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GUIDE TO CISG ARTICLE 32

Secretariat Commentary (closest counterpart to an Official Commentary)


Guide to the use of this commentary

The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 30 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequences of the Official Text, e.g., article 30 [draft counterpart of CISG article 32].

To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a partial validation of citations to this Secretariat Commentary. This match-up indicates that article 30 of the 1978 Draft is substantially identical to CISG article 32.


Text of Secretariat Commentary on article 30 of the 1978 Draft
[draft counterpart of CISG article 32]   [Obligation in respect of carriage of goods]

PRIOR UNIFORM LAW

ULIS, articles 19(3) and 54.

COMMENTARY

1. Article 30 [draft counterpart of CISG article 32] describes several additional obligations of the seller where the contract of sale involves the carriage of goods.

Identification of the goods, paragraph (1)

2. The seller will normally identify the goods to the contract at or before the time of shipment by marking them with the name and address of the buyer, by procuring shipping documents which specify the buyer as the consignee or as the party to be notified on the arrival of the goods, or by some similar method. However, if the seller ships identical goods to several buyers he may fail to take any steps to identify the goods prior to their arrival. This may especially be the case where the sale is of goods such as gains which are shipped in bulk.

3. Article 30(1) [draft counterpart of CISG article 32(1)] states that one of the seller's obligations is either to mark the goods with an address, or otherwise to identify them to the contract, or to send the buyer a notice of the consignment which specifies the goods. If the seller does none of these three acts, article 79(2) [draft counterpart of CISG article 67(1)] provides that the risk of loss does not pass [see footnote 1]. In addition, the buyer has available all the usual remedies for the seller's breach of an obligation, including the right to require the seller to give notice of the consignment, the right to claim damages and, if the seller's failure to identify the goods to the contract or to send the notice of the consignment amounts to a fundamental breach, the right to avoid the contract.

Contract of carriage, paragraph (2)

4. Certain common trade terms such as CIF and C and F. require the seller to arrange for the contract of carriage of the goods while in other cases, such as FOB sales where the seller would not normally be required to do so, the parties on occasion agree that the seller will in fact make the shipping arrangements. Paragraph (2) specifies that in all such cases where "the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for the carriage to the place fixed by means of transportation which are appropriate in the circumstances and according to the usual terms for such transportation."

Insurance, paragraph (3)

5. Either the seller or the buyer may be obligated under the contract of sale to procure insurance for loss of the goods during their carriage. This obligation will normally be determined by the trade term used in the contract of sale and is not governed by the passage of the risk of loss. for example, if the price is quoted CIF, the seller must procure the insurance [see footnote 2] even though the risk of loss passes to the buyer when the goods are handed over to the carrier for transmission to the buyer [see footnote 3]. If the price is quoted C and F or FOB, in the absence of other indications in the contract, it is the buyer's responsibility to procure any necessary insurance [see footnote 4].

6. Paragraph (3) provides that if the seller is not bound by the contract to procure the insurance, he must provide the buyer with all available information necessary to enable him to effect such insurance. This is not a general obligation on the seller as he only has to provide such information if the buyer requests it of him. However, in some trades the seller may be required to given such information even without request on the buyer's part by virtue of a usage which becomes part of the contract pursuant to article 8 [draft counterpart of CISG article 9] of this Convention (OFFICIAL RECORDS, p. 30).


FOOTNOTES

1. Article 81(3) [draft counterpart of CISG article 69(3)] has a similar rule for those cases in which the contract of sale does not involve the carriage of goods.

2. E.G., Incoterms [(1976)], CIF, condition A.5.

3. If Incoterms [(1976)]. CIF is used, the risk of loss passes to the buyer when the goods have effectively passed the ship's rail at the port of shipment (condition A.6). For the rule under this Convention, see article 79(1) [draft counterpart of CISG article 67(1)] and paras. 4 to 7 of the commentary hereto.

4. See, for example, Incoterms [(1976)], CIF and FOB.


Pace Law School Institute of International Commercial Law - Last updated August 29, 2006
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