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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 56 [Price fixed by weight] [1]

[TEXT OF THE UNIFORM LAW]

If the price is fixed according to the weight of the goods [2], in case of doubt [3] it is to be determined by the net weight [4].

[COMMENTARY]

[1] This article provides a rule of interpretation which complements an incomplete price agreement.

[2] This is the case when the price per weight unit is named in the contract or can be deduced from the contract because the latter contains the total weight and the total price. In the latter case, however, it must be recognizable that the price is based on the weight. This is not so when the price was calculated for units, pieces, etc. and the weight is given only as an information.

The price is determined according to the weight, for instance, when bulk goods are traded. And those goods are delivered in part unpacked. If there is a relevant legal (Article 35, subpara. (d)) or contractual obligation, the goods have to be packed, and the buyer does, as a matter of principle, not have to return the packaging, even if the seller is not allowed to calculate it either in the weight of the goods or separately. Practices or the contract may stipulate differently as in leased packaging.

Article 56 is to be applied, in our view, also to weight clauses which, even though it is contradictory to the trend toward reducing the weight, are still used sometimes in trading machinery and equipment. They allow a reduction of the price if a certain minimum weight is not reached. In the case of doubt, the net weight would also be decisive to determine it.

[3] Doubt is excluded to the extent to which there is an established practice according to which the weight of packaging is included in the weight of the goods because it is unimportant in proportion to the weight of the goods. There is no doubt either when the clause gross for net has been agreed, according to which the gross weight is decisive, and/or when there are other relevant agreements between the parties.

[4] The net weight is the total weight minus the weight of the packaging. Should there be a change in that weight, for instance during transport a decrease in weight, the net weight at the place of delivery (Article 31) is decisive because the seller has to fulfil his obligations there. [page 213]

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Pace Law School Institute of International Commercial Law - Last updated September 25, 2002
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