10 February 1999,
1. [Seller’s claim] During the years 1995 and 1996, the [seller]—and in part company A. S.p.A., who the [seller] merged with on 23 December 1995—received various commissions by the [buyer], who is acting as a publishing house for art books. The orders concerned the printing, binding and delivery of art books and catalogues. With his claim, [seller] demands payment of outstanding invoices regarding various commissions. The dates of the invoices submitted lie in the period between 24 October 1995 and 25 June 1996. The [buyer] does not deny that the contracts were formed and deliveries were made. However, [buyer] claims that she is able to set-off various claims for damages as well as reductions in price. The background of the dispute is the [buyer]’s allegation that the [seller] repeatedly failed to deliver art books, respectively art catalogues, in time for exhibition openings or presentations. [Buyer] claims that, as a result, she lost the trust of extremely important private art patrons and consequently suffered large damages. […]
3. Claims set off by the [buyer]
3.1 Christian Vogt ‘In Camera’ […] d) aa) The buyer may claim damages under Art 45(1)(b) in connection with Arts 74–77 CISG, if the seller fails to perform his delivery obligation. In principle, the liability for damages is a liability for the guaranteed performance of the seller’s obligations, which is independent of the seller’s fault. In the meaning of this provision, ‘obligations of the seller’ are all obligations which the seller is subject to because of the specific legal transaction. They may result from an explicit provision or interpretation of the contract, from the supplementary provisions of the Convention as well as the relevant trade usages or the usages established between the parties. bb) Regarding the handing over of the goods, none of the parties plead that the [seller] was to perform the carriage of the goods. It is however disputed which party was to bear the risk for the forwarding agent. The [seller] is of the opinion that a dispatch ex-works was agreed upon. [Seller] submits that he organised the forwarder solely as a favor and without a corresponding obligation. The [buyer] in turn argues that the commission of the forwarding agency and the responsibility for its actions was the [seller]’s obligation. cc) Art 31 CISG, which deals with the content of the seller’s delivery obligation, distinguishes between contracts that involve the carriage of goods and such contracts where carriage is not necessary. Art 31 CISG does not include a situation where the seller himself has to deliver the goods to one of the buyer’s places of business. Such a form of delivery of the goods owed is not provided for in Art 31. In doubtful cases, such an obligation cannot be assumed: If the contract requires carriage of the goods at all, it is an obligation to dispatch the goods; in other cases the goods are to be placed at the buyer’s disposal at the seller’s place of business. The seller’s delivery obligation therefore consists in initiating the transport of the goods: He must hand over the goods to the first carrier for transmission to the buyer. By handing over the goods to the carrier for transmission to the buyer, the seller fulfills his delivery obligation. For this reason, the buyer may no longer hold the seller liable for non-performance under Art 45(1)(b) CISG, if the goods are destroyed or misdirected during transport or if the handing over to the buyer is delayed. The carrier’s mistakes are therefore not within the liability sphere of the seller. The question of whether the contract was fulfilled in time is therefore also determined by the timely dispatch and not by the time of arrival of the goods. dd) It is evident from the files and the corresponding statements of the parties that 28 September 1995 was agreed as ‘ready for shipping’. The [buyer] does not plead that the seller did not keep to this date, instead [buyer] even acknowledges that the seller made the goods ready for dispatch in time. [Buyer] further does not contend that the [seller] accepted a contractual obligation to effect delivery of the goods at the place specified by the [buyer]; she solely holds the view that the [seller] assumed the organization and the responsibility for the forwarding agent. It is therefore undisputed that the [seller] on 28 September 1995 handed over the goods to the carrier commissioned by him. By this action, [seller] fulfilled his obligations under the law and therefore performed within time.
III. Article 31(b) and (c) CISG
Under Article 31(b) CISG, where specific goods or goods from a specific stock are contracted for and the parties knew at the time of the conclusion of the contract where these goods were held or produced, the seller fulfils its delivery obligation by placing the goods at the buyer’s disposal at that place.
Article 31(b) CISG covers four different scenarios. Describe these.
Are goods in transit covered by Article 31(b) CISG?
What does ‘placing the goods at the buyer’s disposal’ actually mean?
If the contract does not require the goods to be transported, no specific place of delivery has been agreed, and the specific requirements of Article 31(b) CISG are not fulfilled, then the place of delivery is determined under Article 31(c) CISG. Here, the place of delivery and performance of the delivery obligation is the seller’s place of business.
IV. INCOTERMS® and Article 31 CISG
Article 31 CISG only applies if the seller is ‘not bound to deliver the goods at any other particular place’. If the place of delivery is determined by a delivery obligation under INCOTERMS®, and INCOTERMS® apply to the contract, an analysis of the interaction between INCOTERMS® and Article 31 CISG is required.
In a number of cases, the INCOTERMS® delivery terms lead to the same place of delivery and the same delivery obligations that would apply by default under Article 31 CISG. Since, in such a case, the parties have failed to agree upon ‘another particular place’, Article 31 CISG continues to apply and the relevant INCOTERMS® assume a merely supplementary function.
Cl A4 EXW INCOTERMS® (2010):