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| An Austrian seller and a German buyer concluded a contract for the sale of furniture. The buyer refused to pay because the furniture had not been delivered as agreed upon. The seller commenced a legal action to obtain payment.
As to the scope of CISG, the Court observed that matters such as the existence or validity of a recognition of debt are not governed by CISG but by the applicable domestic law. The Court dismissed the seller's claim under CISG. The buyer has the right to suspend payment according to Art. 71 CISG, if the seller will not perform a substantial part of its contractual duties. In the case at hand the seller had not delivered the goods and it became apparent that it would not be able to do it in the future, since the furniture had disappeared from its storage place in Hungary. The Court further held that the risk for accidental loss of the goods had not passed to the buyer under Art. 66 CISG. The seller did not bring evidence that the parties derogated from the rule on passing of risk contained in CISG by stipulating that the buyer should bear all risks already upon storage of the goods. Therefore, according to Art. 69(2) CISG, if the buyer is bound to take over the goods at a place other than a place of business of the seller as in the case at hand where the buyer had to take delivery in Hungary - the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. The Court held inter alia that the seller had not yet placed the goods at the buyer's disposal under Art. 31(b) CISG, since it had not fulfilled all preparatory acts required by the contract and in particular the duty of loading the furniture on train carriages or trucks. |