Q 33-1
(a) What do you believe is the purpose of a provision like Article 33 in the CISG?
(b) For which of the buyer’s rights is it significant?
(a) To ensure uniform interpretation and application of the seller’s delivery obligations under the CISG.
(b) The right to claim specific performance or damages, avoid the contract, or set a Nachfrist for the performance of the seller’s obligations.
Q 33-2
What kind of circumstances could give rise to a determination of the date by reference to the contractual terms?
Where there is a provision for delivery to be made ‘5 days after payment’, or delivery is dependent on a specific event, such as a Trade Fair.
Q 33-3
Under which circumstances might the right to choose the date for delivery lie with the buyer?
If the buyer has to undertake certain steps in order to obtain the goods, for example, when the parties agree on EXW delivery. If it is agreed that delivery will be made on payment, and the buyer is able to choose when payment is to be made.
Q 33-4
How did the court in C 33-1 determine the time of delivery?
The court used Article 33, considering what was reasonable, but finding that any delay could not be attributed to Respondent in any event.
Q 33-5
What should parties consider when defining a delivery period in their contract? Take into account the dispute of C 33-1.
Parties should take into consideration the delivery terms agreed, as the form of shipment can impact what is considered “reasonable”. The allocation of obligations under the delivery terms furthermore can impact who bears the responsibility for delays in delivery.
Q 33-6
What are some other “determinable” periods which could cause disputes? Discuss potential issues and take into account cultural and language barriers. What are some other factors that might impact the interpretation of a contractual term on delivery?
Other determinable periods that may cause disputes include terms like “promptly,” “as soon as possible,” or “within a reasonable time,” since these lack objective precision. Cultural and language barriers can amplify misunderstandings—for example, “immediately” may be interpreted more flexibly in some jurisdictions than in others. Issues also arise when parties rely on differing business practices or trade usages, leading to conflicting expectations about delivery schedules. External factors such as transportation delays, holidays, or local customs can further complicate interpretation. Ultimately, clarity in drafting and awareness of cross-cultural differences are essential to avoid disputes under Article 33 CISG.
Q 33-7
Look at the following examples and state whether, in your opinion, each one falls within the ambit of Article 33(a) or Article 33(b) CISG:
(a) ‘Wednesday after Easter’;
(b) ‘Within 10 days after Easter’;
(c) ‘At the latest 10 days after sight of sample’.
(a) Article 33(a) CISG.
(b) and (c) Article 33(b) CISG.
Q 33-8
(a) Which aspects did the court consider relevant in assessing the ‘reasonable time’ in the above case (C 33-1)?
(b) How is this reconcilable with the general notion of ‘reasonableness’ under the CISG?
(a) The proximity of Christmas and the fact that the goods concerned were seasonal fabrics, in which time is an important consideration.
(b) What a reasonable person would have done in the situation is also acceptable here.
Q 33-9
(a) Do you agree with the provision that the court in C 33-2 relied on?
(b) Why or why not?
(c) Do you agree with the interpretation of the ‘delivery date’?
(a) and (b) No, I would have thought that Article 33(b) CISG was the more appropriate provision to rely on because the seller agreed to deliver within April 1997. However, this period was uncertain since it was subject to a reservation by the seller, so perhaps Article 33(c) offered the best solution in the circumstances.
(c) I disagree with the finding of the court that 15 March 1997 constituted the outside limit of the seller’s delivery obligation. The buyer had already signed the seller’s confirmation indicating April 1997 but reserving the date. Consequently, the buyer could not unilaterally modify this to 15 March 1997. Any assessment of Article 33(c) CISG should have started from the seller’s statement of April 1997.
Q 33-10
What factors did the court consider in C 33-3 to determine whether or not a ‘reasonable time’ was complied with in accordance with Article 33(c) CISG?
(b) How did the court in C 33-3 interpret the parties’ communications regarding delivery timing? What language or phrases could a court find relevant or irrelevant to establishing a fixed delivery date?
The time required for the refurbishment of the loader and the fact that the buyer had indicated to the seller that it had no immediate need for the loader.
Q 33-11
Why is it significant in C 33-4 that the buyer continued to place orders and did not raise repeated or specific complaints about delivery times?
It showed that despite the “urgent” language, the deliveries were still accepted. This impacted how the court interpreted these communications when establishing whether deadlines were agreed. If you use urgent language but the timeline is handled relaxed, reasonableness may be assessed differently.
Q 33-12
To what extent should industry practice or the parties’ previous course of dealing influence the assessment of what is a "reasonable time" for delivery?
Lacking express agreement, the court must refer to something to decide what is reasonable in this specific case. Industry practice or even the type of goods may impact that, but likewise, if the parties handled deliveries relatively relaxed, the court will have a different standard for reasonableness than in a case where deliveries always followed a specific and short process.
Facebook
