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TIME OF GOODS DELIVERY, FULLFILMENT OF AN
OBLIGATION BY SELLER
Majlinda Belegu , PhD
Universitety “Haxhi Zeka” Kosove, Peje, Faculty of Law
Abstract Contract parties have agreed the time of goods delivery based on the agreement that was reached between them.According to the legislation the time of goods delivery is determined in two ways: determination of the day (time), determination of date when the obligation is fullfiled. According to the first the day is determined by the agreemend of the parties and this day is connected to a determined day or to a determined event. Goods delivery is also done based on a precisely determined term based on the contract agreement and it has to be strict and respected by both parties. Apart to this, there are cases when contract parties do not determine the time for goods delivery, and they determine the time after the contract was signed and regarding this there are three ways of delivery.Delivery is done 8 days after the contract is signed, but the Law on Obligations and other legislations detrmine an addititional agreement to be signed between partis after the contract was signed.Delivery of goods on the determined day and time, means also the fulfilment of the contract therefore the fulfilment brings to a better development of trade and it does’t created delays from both parties. When there are no delays on goods delivery on the determined time then there are also no casualties.All this has an impact on improving the circulation of goods and in way perfection by which it is contributed to the business perspectives and to the circulation of goods.
Keywords: Contract, time, delivery, fulfillment, contract parties
Introduction Fullfilment of the obligation based on the contract is one of the main obligations that have to be fullfiled by a seller on th eineterst of buyer. All times when the contract is signed, and in most cases even before the contract is signed the contract parties have two key problems.The first, it could be said I would say the determination of time for delivery, whereas the other problem or said in other way the obligation of the seller is the detrmination of time for delivery of the contract subject. It is very easy for the contracting parties if the time of fulfilling the obligation is put in the contract articles. The problem appears when the time is not determined by the parties in the contract; when contracting parties diddn’t contract the time of delivery, then the issues is: when the obligation is fulfilled? It can be fulfilled any time but it could not be fullfiled at all.If the seller don’t deliver determined item it is then considered that he is late and by this he has damaged the buyer.These damages then the buyer requires to be compensated by seller.In order not to be in the delay then he should by all menas determine the timeof goods delivery and this is based on the theory of nature that is most spread and used by lawyers in different systems for these cases. Related to the time of goods delivery when the time is not determined by the contract there exist varioues theories. Our domestic legislation is poor in this issue and it doesn’t go deep with this. Whereas common uzanse have regulated this issue quite well. In some case uzanses determine the term of delivery of goods for 8 days always
after the contract is signed but this is used only in the urgent cases,because in the cases when the delivery is impossible (cases when the goods are to be produced)---it is quite difficult to determine such a short term. Law on Obligation Relations (LMD) determines also the cases when the parties cannot in any way determine the time of delivery by contract or by non contracting agreement addresing the parties to the court so the court determine the time of goods delivery. Nonetheless goods have to be delivered in the determined time and if this is not done then there will be delays in the fulfillment of the obligation and this not only damages the contracting parties, but by this we would have delays in the circulation of goods in the market or circulation in general.
Regulating the term (time) of goods delivery by contract Parties in most cases agree by their contract about the term (time) of goods delivery. Time of fulfillment can be detrimend in two ways: 1.) be detriming the day (time) or 2.) by determinign the term within which the obligation should be fulfilled.
