have fixed a period of time during which the goods
can be delivered or that such period can be inferred from the contract. The
seller then may deliver at any date during that period.
6. A period for delivery is, e.g., fixed by a contract provision "until: end December".[6] Any delivery between the conclusion of the contract and the end of December would conform to the contract while the delivery after December 31 would be constitute a breach of contract. The same is true if delivery is to be "effected in 1993-1994".[7] In that case, any delivery between January 1, 1993 and December 31, 1994 corresponds to a timely performance.[8] The right to choose the concrete date of delivery during the period rests generally with the seller.[9] For the buyer to be able to choose the delivery date, an agreement to that effect is necessary.[10] In one case, the contract provision for delivery "July, August, September + -" was understood to mean that one third of the shipment was to be delivered during each of the aforementioned months.[11]
7. Article 33(c) applies where neither the contract nor any usage or practice between the parties provides a specific time for delivery. The seller has then to deliver within a reasonable time. "Reasonable" means a time adequate in the circumstances. Therefore, delivery of a bulldozer two weeks after receipt of invoice and payment of first instalment has been held reasonable.[12] Where a contract is concluded in January and provides for delivery "April, delivery date remains reserved"[13] also a reasonable time has been held to apply since a concrete delivery date had never been fixed. In the case where the buyer had made clear that he was interested in delivery until March 15 the reasonable time has been held to end before April 11.[14]
8. Article 33 requires that the seller has performed in time all acts to which he is obliged under the contract or under articles 31, 32 or 34. Unless otherwise agreed upon article 33 does not require that the buyer be able to take possession of the goods on the date of delivery.[15]
9. Any delivery after the date or after the end of the period for delivery is a breach of contract to which the rules of the Convention on remedies apply. If the delivery date was essential then late delivery amounts to a fundamental breach and even avoidance of contract can be declared.[16] However, according to one court, a one day delay in the delivery of a small part of the goods does not constitute a fundamental breach even in case of a fixed date of delivery agreed upon the parties.[17] But the parties are always free to write into their contract that any delay of delivery is to be treated as a fundamental breach of contract.[18]
10. One arbitral tribunal held that the seller’s declaration that it would not be able to deliver the goods on time constituted an anticipatory breach of contract in the sense of article 71.[19]
11. The party asserting that a specific date or period for delivery has been agreed upon has to prove such agreement.[20] A buyer who asserts that it is to choose the actual date during a period of delivery must prove a respective agreement or circumstances evidencing that assertion.[21]
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. CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm 23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>].
2. See the example in [ITALY Corte di Appello [Appellate Court] Milano 20 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980320i3.html>] ("Delivery: 3rd December, 1990").
3. See also the Secretariat Commentary to (then) article 31, p. 31, para. 3.
4. CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm 23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>] (see full text of the decision).
5. Id. (in this case the seller had to deliver according to "delivery graphics" provided by the buyer. But the buyer did never provide those "graphics") (see full text of the decision).
6. See the case in [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>].
7. See the case in [ICC Court of Arbitration, case No. 9117 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/989117i1.html>].
8. Id.
9. Id..
10. Id.; impliedly also CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm 23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>].
11. CLOUT case No. 7 [GERMANY Amtsgericht [Lower Court] Oldenburg in Holstein 24 April 1990, available online at <http://cisgw3.law.pace.edu/cases/900424g1.html>].
12. CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 28 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971028s1.html>]. Also stating the reasonableness of the time of delivery despite the seasonal character of the Christmas goods: CLOUT case No. 210 [SPAIN Audienca Provincial [Appellate Court] Barcelona 20 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970620s4.html>].
13. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>].
14. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>] (the court found that the offer "March 15" was not materially altered by the acceptance "April, delivery date reserved". Since the offeror did not object to the terms of the acceptance, its contents became part of the contract according to art 19(2)).
15. See the Secretariat Commentary to (then) article 31, p. 31, para. 2; also [GERMANY Landgericht [District Court] Oldenburg 27 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960327g1.html>].
16. [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>].
17. [GERMANY Landgericht [District Court] Oldenburg 27 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960327g1.html>].
18. [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>] (in that case the agreed general conditions of the buyer provided that any delay of delivery constituted a fundamental breach of contract).
19. [ICC Court of Arbitration, case No. 8786 of January 1997, available online at <http://cisgw3.law.pace.edu/cases/978786i1.html>].
20. CLOUT case No. 362 [GERMANY Oberlandesgericht [Appellate Court] Naumburg 27 April 1999, available online at <http://cisgw3.law.pace.edu/cases/990427g1.html>] (see full text of the decision).
21. [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 July 21, 2005