Q 86-1
(a) Which criterion is decisive in determining whether a situation falls within Article 86(1) or within Article 86(2) CISG?
(b) Where the buyer unjustifiably rejects the goods, Article 86 CISG does not apply. Will the buyer still have to take steps to preserve the goods?
(a) If the buyer is already in possession of the goods, Article 86(1) CISG applies, otherwise Article 86(2) CISG applies.
(b) In such a case, the Convention does not require the buyer to preserve the goods. However, as the buyer bears the risk of deterioration of the goods (cf Arts 67–69 CISG), it will take such steps in its own interest.
Q 86-2
Should the buyer be obliged to take possession of the goods and resell them if this would cause considerable inconvenience but the goods are subject to rapid deterioration? Discuss.
The question is controversial. In our view, the buyer should, in general, not be obliged to take possession and resell the goods, as this would unreasonably burden the buyer who then suffers not only ‘considerable inconvenience’ but also the risk inherent to the resale.
Q 86-3
Under Article 86(2) CISG, the buyer must only take possession of the goods on behalf of the seller if, among other things, it can do so without having to pay the purchase price. Do you think that it should be obliged to take possession of the goods where he has paid the price in advance?
Yes. Article 86(2) aims at avoiding further financial risk for the buyer. The question of whether it takes possession of the goods or not does not increase its risk, as the insecurity of return payment has been created beforehand, at the moment the buyer made the advance payment.
