Chengwei Liu [*]
I. General: place of performance
a. The place where a party must perform a contractual obligation is important in a variety of contexts. In the Convention, of particular relevance are Articles 31 and 57, which, respectively, specify the place where goods are to be delivered and the place where payment is to be made. In particular, CISG Art. 31 "covers three cases, numbered (a) to (c), or rather four cases, if we include the introduction to the article. The first case is that the seller is bound to deliver the goods at a particular place (the introduction). The three other cases (a, b and c) presuppose that he is not so bound. Under rule (a), if the contract of sale involves carriage of the goods, delivery consists in handing the goods over to the first carrier for transmission to the buyer. The other two cases […] refer to two different situations in which the contract does not involve carriage of goods. The gist of rules (b) and (c) is that the goods are delivered at the seller's place of business." Under CISG Art. 57(1), "[i]n the absence of agreement, payment must be made at the seller's place of business (Article 57(1)(a)). Where there is an agreement for immediate payment - 'cash against documents' - payment is to be made at the place where the goods or the documents are transferred (Article 57(1)(b)). In a sale involving carriage, if immediate payment has not been agreed upon, the seller's place of business remains the place of payment." Furthermore, CISG Art. 57(2) anticipates the possibility that the seller might change its place of business following the conclusion of the contract, in which case any increase in the expenses incidental to payment caused by the change in the place of business is to be borne by the seller.
b. Resembling to a substantial extent the CISG approach, the counterpart PECL provisions in Art. 7:101 also contemplate that, above all, where the place of performance is fixed in the agreement or determinable from the agreement, such an agreement prevails (introduction of para. (1)). Rules are however needed to cover cases where the contract is silent on the matter and circumstances do not indicate where performance should take place. PECL Art. 7:101(1) provides two solutions. The general rule is that a party is to perform its obligations at its own place of business (Art. 7:101(1)(b)). The second rule is specific to monetary obligations where the converse solution applies, namely that the obligor is to perform its obligations at the obligee's place of business (Art. 7:101(1)(a)). These solutions may not be the most satisfactory in all cases, but they do reflect the need for rules where the parties have not made any other arrangement or where the circumstances do not indicate otherwise. In applying such solutions, on the other hand, if the party at whose place of business performance is to be made has more than one place of business, the place of performance is that which has the closest connection with the contract and its performance having regard to the circumstances known to or contemplated by the parties at the conclusion of the contract. This is a clear rule in PECL Art. 7:101(2). Although no counterpart rule is found under CISG Arts. 31 and 57, a general rule to that effect has already been introduced in CISG Art. 10(a). However, it remains difficult to give an exact definition of the term "place of business". In most cases it is a party's permanent and regular place for the transaction of general business and not a temporary place of sojourn during sales negotiations. In any event, if a party has no place of business, performance is to be7 effected at his habitual residence. This is a "factual" not a "legal" concept. A person has his habitual residence at the place where he actually lives, regardless of whether he has a permit to live in the country, and whether he sometimes goes to another place to stay for some time, provided that he normally returns to the first place. This is the rule contemplated by PECL Art. 7:101(3). Although no counterpart rule is found in the Convention, it again follows from the general rule of CISG Art. 10(b) that the place of business referred to in CISG Arts. 31 and 57. includes a party's habitual residence where that party has no place of business.
c. Hence, in general, there is no difference in substance between the CISG and the PECL as regards the place of performance. In addition, it is to be noted from the outset that many of the court decisions concerning CISG Arts. 31 and 57. have referred to these rules for the determination of the jurisdiction (particularly that under Art. 5(1) of the 1968 Brussels and 1988 Lugano Conventions). Most national courts interpret the place of delivery under Art. 31 as the place of performance of delivery for purposes of determining jurisdiction where the CISG governs the place of delivery. However, it has been appropriately noted [see Austria 10 September 1998 Oberster Gerichtshof [Supreme Court]] that when the parties agreed on a certain place for delivery, they would envisage aspects such as the costs of the carriage of goods, the modalities of delivery, and the bearing of risk. It would be inappropriate to combine these issues with matters of jurisdiction, especially, if the place for delivery is neither the place of business of the seller, nor that of the buyer. In this case, the Supreme Court of Austria has added, however, that it is a matter of interpretation whether a contractual term fixing the place for delivery is, at the same time, intended to determine special jurisdiction under Art. 5 No. 1 of the Lugano Convention. It has been noted, on the other hand, the issue of whether Art. 57. grants jurisdiction to national courts with respect to disputes concerning payment of the purchase price independent of national laws remains unresolved. Regardless of the ultimate resolution of this issue, "parties to sales transactions subject to the CISG are well-advised to utilize choice of forum provisions. Unlike some other provisions, there is broad consensus among national courts with respect to the enforceability of forum selection agreements".
d. In order to supplant the operation of CISG Arts. 31 and 57, however, "the forum selection agreement must comply with stringent requirements established by national courts. The forum selection provision should be express. Past practices between the parties in prior transactions are usually not sufficient to overcome this requirement. In addition, the mention of bank accounts and other commercial relationships in states other than where the delivery of the goods occurs is insufficient to constitute a forum selection agreement in the absence of an express intent by the parties. Finally, usage of the trade in question also fails to constitute a forum selection agreement in most circumstances. Such usages would only serve to select the forum if it was widely known in the trade that certain actions undertaken by the parties to the transaction had the indelible effect of selecting an exclusive forum for the resolution of disputes between the parties".
