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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 57 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Introduction
Choice of place of payment by the parties
Payment of the price against the handing over of the goods or
    of documents where the handing over takes place (Article 57(1)(b))
Payment of the price at the seller's place of business (Article 57(1)(a))
Change in the seller's place of business (Article 57(2))
Place of payment of the price and jurisdictional competence]

Article 57

(1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller:
(a) At the seller's place of business; or
(b) If the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place.

(2) The seller must bear any increase in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract.

INTRODUCTION

1. Article 57(1) defines the place where payment is to be made, setting out three rules. First, the parties may have contractually specified the place of payment, in which case the buyer must pay the price at that place ("If the buyer is not bound to pay the price at any other particular place," article 57(1)). Secondly, in the absence of an express or implicit choice, the buyer must pay the price at the place where the handing over of the goods or documents takes place against payment (article 57(1) (b)). Thirdly, where the parties have not agreed on a place for payment and payment does not have to be made against handover of the goods or documents, the buyer must pay the price at the seller's place of business (article 57(1) (a)). By thus determining the place of payment, article 57(1) indirectly settles the question of who bears the risks of loss of the funds allocated for payment and the risks of delay in remittance of the funds.

2. After the conclusion of the contract, the seller might change its place of business, which under article 57(1) (a)may be the place for payment. In that case, article 57(2) provides that any increase in the expenses incidental to payment that is caused by the change is to be borne by the seller.

3. Article 57 is often referred to in case law. In addition to its direct effects, article 57 plays an indirect role, which manifests itself particularly in connection with the currency of payment[1] or with regard to determining the court having international jurisdiction.[2]

Choice of Place of Payment by the Parties

4. As is stated in the Secretariat Commentary, "the contract will usually contain specific provisions on the (…) place of payment".[3] The choice of place may be express or implicit.[4] The use of payment clauses often determines implicitly the place of payment. This applies to a "cash against delivery" clause, under which payment has to be made at the place of handover.[5] The indication of a bank account on an invoice from the seller is open to various interpretations. One court held that the mere indication of a bank account on an invoice may be construed not as an offer to agree on a new place of payment but, on the contrary, as a simple authorization to pay the funds to that account.[6] The place of payment may also be inferred from practices established between the parties (article 9(1))[7] or from commercial usages (article 9(2)).

Payment of the Price Against the handing over of the Goods or of Documents where the Handing over Takes Place (Article 57(1)(b))

5. In cases where payment has to be made against the handing over of the goods or documents, article 57(1) (b)requires the buyer to pay the price at the place of such handing over. Article 57(1) (b) accordingly relates to the rule set forth in article 58(1).[8] It follows from this latter provision that handing over the goods simultaneously with payment of the price is the general rule, which will apply in the absence of any other agreement of the parties (article 58(1), first sentence). In other words, for article 57(1) (b) to be applicable there has to be simultaneous performance of the buyer's obligation to pay the price and of the seller's obligation to place the goods or documents at the buyer's disposal. This means that article 57(1) (b)is inapplicable if one party is obliged to render performance before the other party is required to do so. That was the case in connection with a sale of an industrial plant where 30 percent of the sale price was payable at the time of the order, 30 percent at the beginning of assembly, 30 percent on completion of assembly and 10 percent on start-up.[9] The inapplicability of article 57(1) (b) also occurs, as was noted by one court, where the price is payable 30 days following presentation of the bill of lading.[10]

6. Article 57(1)(b) treats handover of documents in the same way as handover of goods. The provision does not include a definition of documents. Insofar as article 57(1) (b)reflects (in connection with the place of payment) the rule set forth in article 58(1) regarding the time of payment, the term "documents" used in article 57(1) (b) has the same meaning as under article 58(1).[11]

7. Where the contract involves carriage of the goods, the seller will generally perform the obligation to deliver before the buyer pays the price. In fact, the obligation to deliver consists, in a case of carriage, in "handing the goods over to the first carrier for transmission to the buyer" (article 31 (a)), whereas the buyer is not required to pay the price until the time when the seller places either the goods or documents controlling their disposition at the buyer's disposal (article 58(1)). However, under article 58(2), the seller may make the dispatch of the goods subject to the condition that the goods or documents controlling their disposition will not be handed over to the buyer except against payment of the price. In that case, handing over the goods and payment of the price will be simultaneous, thus giving rise to application of article 57(1) (b).