Goods delivery in the determined time (day) If parties by contract have determined the term of goods delivery, seller is obliged to deliver goods in that determined time. This is the rule that derives from the principle pacta sunt servanda and from the LMD as well as from the 1994 Albanian Civil Code. Time of delivery could be determined by contract or it could be derived from the agreement of contractin parties. The moment of goods delivery is determined by contract if parties agreed on goods delivery in the detrmined time (example: May 02,0000). Day of delivery is determined by the contract if the time is connected to an event that is expected to happen (example 20 days after the contract is signed) or if the usual terms are used. According to LMD saying the begining of the month determines the first day of the month, the half of the month is considered the 15th of the month whereas the end of the month it is considered the last day of the month.^215 According to the legislation if the goal of parties or the nature of contract relationships do not determine something else then the rights and obligations will be taken from the existing law.This means this has to do with an additional norm that will find its execution only when in the contract relationship there is an emptiness. When using these notions we have to be careful because the general uzanses give a differnet meaning.The beginign of the month is considered the period from 01 to 10th of the month; middle of the month starts with th 11th of the month and ends on 20th of the respected month and finally the end of the month starts on 21st until the last day of the month. 216 This means that according to the General Uzanses the delivery of goods is done in the determined date and not in the determined day. Thus if within the contract was determined that the delivery will be at th ebegining of the months, in the midle or at the end of the month, then the begining notes the firts day of the month, midle notes the 15th of the month and the end notes the last day of the month.^217 Rules covered by the Uzanses are more flexible and they are more convenient for the needs of goods circulation on trade therefore in practice they will be more used. On the trade
(^215) Law on Obligations (LMD), art. 77 paragraphf 4. (Kosovo Parliament, 10. 05.2012), Gazette. It is important
to take into the consideration the LMD and General Uzanses in different ways determine the time of regular terms. (^216) See more, Uzanse nr. 82, “General Uzanses on goods trade” (Chamber of Commerce of Former Yugoslavia,
nr.15/54),Beograd, 1954. (^217) Law on obligations , art. 65 paragraph 4, (Kosovo Parliament, 10. 05.2012), Gazette.
belongs to seller.^222 LMD and Uzanses determine that the determination of goods delivery belongs to seller because this is more useful from the fact that possibility is given to him to select the moment of delivery. This solution derives from the natural right on obligation of goods delivery respectively seller is party that should undertake various acts until the obligation fulfillment. There exist cases when the selelr is authorised to determine term of goods delivery. This can be achieved when seller has the obligation to do the transportation of goods. Oppositely from LMD Uzanses do not foresee possibility for seller to determine the day of goods delivery. In my opinion this possibility that is given to seller by the law is much better because it doesn’t favor seller but it gives to him more possibilities to take into the consideration all circumstances and to find the best possibility in relation to the concrete case. This solution is also in accordance with the international rules of sales. Party that was authorised to determine the day within the contracted term about when the goods is to be delivered, can determine each day that belongs to the working day within this term.^223 If th eauthorised party has not determined the day of delivery, then as the day of delivery will be considered to be the last day of goods delivery the day that is determined by contract between contracting parties from the moment of contract signature. According to a theory that is indeed supported by LMD, if the authorised party has not determined the term of delivery and if this is not determined by contract, the authorised contracting party to determine the term of delivery can require court to decide the term of goods delivery. 224 In my opinion article 315 of LMD cannot be implemented for some reasons. First, the mentioned article regulates the issue when the term of goods delivery is not at all determined whereas the authorised party do not determine but he delays or stagnation on determining of this term. The other party is not obliged to suffer stagnation or delay and he/she is obliged to remind the authorised party (for determining term) to determine the term of goods delivery. If the framework term of goods delivery is contracted this means that the time of goods delivery is determined, apart of this it is not possible to apply the legal rule that regulates the situation when the place of fulfillment is not determined. Second,a distinction between delivery and the arrival of term for fulfillment of obligation.^225 Obligation is counted to be obligation within th edetermined term that is contracted and the goods delivery should be respectively the seller can fulfill. However this comes in the last day, buyer since the last day by the good faith may require fulfillment whereas seller is obliged to do the delivery. Non delivery of goods leads toward delay of obligation fulfillment. If we talk for bis quantity of goods that cannot be delivered within a day, the authorised party should calculate that the goods delivery to be within a determined period of time when the entire goods are delivered within the contracted term. 226 According to this
(^222) General Uzanse on trade with goods,Uzanse nr.88,paragraph 1. (^223) Id, Uzanse. nr. 87 paragrafi 2 & Perović & Stojanović, “Commentar on Law on Obligation Relations”, book
II, Kragujevac, Gornji Milanovac,1980, pg. 53. (^224) Perović & Stojanović, “Commentar on Law of Obligations”,book II, Kragujevac, Gornji Milanovac,1980,
pg. 53; Blagojević & Krulj, “Commentar on Law on Obligation Relations,” book I, Beograd, 1980, pg. 962. (^225) Time of obligation fulfillment differs two moments: time of fulfillment by goodfaith when party requires
fulfillment by the other party – arrival and the time within which obliged party can fulfill obligation – fulfillemnt of the obligation. Apart of this arrival of fulfillment should exist even at the same time when the obligation arrives to be fulfilled. This means that the arrivel of fulfillment and the fulfillment of the obligation should be present at the same time. See more Schulze, “Bürgerliches Gesetzbuch – Handkommentar,” 2. Auflage, Baden-Baden, 2002, pg. 255. (^226) Id, Uzanse nr. 88, paragrapf 3.