II. Place determinable from the contract, usage or established practice
e. Very often the place of performance is fixed in the agreement or determinable from the agreement. Neither CISG Arts. 31 and 57. nor PECL Art. 7:101 denies the fact that the place where an obligation is to be performed is often determined by an express term of the contract or is determinable from it. It is obvious, for instance, that an obligation to build must be performed on the construction site, and that an obligation to transport goods must be performed in accordance with the agreed route. In this respect, it is the principle of contract freedom (party autonomy) that underlies both the Convention and the PECL; therefore, where parties have agreed on a particular place of performance, such an agreement prevails over the provisions of either the Convention or the PECL.
f. Many CISG decisions dealing with Art. 31 have refer to the parties' autonomy. For instance, a German Appellate Court [8 January 1997 Oberlandesgericht Köln] held that "the legal consequences of Art. 31 CISG only come into play if the seller is 'not bound to deliver the goods at any other particular place.'" Similarly, another German Appellate Court [3 December 1999 Oberlandesgericht Münichen] held that according to CISG Art. 31 "the contractual agreement prevails"; and the Supreme Court of Italy [10 March 2000 Suprema Corte di Cassazione] has held that "the parties' contractual autonomy prevails over that provision [CISG Art. 31]". Of particular frequency and significant relevance, the parties agreement will normally spell out the seller's shipping obligations quite precisely by adopting a recognized trade term such as FOB, CIF, etc., which are defined in the ICC INCOTERMS. Rather often the parties refer to customary delivery clauses, in particular to INCOTERMS. INCOTERMS, properly invoked, can be very useful to define precisely some of the central steps that the parties should take. It has been noted that if a contract contains an explicit reference to INCOTERMS, no problem arises. The INCOTERMS are so complete that there is likely no need to supplement them with the rules of the Convention. They have been "derogated" by the contract. If a trade term is used but there is no explicit reference to INCOTERMS, and if it is not indicated by any other fact (such as the "previous course of dealing" of the parties) that INCOTERMS or some other set of provisions are to apply, it is, however, more uncertain whether Art. 31 of the Convention has any significance.
g. The position is the same under Art. 57 CISG. Because of the importance of the question at hand, the contract will usually contain specific provisions on the mode and place of payment. Accordingly, the rule in CISG Art. 57 is expressly stated to apply only if "the buyer is not bound to pay the price at any other particular place". This result is also reached through the operation of CISG Art. 6, which can be regarded as an orientation of the parties towards an agreement of the place of payment. However, the express reiteration of the principle (in CISG Art. 57) emphasizes the importance that the contract will usually attach to the place of payment of the price. Enderlein and Maskow state in this respect: "The parties, in general, attach great attention to the terms of payment which include the place of payment. Where an express agreement of the place of payment is lacking, an implicit agreement may be inferred from the way in which the payment is made. This may be done considering non-governmental codifications for specific categories of payment (Uniform Customs and Practices for Documentary Credits -- Article 9 fol; Uniform Rules for Collections -- Articles 11 and 12) which become binding through the agreements between the parties, business conditions of the banks engaged or directly as an established practice." Thus, a German court [24 November 1998 Landgericht [District Court] Bielefeld] held: "According to Art. 57 CISG, which governs the contract between the parties, the place of performance is the [seller]'s place of business -- however, only if the [buyer] is not bound to pay the purchase price at any other particular place. The place of performance is primarily to be determined by the agreement between the parties (Art. 6 CISG), respectively by any usage to which they have agreed to and any practices, which they have established between themselves (emphasis added)."
h. Indeed, it is also the case for CISG Art. 31 (and PECL Art. 7:101(1), too) that the place of performance may be determined according to the applicable usage and practice established between them. Generally speaking, from either CISG Art. 9 or its counterpart PECL Art. 1:105, it follows: "Usages and practices may fix a different place of performance, [...]. It is probably a universal usage that a customer of a bank who wishes to draw his money will have to come to the bank. However, if the bank agrees to send the money to a customer the money will travel at the bank's risk." On the other hand, the ruling is also of significance in [Italy 7 August 1998 Corte di Cassazione], where the Italian Supreme Court ruled that the derogation contemplate under CISG Art. 57(1), "cannot consist of a mere practice; the practice may simply be the consequence of a mere tolerance by the seller and, as such, incapable of establishing a place of performance different from the legal one". The reason of particular relevance is that, under either CISG Art. 31 or Art. 57, the alleging party is under an obligation to prove its claims agreement on the place of performance, namely to establish the existence of a relevant agreement, usage or practice. That is to say, the party asserting that a particular place of performance - other than the place provided for in Arts. 31 and 57 - had been agreed upon (or established by a usage or practice) must prove such agreement.
i. Thus, regarding the application of CISG Art. 57, the Italian Supreme Court [7 August 1998 Corte di Cassazione] ruled that the wording of CISG Art. 57(1) "clearly indicates that the buyer must be 'bound' to pay at a different place, which is to say, obliged (the word is repeated in the subsequent Article 58 CISG), by virtue of a title that may be legal or contractual"; therefore, "in the absence of undisputed facts capable of justifying a derogation from the legal rule regarding the place of performance, such place ([...]) must be determined on the ground of the general rule set out in Article 57(1) CISG". In a similar line, a German Appellate Court [16 July 2001 Oberlandesgericht Köln] dealing with CISG Art. 31 stated: "The contract between [seller] and [buyer] was concluded orally and does not explicitly determine the place of performance. The parties undisputedly agreed on a delivery 'free farm', but this simply means that the [seller] was to bear the costs of transport. Under Art. 8(1) and (2) CISG, a contractual clause is to be interpreted according to the parties' hypothetical intent or, in case that intent cannot be determined, according to the understanding that a reasonable person of the same kind would have had in the circumstances. As there are insufficient grounds to determine the hypothetical intentions of the parties, the clause 'free farm' needs to be interpreted under objective criteria. Following the prevailing opinion, the similar clause 'free house' does not possess an unambiguous meaning in trade; rather, the clause is to be interpreted following the circumstances of each individual case (citations omitted). However, there are no objective criteria which could decide the place of delivery in the present case. Thus, the Court falls back on the general principles of Art. 31 CISG."
