III. Seller's obligation to deliver
As to the obligations of the seller, the CISG distinguishes between the sale involving carriage of the goods and other kinds of delivery (23). Commentaries and materials on the CISG refer to contracts of sale into which F- or C-terms have been incorporated (shipment contracts), as well as to contracts for delivery containing a D-clause (destination contracts) as examples for sales involving carriage of the goods as adressed in Art. 31 lit. a CISG (24).
In certain provisions, the CISG intends specific regulations to be only applicable to sales involving carriage of the goods, but not to other kinds of delivery. For example Art. 31 CISG points to different types and places of delivery (25). However, by using an INCOTERM, type and place of delivery are comprehensively determined in A.4 of the Rules (delivery) and, therefore, it is not necessary to resort to Art. 31 CISG (26). The seller's obligation in case of a sale involving carriage of the goods, to provide for the transportation of the goods (27) according to Art. 32(2) CISG, can equally be found in A.3 of the Rules (transportation and insurance contracts). Finally, when using an INCOTERM, the provision governing the passing of the risk in sales involving carriage of the goods pursuant to Art. 67(1)1 CISG (28) is replaced with the provision in A.5 of the Rules and it is therefore unnecessary to determine whether the relevant INCOTERM constitutes a sale involving carriage of the goods according to the CISG. The rule laid down in Art. 67(2) CISG is not only valid for sales involving carriage of the goods, but is of general application (29) and furthermore continuously reflected in B.5 of the Rules.
By applying an INCOTERM, the obligations of the seller laid down in the Rules prevail over the provisions of the CISG (30). Moreover, the Rules regulate all the aspects, in which, if the CISG is applied, sales involving carriage of the goods differ from other kinds of delivery. Therefore, it is unnecessary for a precise determination of the seller's obligation of delivery to consider to what extent the various INCOTERMS qualify as sales involving carriage of the goods pursuant to Art. 31 lit. a. CISG (31).
It shall not be examined at this point, to what extent the other provisions of the CISG - which do not distinguish between different kinds of delivery - remain applicable or are eclipsed, when using INCOTERMS (32). The experience that has been made so far does neither reveal any contradictions nor inconsistencies of significance, except for the seller's obligation to give notice laid down in Art. 32(1) CISG and in A.7 of the Rules. Whereas Art. 27 CISG is based in the despatch-principle (33), both, this principle and that the communication has to be received are advocated concerning notices under the INCOTERMS (34). Being too general, none of these two legal opinions is convincing. According to the D-clauses of the INCOTERMS the place of destination for the carriage of the goods is also the place where the responsibility regarding the performance of the contract passes from seller to buyer (35). However, this evaluation is not in line with the despatch-principle laid down in Art. 27 CISG. Responsibility for receiving his notices by the buyer should therefore rather be imposed on the seller, since otherwise compliance with his obligation to deliver can hardly be conceived (36). On the other hand, according to the F- and C-clauses the place where the responsibility passes from seller to buyer is where the principal carriage starts. The E- clause refers to the place of the seller's place of business (37). In these instances it is not convincing that the exporter should be liable for the correct and punctual receiving of communications by the buyer which the seller is obliged to furnish.
Today, the INCOTERMS have to be regarded in the light of the CISG (38). Since a differing interpretation cannot be concluded from the Rules, the despatch-principle of Art. 27 CISG also applies to the obligations to inform imposed by the INCOTERMS. Solely regarding a D-clause, the seller is - in contrast to Art. 27 CISG - responsible that the buyer receives the notice correct and punctually. This conclusion is based on the fact that the seller by agreeing on a D-clause has taken over additional obligations, which though not excluded, on the other hand are not reflected within the structure of the CISG. Consequently, the interpretation of Art. 27 CISG has to be adjusted to this significant modification of the CISG.
(23) Herber/Czerwenka, Internationales Kaufrecht, 1991, Art. 31, No. 3.
(24) Commentary on the Draft Convention on Contracts for the International Sale of Goods prepared by the Secretariat, Document A/CONF.97/5, Art. 29, No. 5 = United Nations Conference on Contracts for the International Sale of Goods, Official Records, New York, 1981 (A/CONF.97/19), 29.
(25) Cf. Herber/Czerwenka, Internationales Kaufrecht, 1991, Art. 30, No. 2; Art. 31, No. 3.
(26) Cf. Bianca/Bonell-Lando, Commentary on the International Sales Law, 1987, Art. 31, No. 2.4.
(27) Cf. von Caemmerer/Schlechtriem-Huber, Einheitliches UN-Kaufrecht, 2nd edition 1995, Art. 32, No. 17.
(28) Cf. Herber/Czerwenka, Internationales Kaufrecht, 1991, Art. 67, No. 3.
(29) Staudinger-Magnus, UN-Kaufrecht, 1994, prior to Art. 66 et seq., No. 3.
(30) Artt. 30 and 31 CISG, irrespective of Artt. 6 and 9 CISG, expressly point out that individual agreements prevail. Cf. also von Caemmerer/Schlechtriem-Huber, Einheitliches UN-Kaufrecht, 2nd edition 1995, Art. 31, No. 75 et seq.; Staudinger-Magnus, UN-Kaufrecht, 1994, Art. 31, No. 3 and 6.
(31) Less distinction in: Honsell-Karollus, Kommentar zum UN-Kaufrecht, 1997, Art. 31, No. 12; von Caemmerer/Schlechtriem-Huber, Einheitliches UN-Kaufrecht, 2nd edition 1995, Art. 32, No. 18; Neumayer/Ming, Convention de Vienne sur les contrats de vente internationale de marchandises, 1993, Art. 31, No. 7.
(32) For a more detailed analysis cf. Renck, Der Einfluß der INCOTERMS 1990 auf das UN-Kaufrecht, 1995; von Caemmerer/Schlechtriem-Hager, Einheitliches UN-Kaufrecht, 2nd edition 1995, Art. 67, No. 6.
(33) Cf. Staudinger-Magnus, UN-Kaufrecht, 1994, Art. 27, No. 7; von Caemmerer/Schlechtriem-Schlechtriem, Einheitliches UN-Kaufrecht, 2nd edition 1995, Art. 27, No. 11.
(34) Bredow/Seiffert, INCOTERMS 1990, 2nd edition 1994, at 30 et seq.; different: Renck, Der Einfluß der INCOTERMS 1990 auf das UN-Kaufrecht, 1995, at 158 et seq.
(35) Cf. Bredow/Seiffert, INCOTERMS 1990, 2nd edition 1994, at 21.
(36) Responsibility is imposed on the buyer to the same extent as to his obligation to give notice to the seller according to the F-clauses.
(37) Cf. Bredow/Seiffert, INCOTERMS 1990, 2nd edition 1994, at 20 et seq.
(38)See supra, I., last paragraph.