when the big quantity of goods , it is not enoguh that obligation start s to be fulfilled but it should be fulfilled within the detemined term by contract. Party that has the right to determine the contracted term when the obligation will be fulfilled, should inform the other party about the day of fulfillment well on time. Information should be clear about the job we talk about as well as the day on which the obligation is to be fulfilled. This information about fulfillment is named preavizo. Uzanses in case of obligation fulfillment accept the theory of acceptance, informationis considered fulfiled when the party that has ordered accepts.^227 LMD does not foresee the obligation on information to the party but this is of course understable.
Goods delivery on term according to the agreement Contract of sale is considered plenipotentiary even when parties didn’t agree about the time of goods delivery. When parties did not contract the time of goods delivery, there are three ways of determining the time on which the goods will arrive.In many countries of the world,if nothing else is contracted delivery should be done immediately.^228 According to the other decision the fixed term is described within which the goods should be delivered. General Uzanses contain rules for cases when the term is not determined with the contract and thus it is considered that the delivery has to be done within 8 days from the contract conclusion.^229 Many theories, especially those from anglosaxon system foresee that when there is an absence of agreemnet between parties the delivery should be done within a term determined according to the agreement after the contract is concluded. This solution is foreseen also by LMD,that foresees that the seller is obliged to deliver goods according to the agreement between parties for goods delivery without taking into the consideration circumstances and without taking into the consideration the nature of the item (type).^230 Term of goods delivery within 8 days is not possible to be respected always because there are cases when the goods to be delivered have to be produced and in this case term of 8 days is not valuable. Regulation of goods delivery based on agreement of contracting parties is one of the mos interesting phenomenon becasue it strengthens the agreement between parties,enables facilitations for contracting parties and serves the free circulation of goods. Term by the agreement is valuated in the report with the nature of item (goods) and other circumstances.Thus for example delivery of generic item in the small quantity can be done within 3 days.Taking into the consideration the termination of term or change of the term based on the agreement we should take into the consideration all circumstances as well as the intersts of the contracting parties. General Uzanses for trade of goods foresee specific rules for case when parties did not cover by contract the term of delivery but they have foreseen that the buyer is obliged to oblige for packaging. Then seller is obliged to deliver goods immediately by passing the time for packing the goods.^231 Seller is obliged to determine precise term of goods delivery and is obliged to for this inform the other contracting party.
Conclusion The main goal of both barties is delivery of goods from seller to buyer and by this the transfer of the ownership from seller to buyer.This becasue this is the mission of the contract.The fulfillment of the obligation by both parties is achieved when both parties fulfill
(^227) See more, General Uzanse, Uzanse nr 89, article 3. (^228) German Civic Code, art. 271, paragrapf 1. (^229) General Uzanses on trade with goods, Uzanse. nr. 80 praragrapf 2,and art 81. (^230) Vizner & Bukljas, “Commentary on Law of Obligations ”, volume 3, Zagreb, 1979, pg. 1560. (^231) General Uzanses on trade with goods, Uzanse nr 94.
German Civil Code, 1900. Kapor & Caric, “Contracts on goods circulations”, edition IX , Novi Sad, 1996. Law on Obligations, article 65 paragraph 4, (Kosovo Parliament, 10. 05.2012), Gazette. “General Uzanses on goods circulations” (Former Yugoslavia Chamber of Commerce , nr.15/54, ), Beograd 1954. Perovic & Stojanovic, “Coomentary on Law of Obligations”, book II, Kragujevac, Gornji Milanovac, 1980. Schulze, “Burgerliches Gesetzbuch – Handkommentar,” 2. Auflage, Baden-Baden, 2002 Vizner, Bukljas, “Commentary on Law of Obligations”, book 3, Zagreb, 1979.
