Q 53-1
Does Article 53 CISG allow any leeway to the parties to agree on specific rights and duties not mentioned in the provision?
Yes, the provision gives precedence to the contractual agreement between the parties.
Q 53-2
Does Article 53 CISG, by only mentioning the buyer’s duty to pay the purchase price and take over the goods, treat a breach of these duties differently from other breaches of contract? See also Article 61 CISG.
No. Since these duties are the core duties of the buyer, however, this provision serves to clarify these obligations in the context of the remedies that can be sought for their breach under Article 61 CISG.
Q 53-3
(a) According to C 53-1), should any other agreements be considered when determining the buyer’s obligations?
(b) Why do you think this is the case?
(a) No. The court found that the agreement the buyer was relying on had no relation to the case and the seller had no knowledge of the agreement. Therefore, the buyer cannot rely on an extrinsic agreement as an excuse for non-payment.
(b) Because the seller cannot be expected to know of, or be held responsible for, dealings that the buyer has with a third party that may impact on his payment to the seller. Only the contractual obligations between buyer and seller are decisive.
Q 53-4
According to C 53-2, why didn’t the CISG (and Article 53) apply to assess the liability of the defendant?
Because the court determined that the defendant had assumed the payment obligations arising under the contract from another party, and that the question of the defendant’s liability was to be answered by the law governing the defendant’s assumption of the contractual obligations, an issue that was not covered by the CISG.
Q 53-5
(a) Who bears the burden of proof for delivery and payment, respectively? Can you see any practical issues with this rule?
(b) What evidence is required to support a successful claim under Article 53 CISG?
(a) and (b): Under the CISG, the seller bears the burden of proving that delivery was made in conformity with the contract, while the buyer bears the burden of proving that payment was made. A practical issue is that documentary evidence may be incomplete or ambiguous—for example, shipping records may not clearly show conformity, or bank transfers may be delayed or misattributed—creating uncertainty and litigation risk.
Q 53-6
(a) How is the currency in which the price has to be paid determined under the CISG?
(b) If the currency is to be determined according to Article 7(2) CISG, it is disputed whether the currency issue is to be resolved according to the general principles of the CISG or under the law applicable through the rules of private international law. Are there any provisions of the CISG which might establish a general principle as to the currency in which payment is to be made?
(c) How does the PICC 2016 answer the question as to the currency in which payment is to be made?
(d) Why does it not seem advisable to derive a general principle from Articles 31(c), 57(1)(a) CISG with a view to determining the applicable currency rate? Consider their importance from a practical point of view.
(a) Primarily, party agreement prevails (Art 6 CISG). In the absence of specific agreement, trade usages may play a role (Art 9(1) CISG) and, failing those, then Article 7(2) CISG applies.
(b) Articles 30 to 33 CISG could be of assistance in deriving a general principle that the currency of the contract should be the currency of the place at which delivery of the goods is made. Article 57 CISG determines the place of payment, which would be an appropriate starting point to determine the currency.
(c) The general rule is that the currency of the place of payment applies, except where another currency was expressed and that currency is not freely convertible or the parties have made a specific agreement in this regard.
(d) In practice, these two places may be different, in which case it would not be sense to use them to derive a general principle concerning the applicable currency rate.
Q 53-7
In light of C 53-3, it is possible to have claims in multiple currencies in the one proceedings?
Yes. As the court in that case stated, a claim for compensation for damages is separate from the claim for the purchase price. It is conceivable and even likely in international trade that the purchase price be paid in one currency, but damages incurred in another.
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