Q 66-1
What are the consequences of the fact that the risk has passed to the buyer? See C 66-1 and 66-2 in this respect.
Once the risk has passed to the buyer, it must account for the full purchase price, although the goods have been lost or damaged, unless the loss or damage is due to an act or omission of the seller.
Q 66-2
How do we find out whether a contract term concerns the passing of risk? See also C 66-2.
It is a matter of interpretation under Article 8 CISG.
Q 66-3
Who bears the burden of proving whether the risk passed from the seller to the buyer?
The seller who has not received payment must, in order to claim the purchase price, prove that the risk had passed to the buyer at the time the goods were damaged or lost. The buyer who has paid the purchase price must, in order to claim restitution, prove that the risk was still on the seller when the damage or loss occurred.
Q 66-4
How will the rules on the passing of risk established in INCOTERMS® rules be interpreted in a CISG contract?
Where a ‘codified’ trade practice has been developed around a particular trade term, as is the case with INCOTERMS®, Article 8(3) CISG calls for full incorporation of those standard interpretations into the contract.
Q 66-5
Give an example of a loss of or damage to goods which is neither due to an act or omission of the seller nor to natural forces and which remains out of the sphere of influence of the buyer. See C 66-1 in this respect.
For example, acts of State, such as new laws, decrees or orders. If the goods are damaged or destroyed due to such act, the buyer remains bound to pay the purchase price if the act of State entered into force after the risk has passed.
Q 66-6
Articles 66 to 69 CISG govern the question of when the risk passes under an effectively concluded sales contract. Can the parties provide that the risk passes even before the contract has been concluded? See C 66-2.
Yes, the parties can, for instance, agree that the risk of casual loss or damage passes prior to the sales contract. In C 66-2, the defendant had taken into custody a horse for a certain period of time with the option to buy the horse after the period had elapsed. The parties had agreed that the defendant would make a down payment which was due regardless of whether or not the sales contract would be concluded. Thus, the court held that the parties made an agreement on the passing of risk for the time the contract had not yet been finally binding.