j. Regarding the burden of proof, the ruling of a German court [13 April 2000 Amtsgericht [Lower Court] Duisburg], which deals with the proof under CISG Art. 31 but seems to apply mutatis mutandis to that under CISG Art. 57, provides some guidance: The onus of proof is on "the party who contends that the parties derogated from the Convention by agreeing on a different place of performance". The wording of Art. 31 "does not lead to a shift in the burden of proof"; the stipulation that "if the seller is not bound to deliver the goods at any particular place, his obligation to deliver consists" in the acts referred to in paras. (a)-(c) is "simply a clarification". This interpretation "finds its first footing in the wording of the provision itself. The use of the word 'particular' shows that the [contending buyer] bears the onus of submission and proof that a place for the handing over of the goods was agreed on." This is "further supported by the structure of Art. 31 CISG. The paragraphs (a) and (b) provide the rules for special instances, followed by the general rule in paragraph (c). It would be inconsistent with this structure to apply paragraph (c) only if the [challenged] seller proves that a particular place of performance has not been defined." Finally the interpretation "corresponds to the systematic position of Art. 31 CISG and its corresponding purpose. The provision applies to cases in which the parties failed to form a contractual agreement (citation omitted). Keeping this in mind, it would be unreasonable if the provision at the same time put the burden of proof on the seller. If that was the case, Art. 31 CISG would deviate from the general rule that each party bears the onus of proof for the provisions which are favorable to him and which he therefore relies upon (emphasis added). In the case of an agreement stipulating the [buyer's] place of business as the place of performance, the favored party is the buyer. Were Art. 31 CISG to be interpreted as putting the burden of proof on the seller, the provision would effectively restrict its own sphere of application. That is not the purpose of Art. 31 CISG."
k. In any event, if "there is no basis for letting the [performing party] bear the risk of any disagreement between the parties", namely where the contending party has not proved that it derogated from Arts. 31 and 57 CISG by agreeing with the other party on a particular place and where it neither submits, nor is it evident that a trade usage or business practice in the meaning of Art. 9 CISG existed between the parties to that effect, the general rule set out in CISG Arts. 31 and 57 applies. Indeed, the Convention gives general but useful answers to questions that the parties have not answered by contract provisions, by invoking relevant usages or by incorporating established practice or trade terms such as the ICC INCOTERMS. In addition, the Convention provides a way to avoid or resolve disputes in a wide range of situations, not mentioned in, e.g., INCOTERMS, when a party fails to perform his duties under the contract.
III. Creditor's place for money obligations
l. In many systems the place of performance for money obligations, if it has not been agreed expressly, is the creditor's residence or place of business. It is held that in commercial transactions "the general rule would seem to be that payment is to be made at the place where the creditor resided or carried on business at the time of the contract." This is also the approach adopted under both CISG Art. 57 and PECL Art. 7:101(1)(a), which each confirms that: "If the place of performance is not fixed or determinable from the contract the place of performance of a money obligation is the creditor's place of business. 'The debtor must seek the creditor'. This rule will leave the debtor with a free choice of how it will send or transfer the money to the creditor, which, when the debtor carries the risk of transmission, will have no right to interfere with the mode of transportation or transfer used."
m. It is stated that the determination of the place of payment, as it is made in CISG Art. 57(1), "entails generally four essential consequences for the buyer: First, he must initiate the payment so early that it arrives on the settlement date (Article 58) at the place of payment. He thus bears the risk of a delay insofar as he is not exempted from liability under Articles 79 and 80. Second, he must take all measures and go through all the formalities at a commercial level and vis-à-vis the authorities so that the payment can be made at the place of payment, i.e. exceptionally also the fulfillment of formalities in the seller's country (Article 54). Third, he must bear the cost of the payment procedure up to this place. Fourth, he also bears the risks up to this place, i.e. when the initiated payment procedure is not successful because of the bankruptcy of a bank engaged it has to be repeated." It is thus "a question of considerable importance in international trade because of the widespread existence of exchange controls and other restrictions on the transfer of funds". As it is stated in the Secretariat Commentary: "It is important that the place of payment be clearly established when the contract is for the international sale of goods. The existence of exchange controls may make it particularly desirable for the buyer to pay the price in his country whereas it may be of equal interest to the seller to be paid in his own country or in a third country where he can freely use the proceeds of the sale." Thus, the principle on which the CISG is based, "characterizes the obligation of payment as an obligation to be performed at the creditor's place of business in order to ensure that the seller can indeed dispose of the proceeds of the transaction without having to confront the foreign exchange rules of other countries".
n. Furthermore, CISG Art. 57(1)(b) (no counterpart rule is found under PECL Art. 7:101) specifically deals with the place of payment when payment is to be made against the handing over of the goods or of documents. It "provides that payment must be made at the place where the handing over takes place. This rule will be applied most often in the case of a contract stipulation for payment against documents. The documents may be handed over directly to the buyer, but they are often handed over to a bank which represents the buyer in the transaction. The 'handing over' may take place in either the buyer's or the seller's country or even in a third country." The Austrian Supreme Court [10 November 1994 Oberster Gerichtshof] has held that CISG Art. 57(1)(b) "ties up to the principle of mutual simultaneous performance laid down in Article 58 CISG (emphasis added); it is only reasonably applied where intermediaries (e.g., a warehouse-keeper or carrier) are used and payment is to be made to these intermediaries. Otherwise payment must be made to the seller. In this case, after delivery of the goods, the buyer has to pay the purchase price at the seller's place of business (citation omitted)." Thus, the German Supreme Court in [4 December 1996 Bundesgerichtshof] has ruled that "the regulation of CISG Art. 57(1)(b), according to which, under certain circumstances, the payment must take place at the location of the handover of the goods, does not apply because the conditions of payment agreed upon [...] do not contain a reciprocal and simultaneous [performance] provision in the sense of the mentioned rule (emphasis added)." According to Enderlein and Maskow, if the payment is bound only to the handing over of the goods, the place of payment under the CISG is the place where the goods are handed over to the first carrier, the place where the goods are made available or the place of business of the seller (Art. 31); where payment is to be made against the handing over ... of documents, the documents mentioned here are obviously the same as under Art. 58, i.e. the documents which entitle to dispose of the goods. Payment is to be made only against the handing over of the documents if the seller has determined it pursuant to Art. 58 or if the terms of payment "cash against documents" or "payment according to letter of credit" have been agreed. Where the documents are to be handed over is made dependent in the Convention on the agreement between the parties (Art. 34). But regularly established practices and/or rules referred to by the parties in one form or another intervene here.
