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Article 68. Passage of Risk - Goods Sold during Transit

TEXT OF ARTICLE 68

The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

68A Goods sold during transit: General rule on passage of risk

68A1 Risk passes on conclusion of contract

68B Circumstances indicating agreement on risk transfer as of shipment

68B1 Usage (art. 9)

68B2 Transfer to buyer of documents - e.g., insurance policy

68C Seller did not disclose knowledge that goods had been lost or damaged:

68C1 Risk remains on seller

68D Other problems


DESCRIPTORS

Passage of risk ; In transit sale of goods


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. For Art. 68, the UNCITRAL Digest cites three cases: two from Germany, one from Austria.

Presented below is a composite list of Art. 68 cases reporting these UNCITRAL Digest cases and other Art. 68 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 23 June 1998 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.

Russia 3 June 2003 Arbitration Court [Appellate Court] for the Northwestern Region 68A ; 68B [translation available]
 

* Germany 23 June 1998 Oberlandesgericht [Appellate Court] Hamm [translation available]
 

* Austria 10 December 1997 Vienna Arbitration award S 2/97 [translation available]

Germany 10 June 1997 Landgericht [District Court] Paderborn

China 1 April 1997 CIETAC Arbitration Award [CISG/1997/02] (Fishmeal case) 68A1 [translation available]
 

* Germany 12 October 1995 Landgericht [District Court] Trier [translation available]

China 10 March 1995 CIETAC Arbitration Award [CISG/1995/03] (Polyethylene film case) [translation available]


UNCITRAL CASE DIGEST

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/68 [8 June 2004]. Reproduced with the permission of UNCITRAL.

ARTICLE 68

The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.

DIGEST OF ARTICLE 68 CASE LAW

1. Article 68 provides rules for the passing of risk when goods are sold in transit. The general rule is that the risk passes from the time the contract of sale is concluded. If, however, the circumstances so indicate, the risk is deemed to pass when the goods are handed over to the carrier. Only if the seller knew or ought to have known that the goods were lost or damaged at the time the contract is concluded and did not inform the buyer will the risk remain with the seller. Although article 68 has been cited in reported decisions, these decisions do not interpret its contents.[1]


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm 23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>] (affirming lower court without reference to art. 68); [AUSTRIA Vienna Arbitration Award, case No. S 2/97 of 10 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971210a3.html>] (citing art. 68); CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (citing art. 68).


Pace Law School Institute of International Commercial Law - Last updated September 1, 2006
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