Payment of the Price at the Seller's Place of Business (Article 57(1)(a))

8. Article 57(1) (a)applies on a subsidiary level. Where a place of payment has not been agreed on by the parties or payment does not have to be effected against handover of the goods, the buyer must pay the seller at the seller's place of business.[12] Article 57(1) (a) therefore applies only if one party is required to perform its obligations before the other, in which case the price is payable at the seller's place of business, unless otherwise agreed by the parties. Article 57(1) (a) is thus applicable, as shown by various decisions, if the seller has to perform all or part of its obligations before the buyer is required to pay the price.[13]

Change in the Seller's Place of Business (Article 57(2))

9. By providing that the seller must bear any increase in the buyer's expenses incidental to payment that is caused by a change in the seller's place of business subsequent to the conclusion of the contract, article 57(2) implicitly imposes on the buyer the obligation to pay the price at the seller's new address. The seller must accordingly inform the buyer of the change in a timely manner. Pursuant to the principle set forth in article 80 of the Convention, the seller would be unable to rely on any delay in payment of the price that is caused by late notification of its change of address.

10. A seller often assigns the right to receive payment of the sale price, in particular for refinancing purposes. If the place of payment is that of the seller's business premises (article 57(1) (a)), the question arises whether the buyer has to pay the price at the place of business of the assignor or that of the assignee. According to one decision, assignment of the right to receive the sale price results in the transfer of the place of payment from the business premises of the assignor to those of the assignee.[14] That decision may be cited to support the view that article 57(2) embodies a general principle, within the meaning of article 7(2), which is applicable in the specific case of the assignment of debts. According to a different interpretation, not yet endorsed by case law, the effects of debt assignment on the place of payment of the price are governed by the law applicable according to choice-of-law rules.

Place of Payment of the Price and Jurisdictional Competence

11. Article 57(1) can play a role in the determination of jurisdiction when the plaintiff is entitled to bring a case relating to a contractual matter before the court for the place of performance of the obligation forming the basis of the legal proceedings, by virtue of national laws[15] or international instruments. Article 57(1) has accordingly been applied in numerous court decisions in connection with both the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, of 27 September 1968, which is binding for the States of the European Union, and the Lugano Convention of 16 September 1988, which binds the States of the European Union together with those of the European Free Trade Association. These two instruments have since been replaced by Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and by the Lugano Convention of 30 October 2007. Council Regulation No. 44/2001 of 22 December 2000 applies whenever the defendant, whatever its nationality, is domiciled (article 2) or has its statutory seat, its central administration, or its principal place of business (article 60) in a State that is a member of the Union. A similar rule exists in the 1968 Brussels Convention (articles 2 and 53) and in the Lugano Conventions of 1988 (articles 2 and 53) and 2007 (articles 2 and 60). In relation to the two new instruments, i.e. the Regulation of 22 December 2000 and the 2007 Lugano Convention, article 57 CISG plays only a secondary role.[16]

12. Article 5.1 (b) of the 1968 Brussels Convention permits the plaintiff to sue the defendant, "in matters relating to a contract, in the courts for the place of performance of the obligation in question". This same provision appears in the Lugano Convention of 16 September 1988 (article 5.1 (b)). The result of the combined application of article 5.1 (b) of the Brussels and Lugano Conventions and of CISG article 57 is that, in the case of an international sale governed by the Vienna Convention, a seller can take legal action to seek payment of the price from a defaulting buyer by suing that buyer before the court of the place of payment of the price instead of before the court of the buyer's place of domicile (article 2 of the Brussels and Lugano Conventions). Any justifiable doubts as to the applicability of CISG article 57 in connection with the implementation of article 5.1 of the Brussels Convention were removed by the Court of Justice of the European Community. The latter in fact stated that the place of performance of the obligation to pay the price "must be determined pursuant to the substantive law applicable to the obligation in issue under the conflict rules of the court seized, even if those rules refer to the application to the contract of provisions such as those of the Uniform Law on the International Sale of Goods [ULIS], annexed to the Hague Convention of 1 July 1964".[17] What was held in regard to ULIS is, for the same reasons, also valid in respect of the Vienna Convention, which replaces ULIS. Decisions applying CISG article 57 in connection with the implementation of article 5.1 of the Brussels[18] and Lugano[19] Conventions have been numerous.

