CISG CASE PRESENTATION

Case identification

DATE OF DECISION: 19960118 (18 January 1996)

JURISDICTION: Switzerland

TRIBUNAL: Bundesgericht [= BGer = Federal Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Firma T. S.r.l v. Firma S. AG

Case abstract

SWITZERLAND: Bundesgericht 18 January 1996

The federal court had to decide in this case if the Zürich Court of Commerce had jurisdiction to adjudicate a lawsuit between a Swiss seller of a waste gas cleaning installation and an Italian buyer.

The plaintiff began the lawsuit in Zürich based on article 5(1) of the Lugano Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters, according to which, in matters relating to a contract, a person may be sued in the courts of the place of performance of the obligation concerned. The Zürich Court of Commerce affirmed its jurisdiction.

On appeal, the federal court found that the purchase price as the obligation in controversy was governed by the CISG. The purchase price had to be paid at the seller's place of business (article 57(1)(a) CISG). If, however, payment was to be made against the delivery of the goods or of documents, the seller must be paid at the place where the delivery occurs (article 57(1)(b) CISG). In the present case, the federal court had to determine whether article 57(1)(b) CISG was applicable.

The federal court construed the words of article 57(1)(b) CISG "if the payment is to be made against the handling over of the goods" in the light of article 58(1)(2) CISG, pursuant to which the seller may make such payment a condition for delivering the goods or documents.

The federal court held that the present case did not fall within the ambit of article 57(1)(b) CISG. Thus, payment had to be made at the seller's place of business at Zürich. Consequently, the Zürich Court of Commerce had jurisdiction under article 5(1) of the Lugano Convention.

Editorial remarks

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