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Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

excerpts from

Judicial Interpretation and Application of The CISG in Germany 1988-1994

Martin Karollus [*]

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[Comments on place for delivery (Article 31)]

The LG Aachen implicitly held that Article 31(a) applies only if the parties have agreed to it. In any other case, Article 31(b) or (c) applies [LG Aachen 14 May 1993].[141] This apparently comports with the language of Article 31, which supports the conclusion that Article 31(a) is an exception to Articles 31(b) and (c). The carriage of goods, however, is usually required in international trade. For this reason, there should be a presumption that the parties intended carriage of goods, and the application of Article 31(a) should be the basic rule.[142]

If the parties agree that delivery shall be made frei Haus,[143] Article 31(a) and Article 67 are not applicable. The clause frei Haus concerns not only the place and costs of delivery, but also the passing of risk. The risk of non-performance passes from the seller to the buyer only upon delivery of the goods to the buyer's place of business.[144] If a seller could prove only that the goods were handed over to the carrier but not their arrival, he has not completed performance and is not entitled to payment [OLG Karlsruhe 20 November 1992].[145]

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FOOTNOTES

* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.

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141. Judgment of May 14, 1993, LG Aachen, 1993 RIW at 761.

142. See Ulrich Huber, Art. 31: Inhalt der Lieferpflicht und Ort der Lieferung, in Kommentar zum Einheitlichen UN-Kaufrecht 264, 269 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d ed. 1995); Karollus, supra note 20, at 108; Piltz, supra note 52, at 1104.

143. The term frei Haus corresponds with a delivery agreed to be made FOB buyer's place of business.

144. Bringschuld is a term for the obligation to deliver at the buyer's place of business.

145. See Judgment of Nov. 20, 1992, OLG Karlsruhe, 1993 NJW-RR 1316.

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Pace Law School Institute of International Commercial Law - Last updated August 11, 1999
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