The Seller’s Obligation to Deliver the Goods Under the CISG

The CISG (United Nations Convention on Contracts for the International Sale of Goods) came into force for Türkiye on August 1, 2011. The CISG has been signed and adopted by 89 countries that account for a major portion of global trade. Therefore, we can say that it is a widely accepted legal regulation applicable to international sales contracts. Since Türkiye is also a contracting state, it would be beneficial for Turkish exporters and importers to be knowledgeable about the provisions of this convention. In international sales where the CISG is applicable, the provisions of the CISG will be applied instead of the national laws of the seller and buyer. In this article, one of the seller’s/exporter’s most important obligations—“the obligation to deliver the goods”—will be examined, after first discussing the scope of application of the CISG.

Scope of Application of the CISG

According to Article 1 of the CISG, the Convention applies to contracts of sale of goods between parties whose places of business are in different states, provided that these states are contracting states. If one party’s place of business is in a country that is not a party to CISG or if the parties have excluded the application of the CISG in their contract, then Private International Law rules become relevant. In such cases, if the Private International Law rules of the forum refer to the law of a CISG contracting state, then the CISG will still apply to the contract.

Sales contracts excluded from the scope of the CISG are listed in Article 2 of the Convention. These include consumer sales, auctions, sales by authority of law (such as judicial sales), sales of stocks, shares, investment securities, negotiable instruments, and money; as well as sales of ships, vessels, hovercrafts, aircrafts, and electricity. Additionally, contracts for the supply of goods to be manufactured or produced where the buyer supplies a substantial part of the materials necessary for such manufacture, and contracts in which the preponderant part of the seller’s obligations consists of labor or services, are also excluded from the CISG (Article 3).

The Seller’s/Exporter’s Obligation to Deliver the Goods Under The CISG

The CISG leaves the matter of the seller’s/exporter’s obligations in international sales contracts largely to the parties' freedom of contract. Therefore, the obligations and their scope must be determined by reference to the agreement between the parties. According to Article 30 of the CISG, the seller is obliged to deliver the goods, hand over any documents related to them, and transfer ownership as required by the contract and the Convention.

It is important that the goods are delivered properly according to the agreement and the CISG provisions. A delivery not conforming to the agreed terms and the CISG regulations means the seller has failed to fulfill the delivery obligation. In that case, the risk remains with the seller, and the risk does not pass to the buyer in non-conforming deliveries.

The content of the delivery obligation depends on the agreement between the parties. In some contracts, delivery may mean making the goods available to the buyer, while in others, it may mean handing them over to the first carrier. If the buyer already has possession of the goods at the time the contract is concluded, the seller has no delivery obligation. Also, if delivery becomes impossible under Article 79 of the CISG, the seller is released from the obligation.

Article 31 of the CISG sets out the delivery obligation in detail. Unless otherwise agreed by the parties, and unless established practices between the parties suggest otherwise, delivery is deemed to occur:

- In sales involving carriage of goods: by handing over the goods to the first carrier for transmission to the buyer;- In other cases involving identified goods or goods to be manufactured: by placing them at the buyer’s disposal at the place known to both parties where the goods are located or will be produced;- In all other cases: by making the goods available at the seller’s place of business.

In sales involving carriage of goods, the delivery obligation also includes notifying the buyer of the dispatch of the goods (Article 32/1). This notification obligation applies when the goods are not clearly identified to the contract by markings, shipping documents, or otherwise. While CISG does not impose an obligation on the seller to arrange transport, parties can agree on Incoterms such as CPT, CIP, DAT, DAP, DDP, CFR, CIF, whereby the seller undertakes transportation. In such cases, the seller must conclude contracts necessary for transportation. A seller responsible for carriage must select carriers and means of transport appropriate to the goods’ type, quantity, and characteristics.

The CISG does not impose a duty on the seller to insure the goods. However, the parties can agree that the seller will obtain insurance. If there is no such obligation, the seller must provide the buyer with all necessary information to procure insurance upon request.

Time of Delivery

According to Article 33 of the CISG, if the parties have agreed on a date or if such a date can be determined from the contract, the seller must deliver the goods on that date. Instead of a fixed date, the parties may agree on or determine a time period for delivery. If so, and unless the buyer has been given the right to choose a specific date within that period, the seller must deliver at any time within the agreed time frame. If neither a fixed date nor a time period has been specified, the seller must deliver within a “reasonable time” after the conclusion of the contract. What constitutes a reasonable time depends on the circumstances of the case, and the relevant factors must be or should have been known by the parties.