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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 5 [Exclusion of seller's liability for death or personal injury]

[TEXT OF THE UNIFORM LAW]

This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person [1].

[COMMENTARY]

[1] [products liability]

      [1.1] This rule relates to products liability. This term refers to the liability of the manufacturer and/or importer, seller and/or supplier for personal injury, damages and further possible damages to property which have been caused by defective goods. In a number of States this kind of liability has developed into an independent legal institute. While it is based in some countries (e.g. FRG) on the law of torts, it is construed in others (e.g. France) as falling under the law of contracts. There is also a combination of both (USA, Britain) (Liebold, Produktenhaftung, 1 fol). By enacting the guideline of the Council of the European Communities of 25 July 1985 for the alignment of the Member States' legal and administrative rules of liability for defective products (ABl. EG No. L 210/29-33), the obligation was placed on those States to put into effect relevant and generally mandatory liability norms under the law of torts (Liebold, "Zur Vereinheitlichung des Produktenhaftungsrechts der EGStaaten durch die EG-Produktenhaftungsrichtlinie", RiA, 112, Beilage zu AW-Dok., 1989/27, p. II).

This article clearly stipulates that national law and/or possibly other conventions apply to liability for personal injury caused by the goods sold. It is not relevant in this context whether it is the buyer himself, his employees, other Contracting Parties in the purchaser chain or third parties who suffer such personal injury. What is relevant, however, is whether or not it was the defect in the goods sold which caused the injury. Provided that is so, the buyer can, as a result, claim damages under national law (Schlechtriem, 20) also by way of recourse where they will typically appear as claims for damages. [page 46]

      [1.2] Proposals to exclude products liability for damages or injuries other than personal injury, as in damages in property, were not successful. It seems that, in spite of the opposite view of the Norwegian delegate (O.R. 245), the reverse conclusion has to be drawn from that situation that they come under the Convention. The arguments put forward against the proposal to exclude products liability in the case of such damages (set-back for the unification of law, difficulties in distinguishing claims) only serve to emphasize this. Therefore, in our view, claims from products liability for damages other than personal injury in the relationship between the Contracting Parties must be considered as part of the Convention and in general as being regulated by it (in particular because of the provisions on quality and the rights of the buyer). This is clearly the dominating view expressed in publications (Schlechtriem, 20 fol; Honold, 101 fol; Stoll/Freiburg, 259; Khoo/BB, 50; Herber /Doralt, 38).

Only occasionally is it affirmed that the Convention is not to apply to product liability (M. Ndulo, "The Vienna Sales Convention 1980 and the Hague Uniform Laws on the International Sale of Goods 1964: A Comparative Analysis", ICLQ, vol. 38 (1989), p. 5). There is no room for other claims under the law of torts (Stoll, 259, believes differently) because the Convention, even if only indirectly, has given a qualification of its own, and the possibility of an alternative application of national law cannot be made dependent on the qualification of that legal institute in domestic law (also note 4.2. of Article 4). It is exactly such attempts which Article 7 is directed against. However, it is not excluded that product liability claims from non-personal injury, which cannot be regarded as breaches of contract, are judged under the national law of torts. Naturally, third parties can assert claims from product liability as a result of damages other than personal injury under the applicable rules directly against the responsible person (manufacturer, seller). Given the typical constellation of international sales contracts this will not be the standard case. A third party will, in most cases, prefer to address his immediate partner, inter alia, because the latter is more easily accessible for him (in general he is from the same country).

Insofar as a case of product liability causes personal injury and other damages, both aspects are to be judged invoking different rules. Such duplication is in no way unusual in regard to issues which are subject to unification of law. [page 47]

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Pace Law School Institute of International Commercial Law - Last updated August 5, 2002
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