Originally from:
Practitioner's Guide to the CISG - Hardcover
Practitioner's Guide to the CISG - Electronic
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§ 10.1 Overview
Articles 66-70 of the CISG deal with the consequences of
accidental loss or damage to the goods occurring between the
conclusion of the contract and its performance. These provisions
essentially determine which party bears the consequences of loss or
damage to the goods involved in a transaction. As for other CISG
rules those pertaining to the passing of risk apply only if the parties
have not otherwise dealt with the issue. In international sales it is not
unusual for passing of risk to be taken into consideration by the
parties by way of reference to the International Chamber of
Commerce (ICC) INCOTERMS.1 Therefore, the most likely issue
that arises in connection with these concerns is the question of
whether the parties intended the INCOTERMS terms to displace
the CISG rules. In making such a determination, courts and
practitioners should be aware that while “a discrepancy between
the results under the INCOTERMS and under the CISG is
possible,”2 the ICC has tried to make INCOTERMS compatible
with the CISG.3 Another positive aspect about the INCOTERMS is
that they are revised every ten years to stay abreast of
developments in international contract law.
It is fair to say that courts, pursuant to Article 6 of the CISG, are
quite open in recognizing the parties’ freedom to arrange their
business relationship in accordance with their needs. However,
courts should also pay attention to Article 8(3). If the parties set no
specific terms, courts must carefully consider whether, pursuant to
Article 9 (in conjunction with Article 8), the conduct in question has
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Francesco G. Mazzotta holds law degrees from the University of Naples, Italy, (Dottore in Giurisprudenza) and the University of Pittsburgh School of Law (Master of Laws in International and Comparative Law and Juris Doctor). He has had legal internships with a United States Magistrate Judge, the Office of Chief Counsel of the Internal Revenue Service, as well as with the United Nations Commission on International Trade Law in Vienna, Austria. He has served as an arbitrator for the Willem C. Vis International Commercial Arbitration Moot Court in Vienna and as an adjunct professor in universities in both the United States and Italy. Mr. Mazzotta has authored numerous articles on the CISG and, after clerking with several trial judges in Pennsylvania, he is currently a judicial law clerk in the chambers of the Honorable Judge John M. Cleland on the Pennsylvania Superior Court. Mr. Mazzotta is admitted to the bar in New York (U.S.A.) and Italy.
