Guide to the use of this commentary
The Secretariat Commentary is on 1978 Draft article 80 (which became CISG article 68). Significant changes were made to article 80 of the 1978 Draft. Accordingly, the Secretariat Commentary on 1978 Draft article 80 is of limited utility as an aid to the interpretation of CISG article 68.
Text of Secretariat Commentary on article 80 of the 1978 Draft
[draft counterpart of CISG article 68] [Passing of risk when goods sold in transit]
PRIOR UNIFORM LAW
ULIS, article 99.
1. If the goods were in transit at the time the contract of sale was concluded, the risk of loss is deemed to have passed retroactively at the time the goods were handed over to the carrier who issued the documents controlling their disposition. This rule that the risk of loss passes prior to the making of the contract arises out of purely practical concerns. It would normally be difficult or even impossible to determine at what precise moment in time damage known to have occurred during the carriage of the goods in fact occurred. It is simpler if the risk of loss is deemed to have passed at a time when the condition of the goods was known. In addition, it will usually be more convenient for the buyer, who is in physical possession of the goods at the time the loss or damage is discovered, to make claim against the carrier and the insurance company.
2. However, any loss or damage which had already occurred at the time of the conclusion of the contract and of which the seller knew or ought to have known but which he did not disclose to the buyer is at the risk of the seller.