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Editorial remark
by Till Maier-Lohmann

The court applied the CISG under Art. 1(1)(a) CISG, but did not comment on the status of Taiwan under the CISG. Instead it relied on the Taiwanese seller having a foreign trade agent (Jialianheng) whose place of business was in China. It is not certain, however, whether the court considered the Chinese or the Taiwanese party to be the seller under the relevant contracts. Nevertheless, since the buyer was an Australian company, and Australia and China are both Contracting States, Art. 1(1)(a) CISG was applied. The seller claimed for the price of the sold shoes that remained for over 200 days in an Australian port. It claimed that there had been a usage between the parties that the buyer pays the price before delivery and that in any case the FOB Xiamen term meant that the risk had already passed onto the buyer. The court denied both arguments, because the usage was not proven and risk and ownership were different concepts and, thus, the passing of risk does not mean that the seller has fulfilled his obligation to deliver the goods. The court might have considered the transfer of property a prerequisite for the seller to claim the price.