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Review of Cases of the time of passing of risk in the Article 67 CISG

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2019, (25), pp.85-122
  • DOI : 10.31839/ibt.2019.04.25.85
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : March 29, 2019
  • Accepted : April 23, 2019
  • Published : April 30, 2019

Choi Sung Soo 1

1동아대학교

Accredited

ABSTRACT

CISG takes a traditionsprinzip position under Article 66 of the CISG on the passing of risk. Traditionsprinzip refers to the passing of risk from the seller to the buyer at the time the seller delivers the goods to the buyer after the contract is concluded. Article 66 of the CISG declares traditionsprinzip in the passing of risk, and states the effect on the buyer's obligation to pay by traditionsprinzip. Articles 67 to 69 of the CISG set out the rules for when the risk is passed to the buyer. Article 70 of the CISG provides for the allocation of the risk of loss or damage in the event of fundamental breach of contract by the seller. In this paper, the review is focused only on the Article 67 of the CISG, one of the provisions concerning the timing of the passing of risk. Article 67 of the CISG consists of Art 67(1) and 67(2), and Article 67 (1) consists of 3 sentences, here it is necessary to clarify the specific meaning of 3 sentences including contracts of sale involving carriage of goods. Therefore, this article examines the meaning of each provisions of Article 67 of the CISG and, in particular, extracts the cases applying Article 67 (1) of the CISG, and examines whether the first and second sentences of the Article 67(1) applies for the understanding of specific meaning and use of Article 67 of the CISG. The provisions on the time of the passing of risk raises some difficult issues just like, the concept of contracts of sale involving carriage of goods, the meaning of the first sentence and second sentence of Article 67(1), the use of Incoterms and its relationship with CISG, the meaning of risk and handing over of the goods, the concept of the first carrier, whether the carrier should be an independent entity, whether the forwarding agency is included into the carrier, whether the signing of the transport contract and insurance contract affects the passing of the risk, and the method of specifying of unascertained goods. I have had the opportunity to look at each issue through actual cases in each country. I look forward to providing clearer guidance in the interpretation of Article 67 of the CISG taking note of this trend of relevant national precedents.

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