Data

Date:
19-12-2008
Country:
Russian Federation
Number:
14/2008
Court:
International Court of Arbitration of the Chamber of Industry and Commerce of the Russian Federation
Parties:
--

Keywords

FILLING IN GAPS (ART. 7(2) CISG) - TRANSFER OF OBLIGATION TO PAY THE PRICE FROM ORIGINAL BUYER TO A THIRD PERSON - REFERENCE TO ART. 9.2.1, LIT. A), UNIDROIT PRINCIPLES 2004 REFLECTING A PRACTICE WIDELY USED IN INTERNATIONAL COMMERCIAL PRACTICE

Abstract

A Russian company ("the seller") entered into a contract with an Italian company ("the buyer") for the delivery of certain goods. In the course of the performance of the contract, the buyer was on several occasions contacted not by the Italian company but by a Swiss company closely connected to the Italian company ("teh respondent") , which also paid part of the price for the goods delivered. As a consequence when the seller, though having duly performed its obligations under the contract, was not paid the whole price, it filed a claim for the payment of the outstanding amount of the price and the stipulated penalty for delayed payment not against the original buyer, i.e. the Italian company, but against the respondent which objected that it was not party to the sales contract.

The Arbitral Tribunal, after giving due consideration to the circumstances, found that in the case at hand the obligation to pay the price under the sales contract had been transferred, with the consent of the seller, from the buyer to the respondent. According to the Arbitral Tribunal, this form of transfer of obligations “is widely used in international commercial practice as reflected in the UNIDROIT Principles” and referred in particular to Article 9.2.1 lit.a) of the 2004 edition of the Principles.

Fulltext

(excerpt):

“[…] This method of the transfer of obligations which is widely used in international commercial practice is reflected in the Principles of International Commercial Contracts (the UNIDROIT Principles), a document of the private law unification, which is a set of generally accepted rules in international trade. Thus under Article 9.2.1 “Modes of transfer” an obligation to pay money or render other performance may be transferred from one person (the original obligor) to another person (the new obligor): a) by an agreement between the original obligor and the new obligor with due regard to Article 9.2.3 (subject to the obligee’s consent); b) by an agreement between the obligee and the new obligor, by which the new obligor assumes the obligation […]”.}}

Source

Information kindly provided by Professor Alexander Komarov, President of the International Court of Arbitration of the Chamber of Industry and Commerce of the Russian Federation.}}