(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.
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Sevón states: "Where the contract of sale involves carriage of the goods and the buyer participates in the arrangements for the carriage, the extent of the buyer's obligations depends on the type of arrangements. The obligation covers the duty to enter into a contract of carriage. It might also cover obligations relating to the loading of the goods and their storage during carriage or at the destination." Lief Sevón,"Obligations of the Buyer under the Vienna Convention on the International Sale of Goods", 106 Juridisk Tidskrift (Suomen Lainopillinen Yhdistys) 337 (1990).
Tallon states: " '[A]cts which could reasonably be expected of [the buyer] in order to enable the seller to make delivery' … may include providing for carriage, for unloading, and for containers, according to the means of transportation prescribed, and also compliance with administrative formalities, such as obtaining an import license, when these are the responsibility of the buyer." Denis Tallon, in: Galston & Smit ed., "International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender (1984), p. 7-7.
Ziegel states: "The meaning of ... 'which could reasonably be expected of him' could cause some difficulty if the phrase is interpreted to mean those steps it is within the buyer's power to take as contrasted with those acts of cooperation that are 'necessary' to enable the seller to discharge his delivery obligations." Jacob S. Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods" (July 1981), p. 123.
Maskow states:"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 to the buyer whose purpose is to enable production by the seller are not covered. …" Dietrich Maskow, in Bianca-Bonell Commentary, Giuffrè: Milan (1987), p. 436.
Similarly, Enderlein & Maskow state: "Although the obligation to take delivery, specifically the obligation to perform preparatory acts, already comprises an important part of the buyer's participatory obligation, it does by far not include all, so that the participatory acts are to be distinguished from the other obligations of the buyer (Article 62). This is of relevance, for instance, because in the event of a breach of the obligation to take delivery, the seller, by setting a NACHFRIST (Article 64, paragraph 1, subpara. (b)) which is not honoured, may create a condition for the avoidance of the contract which formally can be easily verified ... The obligation to take delivery in our view does not comprise, in particular, the obligation to participate in the manufacture of the goods, like supplying technical drawings, recipes, models ..., tools, auxiliary supplies, etc". (Enderlein & Maskow Commentary, p. 232).
Sevón disagrees. He states: "The extent of the obligation to take delivery is not defined in great detail. It clearly covers obligations relating to the transmission of the goods from the seller to the buyer. It is less clear whether this obligation also covers the duty to provide information relevant to the production of the goods. This issue, which is partially covered by Article 65, is relevant with respect to the remedies available to the seller in cases of breach of obligation. It may be assumed that the obligation to enable the seller to make delivery covers these situations too. …" Lief Sevón in Sarcevic & Volken ed., "The Vienna Sales Convention: History and Perspective" [Dubrovnik Lectures], Oceana (1986), p. 230.*
* In a later commentary, Sevón qualifies this conclusion somewhat. He states: "The obligation to take delivery clearly covers obligations relating to the transmission of the goods from the seller to the buyer. It is less clear whether this obligation also covers the duty to provide information relevant to the production of the goods or to perform other acts at an earlier stage than the actual transmission of the goods. This issue, which is partially covered by Article 65, is relevant with respect to the remedies available to the seller in cases of breach of obligation." Lief Sevón, "Obligations of the Buyer under the Vienna Convention on the International Sale of Goods", 106 Juridisk Tidskrift (Suomen Lainopillinen Yhdistys) 337 (1990).
In support of Sevón's remarks at the Dubrovnik Lectures, Paragraph 6 of the Secretariat Commentary on [Article 65] refers to buyer's failure to provide specifications as a failure to act that can bring into play the Nachfrist avoidance provisions of [Article 64(1)(b)] (OFFICIAL RECORDS, p. 51), which would only be so if providing specifications were regarded as a part of buyer's delivery obligations or, à la Sevón, a presumption for production in the obligation to take delivery; and Honnold states that "the broad statement in Article 60(a) that the 'buyer's obligation to take delivery' includes acts to enable the seller to make delivery … may authorize the seller to give the buyer a Nachfrist notice (Art. 63(1)) fixing an additional period for supplying the specifications; if the buyer fails to comply the seller may be able to avoid the contract under Article 64(1)(b) without providing that the buyer had committed a 'fundamental breach' of contract (Art. 25)." John O. Honnold, "Uniform Law for International Sales under the 1980 United Nations Convention" [Honnold Text], 2d ed., Kluwer Law International (1991), p. 448, n. 3.*
* On the other hand, Honnold also states that "the notice-avoidance remedy applies only to the most important of the buyer's obligations; his failure in other areas (such as specifying features of the goods, Art. 65) constitutes a breach of contract but the seller may avoid the contract only if the breach is fundamental (Arts. 25, 64(1)(a))." Id at 440-441.