o. CISG Art. 57(1) has attracted a vast amount of comment in case law. For instance, the Italian Supreme Court [7 August 1998 Corte di Cassazione] has held: "The meaning of this provision [CISG Art. 57(1)] is clear enough: it sets out a general rule whereby the buyer has to pay the seller at the place of business of the latter; the buyer, however, may be obliged to pay the price 'at any other particular place', but the existence of such an obligation must obviously descend from a certain source; if, finally, payment is to be made against the handing over of the goods or the documents, the place of payment coincides with the place where the handing over takes place." This Article provides, according to the Italian Supreme Court [14 December 1999 Corte di Cassazione], "a general rule, which does not approve the payment in any place other than seller's place of business, unless defined otherwise by the parties, law or convention regulation". That is to say, as a Belgian Appellate Court [15 May 2002 Hof van Beroep Gent] explained: "According to article 57(1) CISG, without any contrary stipulation the payment of the price - which undoubtedly is the principal obligation of the buyer - has to be made at the place of business of the seller."
p. Regarding the respective application of the variants indicated in CISG Art. 57(1), a German court [19 January 2001 Landgericht [District Court] Flensburg] has held: "According to Art. 57(1)(a) CISG, the obligation to pay the purchase price under a sales contract is generally an obligation to be performed at the creditor , i.e., the [seller] , place of business, provided that (i) a seller performed in advance his delivery duties under the relevant sales contract; and (ii) the obligations of the parties are not to be performed concurrently pursuant to Art. 57(1)(b) CISG." And the Austrian Supreme Court [22 October 2001 Oberster Gerichtshof] has held: "Failing an agreement to the contrary, the interpretative rule of Art. 57(1)(a) CISG determines that the [buyer] was bound to pay the price at the [seller's] place of business in Hungary (the [seller's] place of business needs to be established under Art. 10 CISG). The purchase price is a debt payable at the creditor's place of business (annotation omitted). That the prerequisites of Art. 57(1)(b) are met (place where the handing over of the goods takes place), was neither submitted nor has it been established." It is similarly analyzed by a German court [20 September 2002 Landgericht [District Court] Göttingen] that: "According to Art. 57(1)(a) CISG, the buyer is obliged to pay the purchase price at the seller's place of business, unless the parties provided otherwise. The parties have not provided for a specific provision on the place of performing [buyer]'s payment obligation under their sales contract. Further, payment of the purchase price was not to be effected concurrently with provision of the goods (Art. 57(1)(b) CISG)." A German Court of Appeal [10 December 2003 Oberlandesgericht Karlsruhe] has also held that according to CISG Art. 57(1)(a), "the buyer has to pay the purchase price at the seller's place of business if - as is the case here - nothing else has been agreed and the payment is also not to be made against the handing over of the goods or of documents."
q. Moreover, Enderlein and Maskow note: "The rule only mentions the 'price', but is to be applied, as we believe, also to other payments under the contract, like the payment of damages, liquidated damages, interests and reimbursement of expenses. Since there is not regularly a direct dependence between performance and counter-performance, and in particular no contemporaneous performance, this refers above all to subpara. (a) with the 'seller' having to be read as the 'obligee' and the 'buyer' as 'obligor'." Thus, the decision of a German court [17 December 2002 Landgericht [District Court] Giessen] "joins the opinion commonly adapted nowadays that for place of performance of an obligation to repay the purchase price (emphasis added), an obligation not specifically regulated in the CISG, one may look to Art. 57(1)(a) CISG by way of analogy." A German Appellate Court [10 December 2003 Oberlandesgericht Karlsruhe] ruled: "Even if the freight costs (emphasis added) are shown separately, they form a part of the purchase price in the sense of the CISG (Art. 31 CISG; annotation omitted), which thus, also pursuant to Art. 57(1)(a) CISG, has to be paid at the [buyer]'s place of business." Another German Appellate Court [2 July 1993 Oberlandesgericht Düsseldorf] has held that the basic solution with regard to the sales price in CISG Art. 57(1)(a) is used as "a gap filler under Art. 7(2) of the CISG" in determining the place of performance for the obligation to pay damages; where the court stated: "The place of performance for the indemnification claim pursuant to Arts. 45, 74 of the CISG, however, is not set forth by the CISG. It is determined from the Convention's general principles which are derived from Art. 7(2) of the CISG. Art. 57(1)(a) of the CISG provides [...] that the duty to tender payment of the purchase is an obligation to be performed at the seller's place of business. Accordingly, the place of performance is where the seller maintains its principle place of business (citation omitted). Therefore, if the place where payment is to be tendered [...] is the seller's place of business, it then seems to be appropriate to recognize this as a general rule governing the place of performance for all claims for payment under the CISG. The reasoning behind a rule governing the place of performance for claims for the purchase price are just as applicable to other claims for payment (emphasis added). The claim that seller should be required to take over buyer's liability to buyer's sub-purchaser pursuant to Arts. 45, 74 is keyed to payment of money (citation omitted). Consequently, performance is to be tendered at the seller's principal place of business."
r. The case law on the question at issue  also indicates, albeit not uniformly, that the rule established by CISG Art. 57(1) (referring above all to subpara. (a)), establishing payment of the price at the seller's place of business as a general principle, can be applied also to other monetary obligations emerging from the contract of sale, such as compensation due from a party who has been in breach of contract, or return of the sale price by the seller following avoidance of the contract. A German Appellate Court [28 October 1999 Oberlandesgericht Braunschweig] has generally held: "Under Art. 57(1) CISG, the place of performance for the [buyer's] obligation to pay the purchase price is the seller's place of business. The secondary obligations under Art. 61 CISG - including the above-mentioned claim for damages - follow the primary obligation of payment of the purchase price. Consequently, the place of performance for a remedy [of monetary nature] for breach of contract is also determined by Art. 57(1)(a) CISG" (citation omitted).
