Case number: 221
Article number: sales convention / 9 (2); 57 (1)
Thessaurs issue:
Country of decision: Switzerland
Year of decision: 1997
Type of decision: Judicial decision

Case 221: CISG 9 (2); 57 (1)
Switzerland: Zivilgericht des Kantons Basel-Stadt, P4 1996/00448
3 December 1997
Original in German
Unpublished
The court of first instance had to decide whether it had jurisdiction to adjudicate a lawsuit between a Swiss plaintiff (seller) and an Italian company (defendant-buyer), which had purchased 5,000 tons of Bulgarian white urea. The Italian buyer did not pay the purchase price, and the Swiss seller commenced the lawsuit in Basel based on article 5 (1) of the Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, pursuant to which a person may be sued in the courts of the place of performance of the obligation concerned.

The court found that the purchase price of the obligation in controversy was governed by the CISG. According to article 57 (1) CISG, the purchase price must be paid at the place the parties agreed upon; if no agreement was made, at the seller=s place of business or, if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. In the present case, the parties had agreed upon payment within 30 days after delivery of a bill of lading and several other documents. As the case dealt with a purchase on credit, the rule on the handing over did not apply.

The court dismissed the plaintiff's allegation that a usage existed and was known to the parties (article 9 (2) CISG), pursuant to which bank transfers have to be made to the seller=s account in the import trade. Therefore, the court concluded that the place of performance was in Binningen (Canton of Basel-Landschaft), and that the courts of Basel-Stadt had no jurisdiction to adjucate the matter and dismissed the lawsuit.