Prof. Dr. Burghard Piltz (Gütersloh, Deutschland)
INCOTERMS and the UN Convention on Contracts for the International Sale of Goods (IV. Buyer's obligation to pay / V. Outlook).


IV. Buyer's obligation to pay

In B.1, the Rules regulate that the buyer has to pay the price as provided in the contract of sale. The Rules do not lay down a specific obligation, but rather underline every buyer's self-evident principal obligation (39). The INCOTERMS do not contain any further provisions concerning the obligation to pay the price. Therefore, unless other agreements, practices or usages prevail regard is to be had to Artt. 54 CISG et seq.

Pursuant to Art. 58(1) CISG, the price has to be paid, as soon as the seller has placed the goods or the documents controlling their disposition (40) "at the disposal of the buyer". Consequently, concerning sales involving carriage of the goods according to Art. 31 lit. a. CISG, payment of the price falls due, as soon as the last carrier offers the goods to the buyer at the place of destination of this carriage (41). In contrast, 271 BGB (German Civil Code) determines the time of payment independently from the disposal of the goods. Thus, regarding the BGB, the various types of delivery under the INCOTERMS do not raise any problems concerning the time of payment. However, it seems that it has not been thoroughly discussed so far which consequences follow from the rule in Art. 58(1) CISG with respect of the time of payment, if an INCOTERM has been incorporated into a contract governed by the CISG (42).

According to the E-clause, the seller is obliged to place the goods at the buyer's disposal at the place agreed on or usual for delivery. According to the D-clauses, the seller is obliged to place the goods at disposal at the named place of destination and the buyer is obliged to take delivery there (A.4 of the Rules). Therefore, according to Art. 58(1) CISG, the payment of the price falls due as soon as the seller has fulfilled these obligations.

The F-INCOTERMS impose the obligation on the seller to hand over the goods not to the buyer, but to the carrier at the place where the principal carriage being organized by the buyer starts (A.4 of the Rules). Irrespective of the intervening of a carrier the buyer has to take delivery of the goods at that place (B.4 of the Rules). Therefore, the place of delivery and the place of taking delivery coincide (43). On the other hand, the sale involving carriage of the goods according to Art. 31 lit. a CISG presupposes that the buyer's taking delivery of the goods is not to take place at the same place as that where the seller has to fulfill his obligation to deliver (44). Therefore, the F-INCOTERMS do not constitute a sale involving carriage of the goods according to Art. 31 lit. a CISG although it has been stated otherwise in the materials on the CISG (45). Instead, as soon as the goods are handed over to the carrier they are rather placed at the buyer's disposal and thus the payment of the price is due according to Art. 58(1) CISG. The carrier who is - according to the F-clauses - contracted by the buyer (B.3 of the Rules) is at the same time appointed to take delivery of the goods on his behalf (46). If the parties, however, have agreed on the clause "FOB shipped" (47) or the seller himself has contracted with the carrier pursuant to A.3 a) of the Rules to the FCA clause, the transaction equals a sale involving carriage of the goods according to Art. 31 lit. a CISG. Consequently, the payment of the price does not fall due before the carrier offers the goods to the buyer at the place of destination.

Contrary to the regulation in the F-INCOTERMS, according to the C-INCOTERMS it is the seller who is obliged to contract with the carrier at his own expense (A.3 of the Rules). The risk passes when the goods are handed over to the carrier (A.5/B.5 of the Rules), just as it does according to the F-clauses, but with respect to Art. 58 CISG, the passing of the risk is of no importance for the determination of the time of payment of the price. In general, the place of delivery does not change either, compared to the F-clauses (A.4 of the Rules). However, different from the F-clauses, B.4 of the Rules on all C-clauses point out that the buyer has to take delivery of the goods only at the place of destination of the carriage. Therefore, the goods are accepted by the buyer at a place different from that where the seller has to fulfill his obligation to deliver. The carrier is thus not acting on behalf of the buyer in order to take delivery of the goods (48). Since the seller is additionally obliged to contract with the carrier according to the C-INCOTERMS (A.3 of the Rules), all conditions of a typical contract of sale involving carriage of the goods are met (49). Consequently, according to Art. 58(1) CISG the price falls due as soon as the goods have arrived at the agreed place of destination, when a C-INCOTERM is incorporated into the contract.

V. Outlook

In practice, the INCOTERMS as well as the CISG are of fundamental significance for international transactions. However, the combination of both sets of rules raises numerous issues that still wait for well consolidated and acknowledged answers. Preliminary remarks or additional regulations in the Rules on the to-be-revised version in the year 2000 of the INCOTERMS could point the way towards fostering orientation and would at the same time underline the strength of the CISG and the INCOTERMS as a combination of provisions suitable for international trade.



   Anmerkungen:


(39) Ramberg, Guide to INCOTERMS 1990, 1991, at 26.

(40) Cf. von Caemmerer/Schlechtriem-Hager, Einheitliches UN-Kaufrecht, 2nd edition 1995, Art. 58, No. 10.

(41) von Caemmerer/Schlechtriem-Hager, Einheitliches UN-Kaufrecht, 2nd edition 1995, Art. 58, No. 7; Staudinger-Magnus, UN-Kaufrecht, 1994, Art. 58, No. 15; Honsell-Schnyder/Straub, Kommentar zum UN-Kaufrecht, 1997, Art. 58, No. 27.

(42) Cf. Rudolph, Kaufrecht der Export- und Importverträge, 1996, Art. 58, No. 9; Schütze-Piltz, Münchner Vertragshandbuch, Band III, 2. Halbband, 1997, at 407 et seq.

(43) Cf. Renck, Der Einfluß der INCOTERMS 1990 auf das UN-Kaufrecht, 1995, at 176; differently: Sieg, RIW 1995, at 101.

(44) Cf. Piltz, Internationales Kaufrecht, 1993, 4, No. 18.

(45) See supra, footnote 24.

(46) Cf. Bredow/Seiffert, INCOTERMS 1990, 2nd edition 1994, at 81.

(47) Cf. Bredow/Seiffert, INCOTERMS 1990, 2nd edition 1994, at 62 et seq.

(48) Bredow/Seiffert, INCOTERMS 1990, 2nd edition 1994, at 71, 81; Renck, Der Einfluß der INCOTERMS 1990 auf das UN-Kaufrecht, 1995, at 176.

(49) Piltz, Internationales Kaufrecht, 1993, 4, No. 18 et seq.