13. On 1 March 2002, in the countries of the European Union, Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters[20] entered into force, replacing the Brussels Convention.[21] For those European States, article 57 of the United Nations Convention on Contracts for the International Sale of Goods ceases to play the role that it previously played in the determination of jurisdictional competence. The provisions on special jurisdiction in contractual matters are in fact revised by the new text. Although the principle rule whereby "[a] person domiciled in a Member State may, in another Member State, be sued: … in matters relating to a contract, in the courts for the place of performance of the obligation in question" (article 5.1 (a)) is retained, the Regulation specifies the place of performance for two types of contracts — namely contracts for the sale of goods and contracts for the provision of services — unless otherwise agreed between the parties (article 5.1 (b)). For sales of goods, the place in question is "the place in a Member State where, under the contract, the goods were delivered or should have been delivered". The Regulation accordingly establishes the place of delivery of the goods as a linking factor applicable to all claims relating to a contract for the sale of goods and not merely to claims founded on the obligation to deliver.[22] This rule makes it possible to group together actions relating to a sales contract before the court of the place of delivery, whatever the obligations at issue might be. Thus, a claim for payment of the price must, by virtue of the special jurisdiction provision in article 5.1 (b), be filed with the court for the place of delivery of the goods.[23] Both "sale of goods"[24] and "place of delivery of the goods"[25] are autonomous concepts that have to be defined according to the origin, objectives and scheme of the Regulation.[26] The Lugano Convention of 30 October 2007 was aligned with Regulation No. 44/2001 in this and other areas. Article 5.1 of the new Lugano Convention is thus in all respects comparable to article 5.1 of Regulation No. 44/2001. Whether in connection with Regulation No. 44/2001 or the new Lugano Convention, CISG article 57 continues to play its traditional role when the place of delivery is not in a member State. In that case, the basic rule (article 5.1 (a)) is applicable and CISG article 57 retains all its importance if the seller sues the buyer for payment of the price in regard to a contract of sale governed by the Vienna Convention. Similarly, the parties are at liberty to derogate from article 5.1 (b) of the Council Regulation, in which case CISG article 57 will resume its traditional role in the determination of the court having jurisdiction to hear the action for non-payment of the price.[27]

14. The question arises whether article 57(1) is also applicable to determine the place for payment of monetary obligations other than the price. Various courts have been faced with this difficulty in connection with claims for damages and claims for restitution of all or part of the price or payment of a bonus promised by the seller.

15. Several decisions have ruled on the place of performance of the obligation to pay damages, following breach of contract, in order to determine the court having jurisdiction. Decision-makers accordingly avoid resorting to national laws and apply the rules of the Vienna Convention. Two interpretations have been adopted in case law. Some decisions have, in regard to damage claims, opted for the creditor's place of business, as a general principle inferred from the rule whereby the price is normally payable at the place of business of the seller (article 57(1) (a)), the party entitled to receive the sale price.[28] Other decisions have held that the place of performance for damages claims should be the place of performance of the breached contractual obligation.[29] This second line of judicial reasoning can be linked to the approach adopted by the Court of Justice of the European Community, which, in connection with article 5.1 of the Brussels Convention, locates the place of performance in respect of a claim for damages at the place for performance of the obligation whose breach was alleged by the party seeking damages.[30]

16. Comparable difficulties arise with regard to determining the place of performance of the obligation to refund the price following avoidance of the contract for breach of contract or following termination of the contract by agreement of the contracting parties, or the place of reimbursement of an overpayment to the buyer. These difficulties have also arisen in connection with the implementation of the Brussels Convention. Some decisions refer to the national law governing the contract.[31] Other decisions rely on the Convention to determine the place of performance by virtue of a general principle of the Convention, according to which the price has to be refunded at the creditor's place of business.[32]

17. It has also been held, in connection with the promise of a bonus made by a mail-order company to a buyer of goods, that the place of performance of that promise was the place of business of the creditor — i.e., in this case, the buyer, by analogous application of CISG article 57(1) (a). [33]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

1. See the Digest for article 54.

2. See paragraphs 11 et seq. infra.

3. Secretariat Commentary to draft article 53, paragraph 1.

4. [GERMANY Landgericht Trier 7 December 2000] (under a long-standing business relationship, the seller regularly debited the price directly to an account of the buyer, which could be regarded as an implicit choice of the manner of payment).

5. [GERMANY Landgericht Nürnberg-Fürth 27 February 2003].

