Reproduced with permission from Revue de droit uniforme/Uniform Law Review (1997) 385-395

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Place of delivery

By contrast, when the obligation in question is delivery of the goods and the parties have not agreed on a particular place of delivery, the courts refer to Article 31 CISG in order to ascertain whether or not they have jurisdiction.

Under Article 31(a), when the contract involves carriage of the goods, the obligation of the seller to deliver consists in handing over the goods to the first carrier for transmission to the buyer. In most cases the seller performs this obligation at his own place of business, by putting the goods into the carrier's possession.

For this reason, in a case involving the carriage of the goods which were considered to have been delivered to the first carrier at the seller's place of business in France, a Dutch court declined its jurisdiction as the place of performance was in France.[60]

It may however happen that a different agreement has been reached with the carrier or the buyer, so that the seller is under a duty to hand the goods over to the carrier in a different place. Moreover, when FOB, C&f, CIF and similar terms are to be applied, the place of delivery is the ship's rail even though the carriage by sea is not the first carriage.

If the contract does not involve the carriage of the goods, Article 31(c) provides that the seller must place the goods at the buyer's disposal at the seller's place of business. In this event, where the dispute relates to the seller's obligation to the deliver the goods, the competent court is that of the seller's place of business.[61]

The solution remains unchanged when the obligation in question is the buyer's obligation to take delivery. Thus, since Article 60(b) states that the buyer's obligation to take delivery consists in taking over the goods, but does not specify where, a German court referred to Article 31(c) and affirmed its jurisdiction on the ground that the seller's place of business was in Germany.[62]

Worth mentioning is also a case decided by the Court d'appel of Paris, in which the obligation in question related to the conformity of the goods. The judges had to consider the place in which the goods should have been conforming. The court noted that under Articles 35(1) and 35(2)(a), which associate delivery and conformity, both obligations must be performed at the same place. Therefore, as the goods were to be delivered in accordance with the contract, i.e. at the buyer's place of business in France, the court stated that, as the obligation to deliver conforming goods had to be performed at this place, the French forum was competent.[63]

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FOOTNOTES

* Professor, Law Faculty, University of Rome 1 "La Sapienza"; Legal Consultant, Unidroit.

** Attorney in Rome; Research fellow, University of Rome 1 "La Sapienza".

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60. Gerechtshof's-Hertogenbosch, 9 October 1995, n. 334/95/MA, in Nederlands Internationaal Privaatrecht (1996), nr. 118.

61. For a case where the contract expressly provided that the buyer was to take delivery from the seller's place of business, see Oberlandesgericht Koblenz, 23 February 1990, n. 2 U 1795/89, in Recht der In ternational Wirtschaft (1990) 316.

62. Landgericht Aachen, 14 May 1993, n. 43 O 136/92, in Recht der Internationalen Wirtschaft (1993) 760.

63. Cour d'Appel de Paris, 13 December 1995, n. 95-018179, in UNILEX 1996.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999

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