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LEGISLATIVE HISTORY
CISG ANTECEDENTS
CISG Article 67 ULIS Article 19(2) and (3)
1. If the contract of sale involves 2. Where the contract of sale
carriage of the goods and the involves carriage of the goods
seller is not bound to hand and no other place for delivery
then over at a particular place, has been agreed upon, delivery
the risk passes to the buyer when shall be effected by handing
the goods are handed over to over the goods to the carrier
the first carrier for transmission for transmission to the buyer.
to the buyer in accordance with
the contract of sale. If the 3. Where the goods handed
seller is bound to hand the goods over to the carrier are not
over to a carrier at a particular clearly appropriate to
place, the risk does not pass to performance of the contract
the buyer until the goods are by being marked with an
handed over to the carrier at address or by some other
that place. The fact that the means, the seller shall, in
seller is authorized to retain addition to handing over the
documents controlling the goods, send to the buyer notice
disposition of the goods does of the consignment and, if
not affect the passage of the risk necessary, some documents
specifying the goods.
2. Nevertheless, the risk does
not pass to the buyer until the ULIS Article 97(1)
goods are clearly identified to
the contract, whether by The risk shall pass to the buyer
markings on the goods, by when delivery of the goods is
shipping documents, by notice effected in accordance with the
given to the buyer or otherwise. provisions of the contract and
the present Law.
SEE ALSO:
ULIS Article 100. If, in a case to which paragraph 3 of Article 19
applies, the seller, at the time of sending the notice or other
document referred to in that paragraph knew or ought to have known
that the goods had been lost or had deteriorated after they were
handed over to the carrier, the risk shall remain with the seller until
the time of sending such notice or document.
ULIS Article 101. The passing of risk shall not necessarily be
determined by the provisions of the contract concerning expenses.
Comments on the match-up
"The idea of linking the passing of the risk to the delivery of the goods, as is the case under ULIS, did not find favour during preliminary work on the CISG and was dropped. The main criticism was levied at the excessively complicated nature of 'delivery' owing to its quite different functions. Thus, 'delivery' served to define the seller's obligations, the time and place for making payment, and also the point when risk passed. In particular, ULIS' rules on the passing of the risk in the case of the delivery of defective goods were considered to be unnecessarily complicated, bcause here ULIS was obliged to drop the link between the passing of risk and delivery (Article 97(2) ULIS). However, the decision to separate the passing of risk from the delivery of the goods was ultimately a question of legislative technique. In essence, the CISG rules on the passing of risk largely correspond to those of ULIS. That is also the case in regard to a contract of sale involving carriage of the goods, if one ignores the fact that the CISG has dropped the rule concerning the retroactive passing of risk when notice of appropriation to the contract is given after the handing over of the goods to a carrier (cf. Article 67(2) in conjunction with Article 100 ULIS)." Hager in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford l998) 504 [citations omitted].
Pace Law School Institute of
International Commercial Law
- Last updated June 17, 1997
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