(a) At the phase of concluding a contract, different considerations apply (such as a meeting of the minds about the content of the contract) than once a contract is already concluded and notifications are confined to issues concerning the execution of the contract.

(b) and (c)Articles 39 (notice of lack of conformity), 43 (notice of third party right or claim), 46(3) (request for repair), 71(3) (notice of suspension of performance), 72(2) (notice of intention to avoid), 88(1), (2) (notice of intention to sell).

The notification must reach the recipient.

(a)   What does the party relying on Article 27 CISG have to prove?

(b)     How is proof to be provided?

(c)     How does the burden of and standard for proof affect a situation in which the seller denies receipt of the buyer’s declaratory notice?

(a) That it dispatched the notice by means appropriate in the circumstances.

(b) Depends on the communication method used. Examples include receipt from post office, email copy, telephone memo, chat log etc.

(c) Under Article 27, the seller cannot simply rely on not receiving the notice. Instead, it would need to argue that the buyer did not dispatch it. See C 27-2 (C 26-2), in which the sole arbitrator explained this in detail: the party declaring avoidance must prove the dispatch, but whether it is received does not fall under the burden of proof for it. It is the addressee who bears the risk of the notice not reaching it.

(a)     Given the shift of risk once the declaring party has dispatched its notice, namely that the addressee bears the risk for not receiving it (see Q 27-3), there must be a standard for the way a notice is dispatched. It must be dispatched in a way that it can reach the addressee, which depends on the circumstances. Considering those circumstances, the declaring party must choose “appropriate means” to ensure that, in theory based on these circumstances, the notice would reach the addressee.

(b) The usual means for making communications taking account of practices established between the parties, distance, time of day etc. 

(c) The language of the notice should be the usual language of the contract.

No, what constitutes appropriate means should be governed by Article 9 CISG. In any case, appropriate means is not defined in the CISG.

(a) and (b) Yes, it is questionable whether oral communications could be included in the phrase ‘failure to arrive’, as oral declarations require that they are not simply heard, but also understood.

Para. 4.3: despite using a communication form not accepted by the addressee, i.e., based on the circumstances not appropriate, the communication may still be “dispatched” in the sense of Article 27, if the addressee was (i) aware of the message and its content, and (ii) processed the message accordingly. In that case, the burden of proof for whether these two prerequisites are fulfilled must also lie with the declaring party (Q 27-3).

Para. 5.5: This supports the answers of Q 27-4, reiterating that the risk lies with the addressee as long as the means chosen by the declaring party were appropriate.

(a) It is clear that email is an appropriate form of communication of notices where the parties concerned have agreed to receive messages by email. Under Article 27 CISG, an email message is effective when it leaves the information system of the sender. Proof of this can be obtained by a sent receipt.

(b) While wrong email addresses nowadays often receive a bounceback (if the address does not exist at all), the same is not necessarily true for SMS or online forms. Wrong numbers or user errors can affect the dispatch. The differentiation whether it was an error on the side of the declaring party or addressee must be made carefully, as it affects the transfer of risk.

That depends. Unreliable communication methods generally will not meet the standard of “appropriate means”, but if the parties have an established practice of using this method, are aware of the risks, or if the addressee nevertheless knows of the content of the notice, Article 27 CISG can protect the sending party.

As UNCITRAL Model Laws, they are not applicable unless adopted. However, the principles reflect modern understanding of the impact of a shift to electronic communications. The UNCITRAL Model Law on Electronic Transferable Records relates e.g. to bills of lading, bills of exchange, promissory notes and warehouse receipts. The UNCITRAL Model Law on Automated Contracting is a recent (2024) attempt to address the deployment of artificial intelligence techniques, smart contracts, and machine-to-machine transactions, which are examples of contract automation.  The Guide on Enactment for the UNCITRAL Model Law on Automated Contracting addresses the question of notices in the general context of “actions”. Article 8 of the UNCITRAL Model Law on Automated Contracting deals with unintended actions, which would cover errors in transmissions. Interestingly, according to the Guide on Enactment, the risk of an error in transmission remains with the party using an automated system. The Explanatory Note on the UNCITRAL Model Law on Electronic Transferable Records emphasizes that Article 13 may address the indication of time and place in transferable documents and instruments, but it cannot sufficiently address time and place of dispatch and receipt of data messages and of electronic communications, for which the law does not refer to Article 27 CISG but to the more specialized Article 15 of the UNCITRAL Model Law on Electronic Commerce and Article 10 of the Electronic Communications Convention.