The place of performance of the obligation will be that expressly agreed by the parties in the contract. Even if such a circumstance is not expressly provided, rules on contract interpretation, including commercial usages, lead very often to conclude an implied term of performance in a determined place. Thus, in relation with a pecuniary obligation, “cash clear”, “cash against invoice“ and “cash before delivery” clauses usually imply that payment must be made at the seller's place of business. Likewise, when payment must be made against delivery of goods or documents in international sales, the place of payment shall be the place of delivery [Section 28 of the Sales of Goods Act of 1979; Section 29 of the Sale of Goods Act of Antigua and Barbuda; Section 29 of the Sale of Goods Act of Montserrat; Section 29 of the Sale of Goods Act of Bahamas; Section 29 of the Sale of Goods Act of Trinidad and Tobago; Section 30 of the Sale of Goods Act of Belize; Section 28 of the Sale of Goods Act of Jamaica; Article 1.929 of the Colombian Civil Code; Article 1.087 of the Costa Rican Civil Code; Article 352 (a) of the Cuban Civil Code; Article 1.651 of the French and Dominican Civil Code; Article 1.825.2 of the Guatemalan Civil Code; Article 1.426 of the Haitian Civil Code; Article 7:26 of the Dutch and Suriname Civil Code; Article 1.436 of the Honduran Civil Code; Articles 2.084 and 2.294 of the Mexican Civil Code; Article 2.661 of the Nicaraguan Civil Code; Article 360 of the Nicaraguan Commercial Code; Article 1.271 of the Panamanian Civil Code; Article 773 of the Panamanian Commercial Code; Article 1.389 of the Puerto Rican Civil Code; Article 1.443 of the Saint Lucian Civil Code; Article 299 of the Saint Lucian Commercial Code; Article 1.528 of the Venezuelan Civil Code; Article 57.1 (b) CISG].

If the contract does not specify or give any indication as to the place of performance, a subsidiary rule, acting as an interpretative or integration rule to fill in the gap seems appropriate. The first paragraph of Article 6.1.1 of the OHADAC Principles makes the distinction, on this subject, between pecuniary and non-pecuniary obligations.

There is a wide diversity of solutions in Caribbean legal systems for pecuniary obligations. On the one hand, most of them provide that pecuniary obligations must be performed in the creditor's place of business [e.g. Article 1.083 of the Saint Lucian Civil Code; Article 57.1 (a) CISG; Article 6.1.6 (1) (a) UP; Article III-2:101 (1) (a) DCFR], determined in some cases at the time of conclusion of the contract [Article 7:101 (1) (b) PECL; Article 125.1 CESL. This rule is also usual in common law countries] and in other cases at the time of payment (e.g. Article 236.1 of the Cuban Civil Code). On the other hand, most civil law systems prefer the opposite rule, inspired by the favor debitoris principle, which leads to the debtor's place of business (Article 778 of the Costa Rican Civil Code; Article 451 of the Costa Rican Commercial Code; Article 1.646 of the Colombian Civil Code; Article 1.247 of the French and Dominican Civil Code, maintained in Article 191 of the Proposals for the Reform of French Law on Obligations of 2013; Article 1.398 of the Guatemalan Civil Code; Article 1.033 of the Haitian Civil Code; Article 1.436 of the Honduran Civil Code; Article 2.082 of the Mexican Civil Code; 2.031 of the Nicaraguan Civil Code; Article 1.058 of the Panamanian Civil Code; Article 1.125 of the Puerto Rican Civil Code; Article 1.295 of the Venezuelan Civil Code).

The OHADAC Principles have opted, in letter (a) of paragraph 1, for the rule that considers that the place of performance of pecuniary obligations is that of the creditor's place of business at the time the contract is concluded. This choice is more in line with international trade practices and the more common means of payment. Moreover, the determination of this place at the time of conclusion of the contract meets the need for predictability as well as the contractual equilibrium that recommends that the obligor be able to anticipate expenses inherent to the payment. Although this rule does not converge with contrary presumptions in most civil law systems, its application is not controversial, given the non-mandatory character of this question. The choice of the OHADAC Principles by the parties shall imply the inclusion of this rule in the contract, being a purely factual circumstance that does not entail interpretative difficulties.

There is a greater unanimity in determining the place of performance of non-pecuniary obligations where this place cannot be inferred from the contract. It is presumed to be the place where the party obliged to perform has its place of business (Article 1.646 of the Colombian Civil Code; Article 778 of the Costa Rican Civil Code; Article 451 of the Costa Rican Commercial Code; Article 1.247 of the French and Dominican Civil Code, maintained in Article 191 of the Proposals for the Reform of the French Law on Obligations of 2013; Article 1.398 of the Guatemalan Civil Code; Article 1.033 of the Haitian Civil Code; Article 6:41 of the Dutch and Suriname Civil Code; Article 1.436 of the Honduran Civil Code; Article 2.082 of the Mexican Civil Code; Article 2.031 of the Nicaraguan Civil Code; Article 1.058 of the Panamanian Civil Code; Article 1.125 of the Puerto Rican Civil Code; Article 1.083 of the Saint Lucian Civil Code; Article 1.295 of the Venezuelan Civil Code; Article 31 (c) CISG; Article 6.1.6 (1) (b) UP; Article 7:101 (b) PECL; Article III-2:101 (1) (b) DCFR]. Letter (b) of paragraph 1 of this Article follows this rule generally accepted and fully consistent with the contract equilibrium. In civil law systems, however, there are some special rules about obligations on specific goods, which point to the place of situation, production or delivery of the goods to the bearer [Article 1.646 of the Colombian Civil Code, Article 778 of the Costa Rican Civil Code; Article 1.247 of the French and Dominican Civil Code Article 236 of the Cuban Civil Code; Article 1.398 of the Guatemalan Civil Code; Article 1.033 of the Haitian Civil Code; Article 6:41 of the Dutch and Suriname Civil Code; Article 1.436 of the Honduran Civil Code; Article 2.083 of the Mexican Civil Code; Article 2.031 of the Nicaraguan Civil Code; Article 1.050 of the Panamanian Civil Code; Article 758 of the Panamanian Commercial Code; Article 1.125 of the Puerto Rican Civil Code; Article 1.083 of the Saint Lucian Civil Code; Article 1.295 of the Venezuelan Civil Code; Articles 31 CISG]. In any case, these special rules do not question the general rule, because to a large extent, as stated in Article 6.1.1, the subsidiary rules are only applicable where the place of performance cannot be inferred from the rules on contract construction or from trade practices.

Paragraph 2 states an interpretative rule in cases where the current place of business or residence cannot be determined because the party has several places of business or residences. The place of business or the residence most closely connected at the time of conclusion of the contract will be applied [Articles 7:101 (2) PECL; III-2:101 (2) (a) DCFR; and 125.2 CESL].

If a party changes its place of business, for economic reasons, performance should be at the new place of business, providing that that party gives sufficient notice to the other party and assumes the expenses deriving from that change, which may be justified by many reasons, including banking negotiation costs. Hence the rule stated in paragraph 3 [also included in Article 2.032 and 2.033 of the Nicaraguan Civil Code; Article 1.400 of the Guatemalan Civil Code; Article 6.1.6 (2) UP; Article III-2:101 (1) (a) DCFR].