Delivery obligations in international sales encompass the place, time, quantity, quality, and accompanying documents of delivery. What you must deliver, where, when, and under what condition determines whether your obligation has been fulfilled. In our practice, we see that entrepreneurs underestimate the legal complexity of delivery. CISG, Incoterms, and the Dutch Civil Code all play a role simultaneously. A well-structured contract aligns all elements consistently.
What is the legal problem?
Delivery in international sales involves multiple elements, each regulated separately. Ambiguity on any point leads to disputes regarding whether performance occurred. Under CISG regimes, specific regulations apply that must be followed precisely. Incoterms divide costs and risk, but not all delivery obligations. Incorrect assumption leads to rejection of delivery and damage claims.
What does the law say?
Under CISG (Article 30 CISG), the seller must deliver goods in accordance with the contract, provide documents, and transfer ownership. Place and time follow from the contract, custom, or standard rules (Articles 31 and 33 CISG). CISG requires timely delivery within a reasonable period, unless otherwise agreed. Incoterms 2020 supplement this with specific agreements for transport, customs, and risk.
Under Dutch law, Article 7:9 of the Civil Code governs delivery and delivery; Article 7:11 of the Civil Code governs the transfer of risk. Regarding documents, Article 34 CISG applies: the seller must provide documents at the time, place, and in the form prescribed by the contract.
What risks do companies face?
Late delivery can constitute a fundamental breach under Article 25 of the CISG and justify rescission. Incorrect documents lead to rejection and non-payment. Incomplete delivery entitles buyers to partial rescission and a price reduction under Article 50 CISG. An Incoterm mismatch creates unexpected cost allocation and insurance issues. Reputational damage with major buyers undermines long-term relationships.
Practical example from our practice
We represented a Dutch exporter who delivered FOB Rotterdam to a Spanish buyer but lacked a required health certificate. The goods were rejected by customs under Regulation (EC) 178/2002. The buyer terminated the contract under Section 49 of the CISG and claimed damages. Upon renegotiation, we incorporated the following: a document list attached with specific party responsibilities, linking payment to document presentation via the Letter of Credit, and pre-shipment inspection. Subsequent deliveries proceeded without issues.
What can you do?
Define delivery including place, time, quantity, and documents. Align with the chosen Incoterm under Incoterms 2020 and clearly regulate deviations. Include a document list attached. Agree on the inspection and acceptance procedure. Regulate the consequences of delay (penalty, extension, termination) under Section 6:91 of the Dutch Civil Code. Provide for rapid escalation in the event of a dispute. See also our article on Which Incoterm should you choose?