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Cite as Maskow, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 410-411. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 56

Dietrich Maskow

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 56

If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight.

1. History of the provision

Aside from some minor stylistic changes this article corresponds to Article 58 of ULIS.

2. Meaning and purpose of the provision

     2.1. - This provision provides a rule of interpretation. It does not of itself impose rights and duties on the parties. However, if the parties have made an agreement but left something unclear, their agreement is to be interpreted by a rule of this kind.

     2.2. - The net weight is the total weight less the weight of the packing materials.

     2.3. - Frequently the contract price is related to the quantity of goods to be delivered. This relation may be a proportional one or a disproportional one (e.g., quantity rebates) and the criteria for its determination vary. In sales contracts, the methods for determination of the price most frequently relate it to the quantity of pieces or units, or to the weight. While the former method is predominant in the sale of machines, durable consumer goods, cosmetics and the like, the latter is used when bulk goods like commodities and chemicals are being traded. Such goods are frequently, although not always, sold without packaging, which reduces the scope of application of this rule.

     2.4. - Fixing the price according to the weight of the goods may be accomplished in different ways. Typically, a price for a [page 410] basic unit is fixed (e.g., for one ton), and the price for the quantity agreed is calculated accordingly. But, the contract may state only a certain amount in weight and a certain total price. Interpreting these clauses becomes complicated if rebates depending on the quantity sold are given. A price fixed according to the weight of the goods is evinced by a clear, computable relation between the quantity of the goods to be delivered (expressed in weight units) and the total price (agreed upon in the contract or determinable thereunder). The quantity in weight units here means the net weight.

Sometimes, although with diminishing frequency, a type of so-called weight clause is included in plant contracts. The clause would provide that the weight of the plant must be that of at least a certain amount. Where it is less the price is reduced proportionately or in a defined relation. In this case it is not the price itself but a form of price reduction that is fixed according to the weight of the goods. In this case too, Article 56 is applicable. The packaging is excluded in determining whether the goods are of minimum weight.

     2.6. - The net weight is decisive, in case of doubt, under Article 56. No doubt exists as to the determination of the weight of the goods where the contract or the Convention (including usages and practices applicable under Article 9) gives a clear indication. Where the redispatch of packing materials is agreed upon it goes without saying that the weight agreed shall be the net weight. On the other hand, the clause «gross for net» means that the price is calculated using the total value of goods and packing (see VON CAEMMERER; in DÖLLE, Einheitliches Kaufrecht, 359).

3. Problems concerning the provision

     3.1. - The obligation to pack the goods and to pay for packing falls upon the seller. This can be derived either from Article 35(2)(d) according to which goods do not conform with the contract unless they are contained or packaged in the manner usual for such goods (see SEVÓN, in SARCEVIC- VOLKEN, International Sale of Goods, 211), or from usage, when packing is required. Either of these conclusions has the advantage of avoiding a reference to national law, under Article 7(2). [page 411]


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