s. In addition, it is to be noted that payment is usually made only after the seller has received an invoice. The relevant provision in CISG Art. 57(1) only speaks of the situation where the buyer is bound to pay at a particular place. This would seem to have a bearing on a clause in the seller's invoice stating that payment is to be made to the seller's account in a certain bank. The invoice may indicate which place of business the seller considers to be relevant, and such a statement may be interpreted as acceptance of payment being made at that place. On the other hand, the buyer is not bound by such an indication. It may well be that the seller, for his own convenience, wishes payment to be made at a particular place. If such a clause is not based on the contract it may be interpreted as a statement by the seller that he will accept payment to have been adequately made if made in time to that account. It is clear that the seller cannot unilaterally impose on the buyer an obligation to make payment in such a manner. Article 57 of the Convention is thus applicable irrespective of such a clause in the invoice.
t. The above comments and decisions focusing on CISG Art. 57(1) to a large part apply mutatis mutandis to the consequences under PECL Art. 7:101(1)(a). A slight difference (except for the absence of a rule similar to CISG Art. 57(1)(b)) is found, however, that the place referred to in PECL Art. 7:101(1)(a) is expressly limited to "at the time of the conclusion of the contract"; whereas under the Convention, this reference must be deduced from the text of Art. 57(2), the idea underlying which is to be deduced vice versa from the PECL wording "at the time of the conclusion of the contract". If one accepts the soundness of the proposition that the debtor must "follow" the creditor's place of business, "then it seems reasonable to allow the [debtor] to claim reimbursement for any additional expenses incurred by him because of a change in the [creditor]'s place of business". This is made clear in CISG Art. 57(2). In providing that the seller must bear any increase in the expenses incidental to payment which is caused by a change in its place of business subsequent to the conclusion of the contract, Art. 57(2) seems to impose on the buyer the obligation to pay the price at the seller's new address (cf. infra. para. u). This being so, it is necessary that the seller should have informed the buyer of the change in a timely manner. Under Art. 80 of the Convention the seller has no right to rely on any delay in payment of the price caused by late notification of the change of address.
u. Although no counterpart is found under the PECL expressly resembling CISG Art. 57(2), it is submitted that a similar result may be reached with the emphasis on the wording in PECL Art. 7:101(1)(a) of "at the time of the conclusion of the contract", particularly on the basis of the PECL Comment, where it is clearly stated that: "The place of performance is the party's place of business (or his habitual residence) at the time of the conclusion of the contract. If after that time the party moves to another place, the first place remains the place of performance. However, if the party chooses to move the place of performance to its new place, good faith requires that it should be permitted to do so unless it will cause an unreasonable inconvenience for the other party or where the party which moves does not notify the other party in due time, see Article 1:201. If as a result of a change of the place of performance, there is any increase in the expense of performance, this increase must be borne by the party which has changed the place of performance. If as a result of the change of the place of performance, the risk of transportation is perceptibly increased, the party whose change of place of performance increases the risk of transportation will have to carry that risk." Indeed, it has been codified in Art. 6.1.6(2) of the UNIDROIT Principles, which establishes a general rule that each party must bear any increase of expenses occasioned by a change in its place of business.
IV. Debtor's place for other obligations
v. It seems to be generally accepted that for obligations other than money obligations the place of performance is, unless otherwise agreed, the debtor's residence or place of business. This is clearly stipulated in PECL Art. 7:101(1)(b), and also explained in the Official Comment on that provision: "As far as obligations other than money obligations are concerned the place of performance is the debtor's place of business. This is in conformity with the general principle that in cases of doubt the debtor is implied to have undertaken the least burdensome obligation."
w. Under the Convention, Art. 31, which states the obligation to deliver "in a dispositive rule" due to its being preconditioned by parties' particular agreement, specifies the place of performance of the seller's duty of delivery. The provision fixes where the seller has to deliver the goods and what the seller has to do for that purpose. Art. 31 addresses three different cases for which different rules apply. The general rules, however, appears to be that the seller's place of business is preferred as the regular place of performance. This is supported by the ruling of a German Appellate Court [16 July 2001 Oberlandesgericht Köln], which held that "Art. 31(b) and (c) regulate the buyer's duty to collect the goods, whereas Art. 31(a) specifies the seller's obligation to deliver, if the contract involves the carriage of the goods, as complied with when handing the goods over to the first carrier for transmission. Thus, the provisions of the CISG set the general principle that the place of performance for the obligation to deliver is the seller's place of business (citations omitted)." Unlike the general distinction between money obligations and other obligations, however, "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 (emphasis added). 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 (citation omitted)."
x. Among the three paragraphs of CISG Art. 31, para. (a) refers to the contract of sales involving carriage. According to Enderlein and Maskow, this happens regularly in the international sale of goods, unless the goods are already in the possession of the buyer (e.g., in the event of a sale of an object that had originally been leased or goods that were available for inspection) or the buyer himself collects the goods from the seller (e.g., in the event of the clause Ex Works). International sales contracts usually involve several carriers. A carrier is the collective term used for the different means of transportation (see, for instance, multimodal carrier). Here carriage is always transport by one or several independent carriers. Insofar as the parties have their own vehicles and therewith transport the goods, this does not fall under carriage. The goods may, however, also be handed over to a carrier which was hired by the buyer, if the clause FOB was agreed, in which case the buyer will have to provide a means of transportation. To what extent a forwarding agent can be considered as the carrier depends on whether he himself undertakes to transport the goods. In any event, if the seller has not undertaken to perform any part of the transportation, his duties should not depend on where it is possible to find an independent carrier. The principal function of Art. 31(a) is to provide a rule for the cases in which it is clear that the seller has a duty of transportation but no further indication of the extent of his duties can be found. The rule that handing over the goods to the first carrier, rather than shipping the goods in a ship, constitutes delivery makes the Convention rule coincide with the trade terms already defined in the ICC INCOTERMS.
