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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 69

VII.   Passage of Risk in Other (Non-Carrier) Cases
VIII.  Buyer to Take Goods at Seller’s Place of Business (Ex Works)
IX.    Buyer to Take Goods at Another Place
X.     Identification Required

VII. Passage of Risk in Other (Non-Carrier) Cases

273. Articles 67 and 68 both provide gap-filling rules in cases involving carriage of the goods. Article 69 provides the residual gap-filling rules, i.e., for cases not covered by Articles 67 and 68. Article 69 provides as follows:

'(1) In cases not within articles 67 and 68, the risk passes to the buyer when he takes over the goods or, if he does not do so in due time, from the time when the goods are placed at his disposal and he commits a breach of contract by failing to take delivery.

(2) However, if the buyer is bound to take over the goods at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place.

(3) If the contract relates to goods not then identified, the goods are considered not to be placed at the disposal of the buyer until they are clearly identified to the contract.'

VIII. Buyer to Take Goods at Seller's Place of Business (Ex Works)

274. Because most international sales contracts involve carriage of the goods, the field of application of Article 69 will be limited in practice.

Article 69(1) provides the rule for cases not involving carriage, provided the buyer is not bound to take over the goods at a place other than seller's place of business. Thus, where the buyer is obligated to take over the goods at seller's place, the risk generally passes when the buyer actually takes over the goods; if the buyer [page 145] does not take over (available) goods on time, the risk passes at that point in time when the buyer commits this breach.[1] If the contract permits the buyer to collect the goods within a given period, the risk will not pass until the period has expired, even if the goods were held available during that period.[2]

1. Regarding Article 60(b), see supra No. 249.
2. Accord: A/CONF./97/5, paras. 3-4 of Secretariat's Commentary to Article 81 of the 1978 Draft Convention (noting that the seller is in the best position to protect the goods, etc.) and Honnold, J., op. cit. at p. 414. In Scandinavian domestic sales law, a different default risk rule, more like the one in Article 69(2), infra No. 275, applies.

IX. Buyer to Take Goods at Another Place

275. If the buyer is bound to take over the goods at a place other than seller's place of business, e.g. at a warehouse, the risk passes under Article 69(2) when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. Therefore, if the contract permits the buyer to collect the goods within a given period, and the goods are available, the risk will pass before the period has expired; in this case, the seller is in no better position to protect against the loss.[1]

1. See A/CONF./97/5, paras. 5-6 of Secretariat's Commentary to Article 81 of the 1978 Draft Convention and compare supra, preceding note.

X. Identification Required

276. Like Article 67, Article 69 presupposes identification of the goods.[1] If the contract relates to goods not then identified, the goods are first considered to be placed at the disposal of the buyer when such identification takes place: by marking, notice, etc.[2]

1. See supra No. 271.
2. See Article 69(3) and Compare Article 67(2). The identification must, of course, accord with seller's rights and obligations under the contract. [page 146]

Pace Law School Institute of International Commercial Law - Last updated April 5, 2005
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