CISG CASE PRESENTATION

SWITZERLAND: Handelsgericht des Kantons Zürich 16 December 1998

Case law on UNCITRAL texts (CLOUT) abstract no. 250

Reproduced with permission from UNCITRAL

A Swiss seller, plaintiff, sold designer watches to a German buyer, defendant. Delivery of the goods was effected through an overnight carrier, who placed the parcel in front of the buyer's closed offices early in the morning. The buyer claimed never to have received the goods and the seller sued for the purchase price.

The issue before the court was whether or not the CISG was applicable. Although the parties had excluded the CISG in general contract terms, the defendant later questioned this exclusion. By analogy with article 100(1) of the Swiss Code of Obligations, pursuant to which an agreement excluding a party's liability for gross negligence or intentional wrongdoing is void if made in advance, the defendant argued that the same rule should apply to an agreement excluding the CISG. The court rejected this reasoning and noted that the CISG prevails unless the legislator enacts a superseding rule. It found that the cited article of Swiss domestic law was not such a rule. As there were no other reasons hindering the parties' exclusionary clause, the CISG was not applicable (article 6 CISG).

Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht/Revue suisse de droit international et de droit européen (1999) 184-185

CITATIONS TO TEXT OF DECISION