6. CLOUT case No. 221 [SWITZERLAND Zivilgericht des Kantons Basel-Stadt 3 December 1997]; cf. CLOUT case No. 890 [SWITZERLAND Tribunale d'appello di Lugano 29 October 2003].

7. CLOUT case No. 363 [GERMANY Landgericht Bielefeld 24 November 1998] (practice established over many years whereby the seller bore the payment costs to the benefit of the distributor (buyer)); CLOUT case No. 221 [SWITZERLAND Zivilgericht des Kantons Basel-Stadt 3 December 1997] (the procedure followed under two previous contracts was not sufficient to constitute a practice).

8. CLOUT case No. 194 [SWITZERLAND Tribunal fédéral 18 January 1996] (in connection with determining the court having jurisdiction pursuant to the Lugano Convention of 16 September 1988 — article 5.1).

9. CLOUT case No. 194 [SWITZERLAND Tribunal fédéral 18 January 1996] (the court found that the price was payable at the seller's place of business, in accordance with article 57(1)(a)).

10. CLOUT case No. 221 [SWITZERLAND Zivilgericht des Kantons Basel-Stadt 3 December 1997].

11. See the Digest for article 58.

12. CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001].

13. [GERMANY Landgericht Krefeld 20 September 2006] (in connection with a contract involving sea carriage, in which the price was payable 60 days after arrival in Germany or 85 days after loading); [GERMANY Landgericht Freiburg 26 April 2002] (in connection with a payment which, in accordance with the invoice, was to be made 14 days after dispatch of the goods); CLOUT case No. 194 [SWITZERLAND Tribunal fédéral 18 January 1996] (on this decision, see footnotes 8 et seq. supra). These three decisions were rendered in regard to determining the court having international jurisdiction (see paragraphs 11 et seq. infra).

14. CLOUT case No. 274 [GERMANY Oberlandesgericht Celle 11 November 1998].

15. See, in connection with the application of section 29(1) of the German Code of Civil Procedure (Zivilprozessordnung), [GERMANY Oberlandesgericht Saarbrücken 12 May 2010]; CLOUT case No. 49 [GERMANY Oberlandesgericht Düsseldorf 2 July 1993] (from CISG article 57(1)(a) it is possible to infer a general principle under which the place of settlement of a monetary claim is the creditor's place of business); [GERMANY Landgericht Krefeld 19 December 1995]; [GERMANY Landgericht Nürnberg-Fürth 26 July 1994] (the debtor's obligation to pay the price has to be performed at the creditor's place of business).

16. See paragraph 13 infra.

17. CLOUT case No. 298 [EUROPEAN COURT OF JUSTICE European Community, 29 June 1994 (case C-288/92) (Custom Made Commercial v. Stawa Metallbau)].

