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CISG number

Art. 66

523. The text of article 64, as adopted by the Working Group on the International Sale of Goods, is as follows:

General rule on passage of risk

524. The view was expressed that the first part of article 64, which stated, a general rule on the passage of risk, should be deleted as it merely stated the self-evident proposition that once the risk had passed to the buyer he must bear the risk of loss or damage to the goods.

525. However, there was considerable support for the retention of the first part of article 64 as it, together with articles 65 to 67, provided a uniform rule for the passage of risk. It was noted that this was important since the rules on risk of loss varied in different legal systems.

526. The Committee decided to retain the general rule on the passage of risk.

Exception to the general rule on passage of risk

527. It was proposed that the second part of the article should be deleted as it was too much of a simplification to be helpful and could be misinterpreted to mean that the buyer did not have to pay the price if there was a fault or defect in the goods.

528. In opposition to this proposal, it was argued that the exception stated in the second part of article 64 was of great importance since, even though the risk had passed, the seller could still interfere with the goods in such a manner as to cause loss. The second part of the article made it clear that the buyer [page 62] would not have to pay the price to the extent that loss or damage to the goods had been caused by such an act of the seller.

529. The proposal to delete the second part of article 64 was withdrawn.

530. The Committee decided that the text should make it clear that an omission to perform an act which resulted in loss or damage had the same consequences as the Commission of an act which resulted in loss or damage.

531. The Committee also considered a proposal that the exception to the general rule should operate only if the act or omission on the part of the seller amounted to a breach of contract. In opposition to this proposal it was pointed out that the seller might act in a manner which was not a breach of contract but might still cause damage, e.g. if in an f.o.b. contract the seller removed his containers after the goods had been unloaded and, in so doing, damaged the goods.

532. The Committee did not retain this proposal.

Decision

533. The Committee concludes that no change in substance is called for in respect of article 64. It therefore recommends that the Commission should adopt the following text:

"Article 64

"Loss or damage to the goods after the risk has passed to the buyer, does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller." [page 63]

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