CISG Advisory Council Opinion No. 1 Electronic Communications Under CISG

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CISG Art. 39

(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

OPINION

The term "notice" includes electronic communications provided that the seller expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.

COMMENT

39.1. Information to the seller about lack of conformity of the goods can be given in an electronic message. The important factor is that the information be conveyed to the seller, not in what form it is conveyed.

39.2. For the effectiveness of notice to the seller see comments in Articles 15 and 27.

See also UNCITRAL Model Law on Electronic Commerce Art. 5

CISG Art. 43

 (1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has
become aware or ought to have become aware of the right or claim.

(2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it.

OPINION

The term "notice" includes electronic communications provided that the seller expressly or impliedly has consented to receiving electronic messages of that type, in that format, and to that address.

COMMENT

43.1. Information to the seller about the nature of a right or claim of a third party can be given in an electronic message. The important factor is that the information be conveyed to the seller, not in what form it is conveyed.

43.2. Even when the seller has not indicated his willingness to receive electronic messages of the relevant type, it may be nevertheless established that he was aware of the claim in accordance with CISG Art. 43(2).

43.3. For the effectiveness of notice to the seller see comments in Articles 15 and 27.

See also UNCITRAL Model Law on Electronic Commerce Art. 5

CISG Art. 47

(1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations.

(2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance.

OPINION

The term "notice" includes electronic communications.

COMMENT

47.1. Information to the buyer from the seller that the seller will not perform within the fixed period can be conveyed by an electronic message. When the buyer has received such electronic notice, he may choose to resort to a remedy for breach of contract.

CISG Art. 63

(1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations.

(2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance.

OPINION

The term "notice" includes electronic communications.

COMMENT

63.1. Information to the seller from the buyer that the buyer will not perform within the fixed period can be conveyed by an electronic message. When the seller has received such electronic notice, he may resort to any relevant remedy for the breach of contract.

 

CISG Art. 65

(1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him.

(2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding.

OPINION

Specifications and communications may be electronic provided that the addressee expressly or impliedly consented to receiving such communications.

COMMENT

65.1. Information to the other party about specifications or communications about specifications can be given in an electronic message. The important factor is that the information be conveyed to the other party, not in what form it is conveyed.

65.2. For the effectiveness of specifications and communications to the other party see comments in Articles 15 and 27.

See also UNCITRAL Model Law on Electronic Commerce Art. 5.

CISG Art. 67

(1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk.

(2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise.

OPINION

The term "notice" includes electronic communications provided that the buyer expressly or impliedly has consented to receiving electronic communications of that type, in that format and to that address

COMMENT

67.1. Information to the buyer about the goods being clearly identified to the contract can be given in an electronic message. The important factor is that the information be conveyed to the buyer, not in what form it is conveyed.

67.2 The buyer need not have consented to electronic communication in order to make an electronic notice under article 67(2) effective. The reason is that the buyer's consent is not needed for other modes of identification such as markings of the good

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