y. In cases not within para. (a) of Art. 31, which "means that there is neither an arrangement under the contract as to the place of delivery nor is carriage an obligation of the seller", Art. 31(b) applies, which covers future goods - goods to be manufactured or produced at a particular place - and goods to be drawn from a specific stock as well as specific goods. The second alternative of Art. 31 requires, first, that no carriage of the goods in the sense of Art. 31(a) is involved so that it is the buyer's task to get possession of the goods. Secondly, specific goods or goods of a specific stock or goods to be manufactured or produced are required. The third requirement is that both parties knew when the contract was concluded that the goods were (or were to be manufactured or produced) at a particular place. If those conditions are met, the seller has to place the goods at the buyer's disposal at that place. In other cases, not covered by subparagraphs (a) and (b) of Art. 31, Art. 31(c) "reduces the seller's liability to place the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract". Although subparagraph (c) is "a residuary rule" to cover those situations not discussed in subparagraphs (a) and (b), it does not state a rule for "all other cases." In particular, the contract may provide for delivery to be made at the buyer's place of business or at some other particular place not mentioned in this Article. The opening phrase of Art. 31 recognizes that in all such cases delivery would be made by handing over the goods or by placing them at the buyer's disposal, whichever is appropriate, at the particular place provided in the contract.
z. The gist of the rules in subparas (b) and (c) (of CISG Art. 31) is that the goods are delivered at the seller's place of business. However, both rules require the goods to be placed at the buyer's disposal, which means that "the seller has done that which is necessary for the buyer to be able to take possession. Normally, this would include the identification of the goods to be delivered, the completion of any pre-delivery preparation, such as packing, to be done by the seller, and the giving of such notification to the buyer as would be necessary to enable him to take possession." In general, "the obligation to deliver in such circumstances consists of taking all steps necessary under the contract", so that the buyer has nothing else to do other than to take the goods at the place of delivery. In addition, if the goods are in the possession of a bailee, such as a warehouseman or a carrier, they might be placed at the disposal of the buyer by such means as the seller's instructions to the bailee to hold the foods for the buyer or by the seller handing over to the buyer in appropriate form the documents which control the goods.
* Chengwei Liu: LL.M. of Renmin University of China; from Global Law Office, Beijing; <firstname.lastname@example.org>.
1. See Comment A on PECL Art. 7:101 at <http://cisgw3.law.pace.edu/cisg/text/peclcomp31.html#cnpc>, where it is made clear: "The place of performance is significant in several respects. A party who is to perform services will have to bear the inconvenience and the costs of presenting himself at the place and tendering performance there. For a debtor to tender or offer performance at a wrong place will often constitute a non-performance. In a contract for the delivery of goods the party who is to perform will in general have to bear the costs and carry the risk of the goods until they have been put at the disposal of the creditor at the place of performance. A creditor who is unable to receive performance in due time because it mistook the place of performance may also fail to perform the contract or bear the risk of a non-performance by the other party […]."
2. See Jan Hellner, "The Vienna Convention and Standard Form Contracts": Petar Sarcevic & Paul Volken eds, International Sale of Goods: Dubrovnik Lectures, Oceana (1986), Ch. 10, pp. 343-344. Also available online at <http://cisgw3.law.pace.edu/cisg/biblio/hellner.html>.
3. See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986), pp. 81-82. Also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-57.html>.
4. See Digest 2 on CISG Art. 57. in "The UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods" (June 2004). Available online at <http://cisgw3.law.pace.edu/cisg/text/anno-art-57.html>.
5. Cf. Art. 6.1.6 (Place of performance) of the UNIDROIT Principles and its Comment (specifically Comment 2).
6. Supra n. 1, Comment F.
7. CISG Art. 10(a) reads: "For the purposes of this Convention: (a) if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract."
8. Supra n. 1, Comment E.
9. Supra n. 1, Comment G.
10. CISG Art. 10(a) reads: "For the purposes of this Convention: (b) if a party does not have a place of business, reference is to be made to his habitual residence."
11. See Jacob S. Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods", Comment 2 (c). Available online at <http://cisgw3.law.pace.edu/cisg/text/ziegel31.html>.
12. For relevant decisions, see Digest 2 on CISG Art. 31 (infra n. 36); Digests 4, 5 on CISG Art. 57 (supra n. 4).
13. See Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer and Marisa Pagnattaro, "The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence": 34 Northwestern Journal of International Law and Business (Winter 2004), p. 387; also available online at <http://cisgw3.law.pace.edu/cisg/biblio/dimatteo3.html>.
14. Citing Willibald Posch & Thomas Petz in "Austrian Cases on the UN Convention on Contracts for the International Sale of Goods": 6 Vindobona Journal of International Commercial Law and Arbitration (2002) 1-24, at 14-15. Available online also at <http://cisgw3.law.pace.edu/cases/980910a4.html>.
15. Citing Willibald Posch & Thomas Petz; id.
16. See Larry A. DiMatteo etc., supra. n. 13; pp. 373-374.
17. Id., pp. 374-375.
18. Supra n. 1, Comment B.
19. Supra n. 5, Comment 1.
20. See Germany 8 January 1997. Oberlandesgericht [Appellate Court] Köln; case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/970108g1.html>.
21. See Germany 3 December 1999 Provincial Court of Appeal München; case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/991203g1.html>.
22. See Italy 10 March 2000 Supreme Court; case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/000310i3.html>.
23. See Ziegel, supra n. 11.
24. See Fritz Enderlein and Dietrich Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, Oceana Publication (1992), p. 129. Also available online at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html>.
25. See John O. Honnold, "Uniform Law and Uniform Trade Terms -- Two Approaches to a Common Goal": Horn & Schmitthoff eds, Transnational Law of International Commercial Transactions (Kluwer 1982), p. 170.
26. See Hellner, supra n. 2.
27. See Ulrich G. Schroeter, "Vienna Sales Convention: Applicability to 'Mixed Contracts' and Interaction with the 1968 Brussels Convention", 5 Vindobona Journal of International Commercial Law and Arbitration (2001), p. 81. Available online at <http:// cisgw3.law.pace.edu/cisg/biblio/schroeter1.html>. Schroeter, however, submits that contracting parties "only rarely seem to include a clause on the place of payment in their contract". (Ibid.)
28. See Secretariat Commentary on Art. 53 of the 1978 Draft [draft counterpart of CISG Art. 57]; Comment 1. Available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-57.html>.
29. CISG Art. 6 reads: "The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions." Under the PECL, the counterpart rule is Art. 1:102, which reads under the title "Freedom of Contract": "(1) Parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles. (2) The parties may exclude the application of any of the Principles or derogate from or vary their effects, except as otherwise provided by these Principles."
30. See Enderlein and Maskow, supra n. 24, at p. 216.
31. Supra n. 28, at fn. 1.
32. Supra n. 30.
33. The court held: "According to the payment procedure established between the parties during many years, the place of performance for the payment of the price is the [buyer]'s place of business. From the start of their business relations, it was the [seller] who bore the cost of the money transfer. Under the CISG, the issue of which party bears the cost of the money transfer is determined by the place of performance for the payment obligation (citations omitted). It follows vice versa that the place of performance is the [buyer]'s place of business if the parties established the practice that the [seller] was to bear the cost of the money transfer." (See Germany 24 November 1998 Landgericht [District Court] Bielefeld; case presentation including English translation available online at <http://cisgw3.law.pace.edu/cases/981124g1.html>.) Cf. Germany 7. December 2000 District Court Trier, where similarly the court, taking into account the parties' ordinary course of business, holds that the parties implicitly agreed on a specific manner of payment, which consists in the seller direct debiting of buyer's bank account in the Netherlands. By this agreement the court held that the parties have established a practice between them under which the place of payment was at the buyer's bank in the Netherlands. (See the UNILEX abstract at <http://www.unilex.info/case.cfm?pid=1&do=case&id=800&step=Abstract>.)
34. Official Comment on PECL Art. 7:101, Comment H, supra note 1.
CISG Art. 9 reads: "(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. (2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned." PECL Art. 1:105 reads: "(1) The parties are bound by any usage to which they have agreed and by any practice they have established between themselves. (2) The parties are bound by a usage which would be considered generally applicable by persons in the same situation as the parties, except where the application of such usage would be unreasonable."
35. See Italy 7. August 1998 Supreme Court; case presentation including English translation available online at <http://cisgw3.law.pace.edu/cases/980807i3.html>.
36. See Digest 13 on CISG Art. 31 in "The UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods" (June 2004). Available online at <http://cisgw3.law.pace.edu/cisg/text/anno-art-31.html>.
37. Supra n. 35.
38. See Germany 16 July 2001 Provincial Court of Appeal Köln; case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/010716g1.html>.
39. See Germany 13 April 2000 Amtsgericht [Lower Court] Duisburg; case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>.
40. See Denmark 15 February 2001 Hjesteret [Supreme Court] (Damstahl A/S v. A.T.I. S.r.l), case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/010215d1.html>.
41. See Honnold, supra n. 25, at p. 171.
42. Supra n. 1, Note 1. It is also noted that: "In some of the laws the debtor's residence or place of business is the place of performance of a money obligation, see SPANISH CC art. 1171(3); FRENCH, BELGIAN and LUXEMBOURG Civil Codes art. 1247(3), except that if the price for goods is payable on delivery it is payable at the place of delivery, arts. 1609 and 1651. The debtor who sends money to the creditor bears the risk of loss or delay, see for Belgian law Cass. 6 Jan. 1972, Arr. Cass., 441; Cass. 23 Sept. 1982, Pas. I, 118; similarly Luxembourg District Court 31 Jan. 1874, 1, 128." (Ibid.)
43. See Benjamin's Sale of Goods, Guest ed. (1975); p. 705.
44 Supra n. 1, Comment C.
45. See Enderlein and Maskow, supra n. 24, at pp. 214-215.
46. See Ziegel, supra. n. 11.
47. Supra n. 28, Comment 2. It is also noted, on the other hand, that "[t]his Convention does not govern the extent to which exchange control regulations or other rules of economic public order may modify the obligations of the buyer to pay the seller at a particular time or place or by a particular means. The buyer's obligations to take the steps which are necessary to enable the price to be paid are set forth in article 50 [draft counterpart of CISG article 54]. The extent to which the buyer may be relieved of liability for damages for his failure to pay as agreed because of exchange control regulations or the like is governed by article 65 [draft counterpart of CISG article 79] [For the extent to which the seller may be relieved of the duty to deliver the goods if the buyer does not pay as agreed, see articles 54(1), 60, 62, 63 and 64 [draft counterpart of CISG articles 58(1), 64, 71, 72 and 73].]." (Supra n. 28, Comment 3.)
48. Supra n. 30.
49. Supra n. 28, Comment 5.
50. See Austria 10 November 1994 Supreme Court, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>.
51. See Germany 4 December 1996 Bundesgerichtshof [Federal Supreme Court], case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>.
52. See Enderlein and Maskow, supra. n. 24, at p. 218.
53. Schlechtriem wants to interpret the documents referred to in Art. 58 in the meaning of Arts. 30 and 34 because the right of the seller to refuse performance is at stake; see Schlechtriem, supra n. 3.) In the opinion of Enderlein and Maskow, Arts. 30 and 34, however, refer to documents which relate to the goods. An extended version of the term "documents" is used there which may include certificates relating to quality and analysis, operating manuals, technical descriptions and drawings. Enderlein and Maskow are also in favor of a functional interpretation and not of a limitation of the relevant documents to mere documents of title without wanting to consider the two groups of documents as identical. Reference is made here in the first place to shipping documents, like bills of lading, warehouse certificates, combined transport documents, international forwarding notes, etc., i.e. the so-called documents of title. Depending on the basis for delivery agreed, the documents can also be such which only certify the taking over of the goods (quay receipt, mate's receipt, forwarding agent's receipt) and/or such which prove the conclusion of a freight or storage contract which serve to substantiate an obligation to deliver (sender copies of the waybill in transportation by way of railroad, motor traffic, airship and inland navigation). The requirements for those documents are determined according to the rules applicable to the respective category of performance. The category of transportation documents which will have to be presented can usually be inferred from the INCOTERMS referred to. Where the buyer has to pay customs duties to obtain the goods, the seller has to provide the necessary documents, such as invoices (if agreed having account of specific form requirements -- consular invoices) and certificates of origin. Depending on what is agreed in the contract other documents are added, like insurance documents, certificates of quality, etc. The Uniform Customs and Practices for Documentary Credits contain the requirements which most of these documents will have to meet. (See Enderlein and Maskow, supra n. 24, at pp. 219-220.)
54. See Enderlein and Maskow, supra n. 24, at p. 220. According to the authors, the places determined according to the handing over of the documents are different in the case of specific terms of payment. In the event of the term "cash against documents", the documents have to be submitted as a rule at the buyer's (Article 8, Uniform Rules for Collections). However, the buyer has to be considered as obligated to satisfy all formalities which are necessary to allow transfer of the payment to the seller's country. But he is obliged only insofar as that one depends on him and, in particular, only to the extent to which he is legally entitled and actually in a position to do so. Where a letter of credit is agreed, all banks engaged act on behalf of the buyer, hence the issuing bank and also other banks engaged by it, including the bank in the seller's country which notifies the seller of the opening of the letter of credit, its place of business is also the place of payment, which again entails the consequences described under note 1.2. This is also in line with the Uniform Customs and Practices for Documentary Credits according to which the bank sending the notification is under certain circumstances entitled to make the payment pursuant to the conditions prescribed (Article 2, (ii); Article 11, subpara. (d). Where a payment made under a reservation is reclaimed later, because the bank where the letter of credit is issued does not pay, the payment is considered as not having been made. (See Enderlein and Maskow, supra n. 24, at pp. 220-221.)
55 Supra n. 4, Digest 3.
56. Supra n. 35.
57. See Italy 14 December 1999 Supreme Court, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/991214i3.html>.
58. See Belgium 15 May 2002 Hof van Beroep [Appellate Court] Gent, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>.
59. See Germany 19 January 2001 District Court Flensburg, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/010119g1.html>.
60. See Austria 22 October 2001 Supreme Court, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/011022a3.html>.
61. See Germany 20 September 2002 District Court Göttingen, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/020920g1.html>.
62. See Germany 10 December 2003 Appellate Court Karlsruhe, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/031210g1.html>.
63. See Enderlein and Maskow, supra. n. 24, at p. 215.
64. See Germany 17. December 2002 District Court Giessen, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/021217g1.html>.
65. Supra n. 62.
66 See Peter Schlechtriem, "Commentary on Oberlandesgericht Düsseldorf 2 July 1993": International Contract Manual: Guide to UN Convention, Suppl. 9 (Kluwer: April 1994), case presentation also available online at <http://cisgw3.law.pace.edu/cases/930702g1.html>.
67. See Germany 2 July 1993 Provincial Court of Appeal Düsseldorf, case presentation available online at <http://cisgw3.law.pace.edu/cases/930702g1.html>.
68. In this respect, see Digests 6 to 8; supra n. 4.
69. See Germany 28 October 1999 Provincial Court of Appeal Braunschweig, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/991028g1.html>.
70. See Leif Sevn, "Obligations of the Buyer under the UN Convention on Contracts for the International Sale of Goods": Petar Sarcevic & Paul Voken eds. International Sale of Goods: Dubrovnik Lectures, Oceana (1986), p. 213, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/sevon1.html>; see also Leif Sevn in "Obligations of the Buyer under the Vienna Convention on the International Sale of Goods": Suomalainen Lakimiesten Yhdistys: - Tidskrift utgiven av Juridiska Föreningen i Finland [Finnish Law Society] 126 (1990), p. 333, also available online at <http://cisgw3.law.pace.edu/cisg/text/sevon57.html>.
71. See Ziegel, supra n. 11.
72. Supra n. 28, Comment 6.
73. Supra n. 4, Digest 9.
74. Supra n. 1, Comment I.
75. This Article reads: "A party must bear any increase in the expenses incidental to performance which is caused by a change in its place of business subsequent to the conclusions of the contract." According to its Comment (specifically Comment 3), "[i]n view of the importance of the parties' respective places of business for the application of para. (1), it is necessary to cater for the situation where a party changes its location after the conclusion of the contract, a move which may involve additional expense for the performing party. The rule established in para. (2) is that each party must bear any such increase of expenses occasioned by a change in its place of business." "It is moreover possible that a party's move may entail other inconvenience for the other party. The obligation to act in good faith (Art. 1.7) and the duty to cooperate (Art. 5.3) will often impose on the moving party an obligation to inform the other party in due time so as to enable the latter to make such arrangements as may be necessary."
76. Supra n. 1, Note 2.
77 Supra n. 1, Comment D.
78. See Russia 24 January 2002 Arbitration proceeding 27/2001, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/020124r1.html>.
79. Supra n. 36, Digest 1.
80. Supra n. 38.
81. See Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zrich, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/990210s1.html>.
82. See Enderlein and Maskow, supra n. 24, at pp. 131-132.
83. See Hellner, supra. n. 2, at p. 345.
84. See Hellner, supra. n. 2, at p. 346.
85. Supra. n. 82.
86. See Ziegel, supra. n. 11.
87. Supra n. 36, Digest 8.
88. See Secretariat Commentary on Art. 29 of the 1978 Draft [draft counterpart of CISG Art. 31]; Comment 14. Available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-31.html>.
89. See Germany 19 December 2002 Appellate Court Karlsruhe, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/021219g1.html>.
90. Supra n. 88, Comment 15.
91. See Hellner, supra n. 2.
92. Supra n. 88; Comment 16.
93. See Germany 23 June 1998 Provincial Court of Appeal Hamm, case presentation including English translation is available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>.
94. Supra n. 36, Digest 9.
95. Supra n. 88, Comment 17.