Honnold cites Article 60(a) as one of a number of instance of "the Convention's recognition of the importance of cooperation in carrying out the interlocking steps of an international sales transaction." Honnold Text, 2d ed., p. 430. By way of comparison, Section 2-311 of the Uniform Commercial Code states that "where one party's cooperation is necessary to the agreed performance of the other but is not seasonably forthcoming, the other party in addition to all other remedies (a) is excused for any resulting delay in his own performance; and (b) may also either proceed to perform in any reasonable manner or after the time for a material part of his own performance treat the failure ... to cooperate as a breach by failure to deliver or accept the goods."
Ziegel states: "[T]he buyer's duty of cooperation ... also arises by the use of appropriate mercantile terms ... Even if trade terms are not used, a court applying the Convention should be willing to imply a general duty of cooperation to make the contract effectual. Cf. UCC 2-311(1) and CISG Art. 7." Jacob S. Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods" (July 1981), p. 123.
For a Doctoral thesis on "Reasonableness" in International Commercial Law, go to Guillaume Weiszberg, Le "Raisonnable" en Droit du Commerce International [pour le doctorat en droit de l’Université Panthéon-Assas (Paris II), 7 novembre 2003]
Honnold states: "When the seller makes the contract with the carrier (Art. 32(2)) the seller will be interested in the buyer's prompt removal of the goods from the carrier's possession for the seller may be liable to the carrier for freight and demurrage if the buyer fails to pay. Delay in taking over the goods may also have significant consequences when the goods are lost or damaged. See Ch. IV, Arts. 66-70, infra. When the contract does not involve carriage, risk normally passes to the buyer when he 'takes over the goods' (Art. 69), but the risk may shift when the buyer 'commits a breach of contract by failing to take delivery'. Under [Article 60] the buyer's failure to perform his obligations with respect to 'taking over the goods' is a breach of contract and thus invokes the above rule making him responsible for casualty to the goods, and may also provide a ground for the seller to avoid the contract (Arts. 63 & 64 ...)." Honnold Text, 2d ed., pp. 431-432.
Sevón states: "In the Convention a distinction is made between the buyer's obligation to take delivery and his obligation to take over the goods. Of these expressions 'take delivery' is the broader one. According to Article 60, the obligation to take delivery consists on one hand in performing all the acts which could reasonably be expected of the buyer in order to enable the seller to make delivery and, on the other hand, in taking over the goods ... The duty to take over the goods relates to the physical possession of them. Since references in the Convention to the buyer also cover persons acting on his behalf, it would seem that the obligation referred to in Article 60(b) also covers cases where the carrier refuses to accept the goods for carriage, e.g., because of their dangerous nature, if the buyer should have informed the carrier of the nature of the goods in advance. This obligation also covers the late arrival of a carrier engaged by the buyer at the place where the buyer is to take over the goods. Lastly, it covers the obligation of the buyer himself to take over the goods after carriage arranged by the seller as well as in cases where the contract calls for the seller to make delivery of the goods by placing them at the buyer's disposal at the seller's place of business or at another place.
"Under Article 86(2), if goods dispatched to the buyer have been placed at his disposal at their destination and the buyer exercises the right to reject them, he must in certain situations take possession of the goods on behalf of the seller. Here one does not speak of taking delivery and the remedies for failure to take delivery do not apply to failure to take possession." Lief Sevón, "Obligations of the Buyer under the Vienna Convention on the International Sale of Goods", 106 Juridisk Tidskrift (Suomen Lainopillinen Yhdistys) 337-338 (1990).
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- Last updated September 18, 2009