Q 31-1
(a) When is delivery effected in cases of multiple carriers?
(b) When is delivery effected in cases of transport by the seller’s own employees?
(c) When is delivery effected in handing goods over to a freight forwarder?
(a) When the goods are handed over to the first carrier to be sent to the buyer.
(b) If the seller still has control over the goods, carriage within the meaning of Article 31(a) CISG does not take place. In such circumstances, delivery is not effected until the goods leave the seller’s sphere, usually by handing them over to the buyer at the place of destination.
(c) Delivery is effected when the goods are handed over to the freight forwarder.
Q 31-2
Could delivery be effected in the case of non-conforming goods? Compare and contrast the CISG and the UCC in this respect.
Under the CISG, there is no requirement that the goods be conforming in order for delivery to be effected; any lack of conformity is dealt separately. Under the UCC, there is a requirement that the goods are conforming in order for delivery to be tendered.
Q 31-3
According to the above case (C 31-1), what situations are excluded from the scope of Article 31 CISG?
Situations where the seller has to deliver the goods to the buyer’s place of business. In general, the seller only has an obligation to dispatch the goods; transport risks will be borne by the buyer.
Q 31-4
Article 31(b) CISG covers four different scenarios. Describe these.
Contracts for specific goods.
Contracts for unidentified goods to be drawn from a specific stock.
Contracts for unidentified goods to be manufactured.
Contracts for unidentified goods to be produced.
Q 31-5
Are goods in transit covered by Article 31(b) CISG?
No, goods in transit constitute a special delivery obligation not covered by Article 31(b). Arguably, if the location of such goods is known at the time of the conclusion of the contract, Article 31(b) could be used to establish the seller’s obligation to place the goods at the buyer’s disposal.
Q 31-6
What does ‘placing the goods at the buyer’s disposal’ actually mean?
Making the goods available to the buyer in such a way that it does not need to do anything more to take over the goods. Implicit in this is the seller’s agreement that the buyer take possession of the goods.
Q 31-7
Compare the above provisions of INCOTERMS® to the provisions of Article 31 CISG. What are the similarities and differences?
The EXW delivery obligation corresponds in substance to Article 31(c) CISG. The delivery obligation under CPT and CIP corresponds to Article 31(a) CISG. Under both CPT and CIP, the seller is obliged to clear the goods for export; this would act as a supplementary agreement to Article 31(a) CISG in practice.
Q 31-8
Why didn’t Article 31 CISG apply in C 31-2?
Because the court determines that the use of the INCOTERM® explicitly specified the place of destination and unloading. The seller was thus bound to deliver at a specific place.
Q 31-9
Compare and contrast Article 5(1) Brussels Convention with Article 7(1) Brussels Regulation (recast).
The Brussels I Regulation (Recast) makes an autonomous distinction for contracts of sale of goods and contracts for the provision of services, defining their place of performance uniformly across the EU. By contrast, the Brussels Convention did not make this distinction, leaving the determination of the place of performance to national law.
Q 31-10
How is the relationship between jurisdictional seat and place of performance resolved under Article 5(1) Brussels Convention and Article 31 CISG?
Under the Brussels Convention, the lex causae is decisive. Under Article 31 CISG, it is where the goods were handed over to a carrier or placed at the buyer’s disposal.
Q 31-11
What actions are governed by Article 7(1) Brussels Regulation (recast) in the case of the sale of goods?
All actions concerning the sale of goods, including specific performance, damages and actions for the price.
Q 31-12
How does Article 7(1) Brussels Regulation (recast) define the place of performance for contracts involving the sale of goods?
It defines the place of performance autonomously, having regard to the facts of the case, using actual criteria, rather than legal criteria.
Q 31-13
(a) What do the above cases have to say regarding the interaction between Article 5(1) Brussels Convention, Article 7(1) Brussels Regulation (recast) and the CISG?
(b) Is this convincing?
(a) Where the CISG applies as the substantive law, the place of delivery will be the place where the goods are handed over to the buyer. Article 7(1) Brussels Regulation prevails over Article 31 CISG.
(b) An argument against this is that it ignores the legal agreement of the parties. It would be more congruent to determine the place of jurisdiction according to the same criteria and the place of performance under the substantive law.
Q 31-14
According to C 31-4, what is the consequence of agreeing a “D” INCOTERM on the place of delivery in a contract involving carriage of the goods?
The rule in Article 31 CISG is generally displaced and the place of delivery is not when the seller hands over the goods to the first carrier, but at the intended destination of the goods.
Q 31-15
If the contract does not specify a delivery location, how do Article 30 and the supplementary rules Articles 31–33 guide a court’s analysis of the seller’s obligations? Consider the court’s reasoning in C 31-5 and apply your knowledge.
Article 30 requires the seller to deliver the goods as agreed, but if the contract is silent, Articles 31–33 supply default rules. Article 31 directs delivery to the buyer at the seller’s place of business unless shipment is involved, in which case delivery occurs when goods are handed to the carrier. Article 32 requires proper notice and arrangements if goods are shipped. Article 33 obliges the seller to deliver within the agreed time or, if none is set, within a reasonable period. Together, these provisions ensure courts can determine the seller’s delivery obligations even without a specified location.
Facebook
