Case number: 194
Article number: sales convention / 57(1); 58(1)(2)
Thessaurs issue:
Country of decision: Switzerland
Year of decision: 1996
Type of decision: Judicial decision




Case 194: CISG 57(1); 58(1)(2)

Switzerland: Bundesgericht
18 January 1996
Original in German
Published in German in Arrets du Tribunal fédéral (ATF) 122 III 43
Commented on in French by Witz in Recueil Dalloz, 27e Cahier, Sommaires commentés 224 [1997]
Abstract published in German in Schweizerische Zeitschrift für Internationales und Europäisches Recht 53 [1996] and in Aktuelle Juristische Praxis (AJP) 1050 [1996]




The federal court had to decide in this case if the Zürich Court of Commerce had jurisdiction to adjudicate a lawsuit between a Swiss seller of a waste gas cleaning installation and an Italian buyer.





The plaintiff began the lawsuit in Zürich based on article 5(1) of the Lugano Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters, according to which, in matters relating to a contract, a person may be sued in the courts of the place of performance of the obligation concerned. The Zürich Court of Commerce affirmed its jurisdiction.





On appeal, the federal court found that the purchase price as the obligation in controversy

was governed by the CISG. The purchase price had to be paid at the seller's place of business (article 57(1)(a) CISG). If, however, payment was to be made against the delivery of the goods or of documents, the seller must be paid at the place where the delivery occurs (article 57(1)(b) CISG). In the present case, the federal court had to determine whether article 57(1)(b) CISG was applicable.





The federal court construed the words of article 57(1)(b) CISG "if the payment is to be made against the handing over of the goods" in the light of article 58(1)(2) CISG, pursuant to which the seller may make such payment a condition for delivering the goods or documents.





The federal court held that the present case did not fall within the ambit of article 57(1)(b) CISG. Thus, payment had to be made at the seller's place of business at Zürich. Consequently, the Zürich Court of Commerce had jurisdiction under article 5(1) of the Lugano Convention.