Q 52-3 a) If the buyer accepts the seller’s early delivery, is it thereby excluded from making any further claims due thereto? b) If not, what sort of claims could it assert? Delivery of excess quantity 52-2 : If the seller delivers more goods than contractually agreed, the buyer is entitled to reject the excess amount. This is consistent with the notion of non-conformity with the con- tractual agreement enunciated in Art. 35(1) CISG. However, the contract itself may allow for certain deviations. Provided that any such deviation falls within the limits set out contractually, there is no overshipment.

doi:10.4324/9780203945445-144

Chapter

Q 52-3 a) If the buyer accepts the seller’s early delivery, is it thereby excluded from making any further claims due thereto? b) If not, what sort of claims could it assert? Delivery of excess quantity 52-2

Chapter

ABSTRACT

Overshipments (42) Mr. Forti admitted that it was a term of the contract that he could be shipped 10% more or less of the product ordered. While he complained about overshipments in his testimony, he could point to a written complaint about a short shipment only once in 1994, for which he sought a credit of 54 metres. He claimed that there were overshipments in 1994, as well, pointing to a particular invoice, yet he did not make a written complaint. Given that he made a complaint in writing about the quality of some of the goods in the same shipment in which he claimed an overshipment, I do not believe his claim with respect to overshipments in 1994. (43) In any event, even if there had been overshipments, I ﬁnd that the defendant accepted those goods and, in fact, paid for them. In accordance with Article 52(2) of the Convention and s. 29(2) of the Sale of Goods Act, there can be no complaint several years later. (44) The only other overshipment alleged was in April, 1996, the last shipment. While there were complaints at trial about this, a careful reading of the invoice indicates that several of the items allegedly overshipped were within the 10% tolerance. As to the other items, given Mr. Forti’s lack of forthrightness in his evidence generally and again, the lack of a complaint and a promise to pay, I do not accept that there was a problem of overshipment, and I ﬁnd that the defendant accepted the quantity shipped. This claim is rejected as well. [. . .]

Questions

Q 52-4 a) Upon what basis was the buyer unable to reject the goods in the above

case (C 52-2)? b) What other provision of the CISG could the court have relied upon

regarding this issue?