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LEGISLATIVE HISTORY

Legislative history of CISG article 67: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 79

(1) If the contract of sale involves carriage of the goods and the seller is not required to hand them over at a particular destination, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer. If the seller is required to hand the goods over to a carrier at a particular place other than the destination, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of risk.

(2) Nevertheless, if the goods are not clearly marked with an address or otherwise identified to the contract, the risk does not pass to the buyer until the seller sends the buyer a notice of the consignment which specifies the goods.

  

CISG article 67

(1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk.

(2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise.


Editorial comments

Paragraph (1) of CISG article 67 contains three modifications: "bound to" rather than "required to". "place" rather than "destination". "Mr. NICHOLAS (United Kingdom), introducing his delegation's amendment ... The word 'destination' usually referred to the locality at which the goods ended their journey, whereas the more general word 'place' could include intermediate localities. In the [first sentence], he took it that the intention was to refer to any particular place, which would normally be other than the destination of the goods, and he proposed that the text should read accordingly. It could not have been the intention of the drafters to suggest, in the [second sentence], that the goods could be handed over to a carrier at their destination. He therefore proposed the deletion of the phrase 'other than the destination'" (Official Records, P. 402). Addition of the phrase "in accordance with the contract of sale". "Mr. INAAMULLAH (Pakistan), introducing [this addition]. Its intent was to clarify that when goods were handed over to the first carrier for transmission to the buyer, that procedure should be in accordance with the contract" (Official Records, p. 402). "Mr. MEHDI (Pakistan) explained that the amendment had been intended to remove ambiguities in the existing text and in no way to limit the seller's right to choose the carrier or the mode of dispatch" (Official Records, p. 213). Paragraph (2) contains a modification related to the identification of the goods. "Mr. HONNOLD (United States of America), introducing his delegation's amendment to [the second paragraph], said the existing text laid undue emphasis on identification by specifying that goods should be marked with an address. That was not the most normal means of identification and was unworkable for bulk goods. For the sake of clarification he proposed a more flexible formulation which would be more in accord with commercial practice" (Official Records, p. 402).

Subject to the above, the Secretariat Commentary on 1978 Draft article 79 should be relevant to the interpretation of CISG article 67.


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG