Go to Database Directory || Go to Bibliography || Go to Entire Lookofsky Text
Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 31
Place of Delivery

1. Gap-Filling Rules
2. INCOTERMS
3. Contracts of Carriage: Delivery to First Carrier
4. Cases Not Involving Carriage

1. Gap-Filling Rules

151. Article 31 sets forth the default rules which define the place of delivery in a contract governed by the CISG, i.e. the gap-filling rules which apply absent an express contractual provision or international usage to the contrary.[1]

1. Regarding Article 6, see supra No. 70 et seq.; regarding Article 9, see supra No. 87 et seq.

2. INCOTERMS

152. In as much as the precise demarcation of the place of delivery is a key function of the Incoterms regime, the CISG default rules in Section I of Chapter II should also be read in light of such Incoterms as may apply by virtue of the parties' agreement or by virtue of custom. In many cases the Incoterms will be made applicable by virtue of an express contractual provision, e.g. a term which incorporates the relevant Incoterm place-of-delivery term by reference.[1] Another possibility is that the Incoterms may become operational by virtue of the parties practices between themselves or (less likely) by virtue of a wider international trade usage.[2]

1. For example, a contract term expressly providing that the seller is to deliver the goods: 'C.I.F. (INCOTERMS).' Re. the ICC Incoterms 2000, see the Report of the United Nations Secretary General: A/CN.9/479 of 10 April 2000. See also infra No. 267.
2. Re the parties' practices see supra No. 88. Regarding the rather strict requirements of CISG Article 9(2), see supra No. 89 et seq.
[page 85]

3. Contracts of Carriage: Delivery to First Carrier

153. The general CISG place-of-performance rule is set forth in Article 31, paragraph (a):

'If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:
a) if the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer ...'

154. In virtually all cases where the CISG applies, the buyer and seller will have their places of business in different States.[1] And in the great majority of these cases, the parties' contract will contemplate the 'carriage' of the goods (from one state to another) via a 'carrier', i.e. an independent third party not under seller's or buyer's direct control.[2] In these numerous and typical cases, Article 31(a) provides that the seller fulfils his delivery obligation by handing over the goods to the first such carrier.

1. Regarding Article 1, see supra No. 52 et seq.
2. Indeed, even if the contract does not expressly refer to the use of a carrier, the distance which separates the parties and/or their practices may carry the necessary implication. Accord Honnold, J., Uniform Law (1999) at 239.

4. Cases Not Involving Carriage

155. Paragraphs (b) and (c) of Article 31 are designed to provide default rules for those less common cases where an international sales contract does not contemplate carriage by an independent carrier. In these cases, the obligation to delivery consists:

'b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at a particular place - in placing the goods at the buyer's disposal at that place;

c) in other cases - in placing 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.'

156. Where paragraph (a) does not apply, and the goods are specific goods in a specific place, such as a particular painting currently on exhibit in a given art gallery, the default rule in paragraph (b) requires the seller to place the goods at the buyer's disposal at that specific place. The same delivery rule expressly applies to 'unidentified goods to be drawn from a specific stock or to be manufactured or produced ...' [page 86]

In other (paragraph c) cases, i.e., those contemplating neither carriage nor specific goods in a specific place, etc., the seller's obligation is to place the goods at the buyer's disposal at the seller's place of business. [page 87]


Pace Law School Institute of International Commercial Law - Last updated April 1, 2005
Go to Database Directory || Go to Bibliography
Comments/Contributions