Under Article 79 CISG, the buyer will be exempt from paying damages if its failure to take delivery constitutes a breach of contract but is due to force majeure. But this does not change the fact that the risk of damage to or loss of the goods passes at the moment the buyer ought to take delivery (Art 69(1)).

Because, under Article 69(1), the buyer had taken over the goods. Any additional contractual duties on the seller subsequent to delivery did not affect the passing of risk.

(a) According to the facts, the goods were to be delivered to a warehouse in Hungary and stored there. The seller would then issue invoices to the buyer which the buyer would not pay before the furniture had been delivered at the buyer’s premises. The court came to the conclusion that the place of delivery was the warehouse.

(b) Under the CISG, the passing of risk is linked to taking delivery of the goods, or to the moment delivery by the buyer should have been taken (see Art 69(1), (2)). Thus, the question of whether delivery had occurred was relevant for assessing whether the risk had passed. But it is not only the making but also the taking of delivery that is important; in the case at hand, the risk would have passed if the warehouse had been the place of delivery, if delivery had been due, and if the buyer had been notified or otherwise made aware of the fact that the goods had been placed at its disposal at the warehouse.

(c) The burden of proof is on the party that purports that the risk has passed. In the case at hand, the plaintiff, i.e., the party to whom the seller had assigned its claims against the buyer, had to prove that the risk had passed to the buyer and that the goods were destroyed after the risk had passed.