18. See, in particular, CLOUT case No. 843 [FINLAND Korkein oikeus 14 October 2005]; [AUSTRIA Oberlandesgericht Wien 1 June 2004]; [AUSTRIA Oberster Gerichtshof 29 March 2004]; [GERMANY Bundesgerichtshof 25 February 2004]; [DENMARK Retten i Randers 12 September 2003]; [BELGIUM Cour d'appel de Liège 28 April 2003]; CLOUT case No. 772 [GERMANY Bundesgerichtshof 30 April 2003]; [BELGIUM Rechtbank van Koophandel Veurne 19 March 2003 (CVBA L. v. E.G. BV)]; [AUSTRIA Oberster Gerichtshof 18 December 2002]; [GERMANY Bundesgerichtshof 2 October 2002]; [GERMANY Landgericht Göttingen 20 September 2002]; CLOUT case No. 1017 [BELGIUM Hof van Beroep Gent 15 May 2002]; [BELGIUM Hof van Beroep Gent 31 January 2002]; [FRANCE Cour de cassation, 1ère chambre civile, 26 June 2001]; [GERMANY Landgericht Flensburg 19 January 2001]; CLOUT case No. 379 [ITALY Corte di Cassazione, Sezioni Unite 14 December 1999]; CLOUT case No. 343 [GERMANY Landgericht Darmstadt 9 May 2000] (see full text of the decision); [GERMANY Landgericht Trier 7 December 2000]; [BELGIUM Tribunal de commerce de Charleroi 20 October 2000]; [GERMANY Landgericht Memmingen 13 September 2000]; [GERMANY Oberlandesgericht Stuttgart 28 February 2000]; CLOUT case No. 361 [GERMANY Oberlandesgericht Braunschweig 28 October 1999]; CLOUT case No. 377 [GERMANY Landgericht Flensburg 24 March 1999]; CLOUT case No. 725 [ITALY Corte di Cassazione, Sezioni Unite, 1 February 1999]; CLOUT case No. 320 [SPAIN Audiencia Provincial de Barcelona 7 June 1999] (see full text of the decision); CLOUT case No. 274 [GERMANY Oberlandesgericht Celle 11 November 1998]; [BELGIUM Rechtbank 16 September 1998]; CLOUT case No. 223 [FRANCE Cour d'appel de Paris 15 October 1997] (see full text of the decision); CLOUT case No. 287 [GERMANY Oberlandesgericht München 9 July 1997]; CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997] (see full text of the decision); [NETHERLANDS Gerechtshof Amsterdam 20 November 1997]; CLOUT case No. 162 [DENMARK Østre Landsret 22 January 1996]; CLOUT case No. 205 [FRANCE Cour d'appel, Grenoble 23 October 1996]; [GERMANY Landgericht Siegen 5 December 1995]; [NETHERLANDS Gerechtshof 's-Hertogenbosch 9 October 1995]; CLOUT case No. 286 [GERMANY Oberlandesgericht München 22 September 1995]; [NETHERLANDS Gerechtshof 's-Hertogenbosch 20 October 1995]; [GERMANY Oberlandesgericht München 28 June 1995]; CLOUT case No. 153 [FRANCE Cour d'appel, Grenoble 29 March 1995] (see full text of the decision); [NETHERLANDS Rechtbank Middelburg 25 January 1995]; [GERMANY Oberlandesgericht Hamm 27 January 1995]; [NETHERLANDS Gerechtshof 's-Hertogenbosch 26 October 1994]; CLOUT case No. 156 [FRANCE Cour d'appel de Paris 10 November 1993] (see full text of the decision); CLOUT case No. 25 [FRANCE Cour d'appel, Grenoble 16 June 1993]; [DENMARK Sø-og Handelsretten 1 July 1992]

19. [SWITZERLAND Cour suprême du canton de Berne 19 May 2008]; [SWITZERLAND Handelsgericht Aargau 5 February 2008]; [SWITZERLAND Handelsgericht Aargau 19 June 2007]; [GERMANY Oberlandesgericht Düsseldorf 24 July 2007]; CLOUT case No. 906 [SWITZERLAND Kantonsgericht Nidwalden 23 May 2005]; [SWITZERLAND Handelsgericht St. Gallen 29 April 2004]; [AUSTRIA Oberster Gerichtshof 18 November 2003]; [SWITZERLAND Handelsgericht St. Gallen 11 February 2003]; CLOUT case No. 882 [SWITZERLAND Handelsgericht Aargau 5 November 2002]; [GERMANY Landgericht Freiburg 26 April 2002]; [ITALY Corte di Appello di Milano 23 January 2001]; CLOUT case No. 325 [SWITZERLAND Handelsgericht Zürich 8 April 1999]; CLOUT case No. 221 [SWITZERLAND Zivilgericht Basel-Stadt 3 December 1997]; CLOUT case No. 194 [SWITZERLAND Tribunal fédéral 18 January 1996].

20. Official Journal of the European Community L 12 of 16 January 2001, 1.

21. The Regulation applies to legal proceedings instituted after 1 March 2002 (article 66). Initially, the Regulation was not applicable to Denmark. It has been applicable to Denmark since 1 July 2007, the date of entry into force of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Official Journal of European Union L 299 of 16 November 2005, 62; see also Information on the date of entry into force of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Official Journal of the European Union L 94 of of 4 April 2007, 70).

22. Court of Justice of the Community, European Union, 3 May 2007 (case C-386/05), Report of Cases before the Court of Justice and the Court of First Instance, 2007, I-03699 (Color Drack) ("[In a case involving] several places of delivery within a single Member State …, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of its choice").

23. See [GERMANY Bundesgerichtshof 23 June 2010]; [GREECE Polymeles Protodikio Athinon 2009]; [AUSTRIA Oberster Gerichtshof 3 April 2008]; [GREECE Monomeles Proto dikio Thessalonikis 2008]; [GERMANY Oberlandesgericht Köln 21 December 2005; [GERMANY Oberlandesgericht Hamm 6 December 2005]; [AUSTRIA Oberster Gerichtshof 8 September 2005]; [ITALY Tribunale di Rovereto 28 August 2004]; [GERMANY Landgericht München 23 March 2004].

