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| Abstract | ||||||||||||||||||
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| A German private auctioneer held a sale by auction of certain items previously purchased from a company in Switzerland. When the auction sale was over, the auctioneer concluded a contract with a Swiss buyer for the sale of industrial machinery ("centre d'usinage") stored on the premises of said company in Switzerland. The machinery was composed of two devices: the main machinery and its support base. The buyer paid only part of the price. The seller delivered the main machinery only--which could not work without its support baseand retained the support base as a lien for the unpaid part of the purchase price.
A dispute arose between the parties on the issue of the property in the support base when the seller notified its intention to transfer said support base to another warehouse in Switzerland or to transport it abroad, in order to reduce the high storage expenses, and to sell it immediately afterwards to a third party. The buyer sought a summary injunction to restrain the seller from doing so. The court held that sales by auction are not governed by the CISG (Art. 2(b) CISG). However, in the case at hand the CISG was held applicable inasmuch as the contract had been concluded by the German auctioneer privately, outside the auction sale. The court further held that the CISG does not govern the effect which the contract may have on the property in the goods sold (Art. 4(b) CISG) and that the transfer of the property is exclusively a matter for domestic law. The court decided this matter on the ground of Swiss domestic law--applicable as the lex rei sitae--which provides that the property is transferred only upon the buyer's taking possession of the goods. Although the support base was in the property of the seller under Swiss domestic law, the court held that the buyer could still enforce the seller's obligation to deliver the goods on the ground of Art. 30 CISG, as well as to claim damages, but only after having performed its own obligation to pay the full purchase price (Arts. 58(1) and 85 CISG). The court held that the seller was entitled to transfer the support base to a different warehouse in Switzerland. However, payment for transportation was to be advanced by the seller, because in proceedings for a summary injunction the seller could not rely on Art. 87 CISG, which gives a party the right to deposit the goods in the warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable. Instead, the court held that the seller was neither entitled to export nor to sell to a third party the unpaid support base. According to the court, although Art. 88(1) CISG grants the seller who is under an obligation to preserve the goods the right to sell them if there is an unreasonable delay by the buyer in taking possession of the goods or in paying the price, a different order can be granted by the court in proceedings for a summary injunction. This all the more so since the goods at hand are not subject to rapid deterioration (Art. 88(2) CISG), and an authorization by the court to sell the unpaid goods would be contrary to the Swiss rules of civil procedure. |