[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).]
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:
(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. 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.
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.
X. Identification Required
276. Like Article 67, Article 69 presupposes identification of the goods. 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.