24. [EUROPEAN COURT OF JUSTICE 25 February 2010 (case C-381/08) (Car Trim GmbH v KeySafety Systems Srl.)] (in this judgment, the Court relied, inter alia, on CISG article 3(1) and article 6(2) of the Convention on the Limitation Period in the International Sale of Goods); Court of Justice of the European Community, European Union, 3 May 2007 (case C-386/05), Report of Cases before the Court of Justice and the Court of First Instance, 2007, I-3699 (Color Drack), paragraph 18.

25. [EUROPEAN COURT OF JUSTICE 25 February 2010 (case C-381/08) (Car Trim GmbH v KeySafety Systems Srl.)] (in connection with the place of delivery concerning a sale involving carriage of the goods, the Court held that, in the absence of a contractual provision, the place of delivery was that of the physical transfer of the goods, as a result of which the buyer obtained or should have obtained actual power of disposal over the goods, without having to refer to the substantive law applicable to the contract); see also [GERMANY Bundesgerichtshof 23 June 2010] (the judgment reproduces the findings of the judgment of the Court of Justice of the European Union of 25 February 2010); [ITALY Corte Suprema di Cassazione 5 October 2009] (the place of delivery is that of the final destination of the goods); [AUSTRIA Oberster Gerichtshof 3 April 2008] (the decisive criterion is that of the place where performance was actually effected).

26. [EUROPEAN COURT OF JUSTICE 25 February 2010 (case C-381/08) (Car Trim GmbH v KeySafety Systems Srl.)]; Court of Justice of the European Community, European Union, 9 July 2009 (case C-204/08), Report of Cases before the Court of Justice and the Court of First Instance, 2009, I-6073 (Rehder), paragraphs 30 et seq., (in connection with the concepts of sale and provision of services); Court of Justice of the European Community, European Union, 3 May 2007 (case C-386/05), Report of Cases before the Court of Justice and the Court of First Instance, 2007, I-3699 (Color Drack), paragraph 18.

27. See [AUSTRIA Oberster Gerichtshof 8 September 2005].

28. See [AUSTRIA Oberster Gerichtshof 29 March 2004] (subsidiary argument in connection with the implementation of article 5.1 of the Brussels Convention); CLOUT case No. 589 [GERMANY Landgericht Gießen 17 December 2002] (in connection with the application of Council Regulation No. 44/2001 of 22 December 2000, thus disregarding the scope of article 5.l(b) of the Regulation); CLOUT case No. 49 [GERMANY Oberlandesgericht Düsseldorf 2 July 1993] (in connection with the implementation of section 29 of the German Code of Civil Procedure).

29. [AUSTRIA Oberster Gerichtshof 29 March 2004] (principal argument in connection with the implementation of article 5.1 of the Brussels Convention); [BELGIUM Cour d'appel de Liège 28 April 2003] (in connection with the implementation of article 5.1 of the Brussels Convention); CLOUT case No. 361 [GERMANY Oberlandesgericht Braunschweig 28 October 1999] (in connection with the implementation of article 5.1 of the Brussels Convention).

31. CLOUT case No. 421 [AUSTRIA Oberster Gerichtshof 10 March 1998] (the Vienna Convention is not applicable for determining the place of performance with regard to a claim for restitution of the sale price following termination of the contract by agreement); CLOUT case No. 312 [FRANCE Cour d'appel de Paris 14 January 1998] (a general principle cannot be inferred from the Convention, since article 57(1) can correspond both to the principle of payment at the seller's domicile and to that of payment at the creditor's domicile).

32. [AUSTRIA Oberster Gerichtshof 29 June 1999] (the gap in the Convention with respect to the performance of restitutionary obligations should be filled by reference to a general principle of the Convention according to which the "place of performance for the obligations concerning restitution should mirror the place of performance for the primary contractual obligations"; the wording is general whereas the obligation in question, following termination by agreement, was concerned with the restitution of the goods); CLOUT case No. 205 [FRANCE Cour d'appel, Grenoble 23 October 1996] (see full text of the decision) (in an action for restitution of excess payments received by the seller, the court stated that there was a general principle under which "payment is to be made at the creditor's domicile, a principle that is to be extended to other international trade contracts under article 6.1.6 of the UNIDROIT Principles").

33. [AUSTRIA Oberster Gerichtshof 18 December 2002].


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