ABSTRACT
The place of performance for the obligations concerning restitution should mirror the place of performance for the primary contractual obligations [. . .]. If, under Art. 31 CISG, the delivery obligations require the goods to be picked up at the seller’s place of business (or as here, the manufacturer’s), or if the seller is obliged to give the goods to a carrier for delivery, then, in the event of a consensual avoidance of the contract and in the absence of a different arrangement, the seller has to pick up the goods at the buyer’s place of business or the buyer has to hand the goods over to a carrier for return delivery to the seller (or, as here, the manufacturer), respectively. Restitution is to be effected in these cases at the buyer’s place of business [. . .]. Since in this case, the primary contractual performance was of a sale by delivery to a place other than the place of performance, with the risk passing to the German manufacturer, this arrangement for the passing of the risk must also reversibly apply for a consensual avoidance of the contract. Subsequent to the consensual avoidance of the contract, the passing of risk to the seller is effected with the handing over of the goods to be returned to the commissioned carrier at the place of business of the buyer. According to the agreement, the [buyer] had to send the panels back to the manufacturer. The [seller] also did not claim that the delivery of the panels to the intervener as a commissioned carrier was equal to a breach of contract. Moreover, in filling the gap, the principles in Art. 82 CISG are to be applied (loss of right to declare the contract avoided or to deliver substitute goods). Under these provisions, the principle of returning the goods undamaged as a prerequisite to exercising the right of avoidance suffers considerable restrictions which turn the principle into an exception [. . .]. According to Art. 82(2)(a) and (b) CISG, the seller bears the risk during the undoing of the contract for any deterioration and/or loss of the goods, so far as this is not due to acts or omissions of the buyer. Thus, the seller alone bears the risk of chance accidents and force majeure. This one-sided or predominant burdening of the seller with the risks of restitution can only be explained by the [seller] having caused these risks with his breach of contract [. . .]. In the absence of a differing agreement, this Court is of the opinion that the application of these rules is to be considered regarding the rights of the parties in consensual avoidance [. . .]. The [seller’s] claim for compensation, to be judged in accordance with the CISG, can only successfully be asserted if the deterioration to the goods is due to acts and omissions of the [buyer]. The [seller] has not shown this. The [seller] itself claimed that it was the result of the transportation of the goods to the manufacturer that the panels arrived in such a desolate condition, useful only as burning material. This assertion is no different than claiming that the damage occurred during the return transportation. That this transportation – as the [seller] furthermore asserted – was done contrary to agreement, was not proven. Since the [seller] bore the risk of the return transportation, as already discussed above, the [seller] has to carry its consequences. The legal understanding of the Court of Appeal [Court of Second Instance], that each party is liable for restitution of performance in the same way as for the primary obligations of the contract – meaning, in the event of the loss of the goods by the buyer after the avoidance of the contract, the buyer is obliged to pay damages in accordance with Art. 74 et seq. CISG [. . .] – is irrelevant due to the stated legal position pertaining to the transfer of risk. [. . .]
