Should the CISG contain a rule on the passing of property?
Max Wesiack [*]
The United Nations Convention on Contracts for the International Sale of Goods (CISG) was approved in 1980 at a diplomatic conference in Vienna. The convention was prepared by the U.N. Commission on International Trade Law (UNCITRAL) and came into force in 1988. Up to now, the CISG has been adopted by 63 countries, which account for over two-thirds of global trade. Its predecessors - the Uniform Law on the International Sale of Goods ("ULIS") and the Uniform Law on the Formation of Contracts for the International Sale of Goods ("ULF") signed at The Hague in 1964 - failed as only nine states gave force to these treaties. One main reason for their failure was that Western Europe's civil law traditions had a dominant influence on the treaties' drafting process. For the CISG a broader based participation in the drafting was possible due to the worldwide support to UNCITRAL as a U.N. body. In the end 62 countries from all over the world took part in the drafting. In order to reach an agreement many compromises between various legal traditions had to be made, inter alia between the civil and common law traditions. Some of these compromises have been heavily criticised. This essay will deal with two issues which arise from such compromises: First it will be analysed, whether the CISG is too much influenced by principles of contract law of civil law countries rather than principles of contract law in common law countries. It will then be examined, if the CISG should contain a rule on the passing of property.
B. TOO MUCH CIVIL LAW INFLUENCE?
The CISG would certainly be too much influenced by civil law principles of contract law, if common law countries could reasonably not agree to the convention; in this case the convention could not achieve its goal to unify international sales law. But the influence of civil law principles would be also too much, if it prevents the Convention from working successfully or the Convention would be more successful with a stronger influence from common law principles of contract law.
In order to answer these questions it seems useful to examine the general and specific criticism that was brought against the CISG and is related to the differences between common law and civil law.
I. Unbalanced Compromises?
During the drafting process various compromises were made between civil and common law traditions. For some of the more important compromises it shall now be analyzed, if they were unbalanced, favouring civil law countries.
1. Formation of Contract
A minor friction between common law and civil law countries concerned the moment, when an acceptance to an offer becomes effective. Under the common law mail-box rule a written acceptance is effective on its dispatch. The civil law receipt theory, however, requires the acceptance to actually reach the offeror before becoming effective. The risk of transportation (loss or delay) is put on the offeree, as he is in the better position to insure against the risks by selecting the medium. The CISG generally adopts the civil law approach in article 18 (2). Article 16 (1), however, preserves an important consequence of the mail-box rule: It governs the timeliness of revocation of the offer, as an offer may not be revoked if the revocation reaches the offeree after he has dispatched an acceptance. Overall, this can be seen as a well balanced compromise between the two approaches.
2. Role of Consideration
More friction between the two legal systems was raised by the concept of consideration. In common law countries a contract requires consideration to be enforceable, a concept unknown in civil law systems. This is especially important for the irrevocability of an offer.
a) Irrevocability of an Offer (with a Fixed Time for Acceptance)
Under common law an offer may be revoked before acceptance, since the offeree has not yet paid consideration, even if the offer states a fixed period for acceptance. Many civil law countries, however, treat offers as irrevocable for a reasonable time unless the offeror indicates the contrary. This shall give the offeree time to consider the offer and to respond and applies even more for offers explicitly containing a fixed period for acceptance.
Trying to balance out civil and common law doctrines, the CISG adopts the general common law principle of revocability in article 16 (1), but also states several restrictions. Most importantly, an offer cannot be revoked according to article 16 (2)(a), if it indicates "by stating a fixed time for acceptance or otherwise, that it is irrevocable". It is sometimes argued that - despite the precise wording - stating a fixed time would not make the offer irrevocable for a common lawyer. It would only mean a period to give an answer. Article 16 would therefore not contain a compromise, but only cover up the differences between the legal systems. Such a view would however render article 16 (2)(a) obsolete, since the termination of offers with a fixed time is explicitly dealt with in article18 (2). In accordance with the summary of UNCITRAL deliberations article 16 (2)(a) should therefore be regarded as a material compromise concerning the irrevocability of offers, which state a fixed time for acceptance.
b) Contract Modification, Article 29 CISG
The doctrine of consideration is also important for the formation and modification of the contract. Since the Convention does not explicitly mention the role of consideration, it has been argued that it can still be determined by national law due to article 4 (a). But such a view would not only heavily reduce the value of the Convention in terms of unifying the law on the formation of the contract. It would also be inconsistent with article 16 (2)(a) and article 29, which allows the modification of the contract "by the mere agreement of the parties". By not mentioning the doctrine of consideration, the Convention has therefore adopted the civil law approach. This is however of less significance than at seems: The initial sale contract itself always has "consideration" due to the exchanged promises to deliver and to pay. And concerning the modification of the contract the traditional common law rule has been softened, reducing differences between the two systems. Common law representatives therefore saw no need to object in this matter.
Another area of disparity between common law and civil law systems were remedies.
a) Concept of Fundamental Breach, Article 25
The definition of a fundamental breach is central to the range of remedies for either party under the CISG: A fundamental breach creates a right to terminate the contract according to articles 49 (1)(a) and 64 (1)(a) as well as the right to demand substitute goods for non-conforming goods under article 46 (2). Under common law a fundamental breach can be defined as a breach of a fundamental term. Article 25 however defines a breach as fundamental if "it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract". This civil law approach focuses on the seriousness of the breach and its results - rather than the nature of the term breached - abandoning the traditional common law distinction between conditions and warranties. Consequently every term under the CISG becomes an "innominate term", which if broken may result in the other party's right to terminate the contract.
This approach could be criticized by common lawyers for not providing enough certainty in a commercial contract. But it has to be perceived that the traditional common law distinction itself has been softened by "innominate" or "intermediate terms". Furthermore parties can still classify certain terms under the contract as "conditions", setting their own standards for a fundamental breach in accordance with article 6 CISG. Only if they fail to do so, article 25 will prevent the contract's avoidance in cases of minor breaches. This is consistent with the convention's general approach to uphold international sale contracts, which often include high transport and other transaction costs. Furthermore, uncertainty can be resolved using a Nachfrist notice under articles 49 (1)(b) and 64 (1)(b).
b) Specific Performance
A particular sensitive issue concerned the availability of specific performance as a remedy. In civil law countries the primary remedy for a breach of contract is the non-breaching party's right to compel specific performance. The common law, on the other hand, traditionally relies on damages as the prevailing remedy. Specific performance is only available, "if the damages are inadequate, such as where the subject matter is unique or irreplaceable". In accordance with the civil law approach articles 46 (1) and 62 CISG express the parties' right to require each others specific performance. The position of the common law, however, is preserved by article 28. It enables common law courts to limit orders for specific performance in accordance to their traditional approach. As a result each court may apply its own law on this matter. This is a clear compromise at the cost of impairing the unification of law. Nowadays, a superior and more harmonious approach can be found in Section 2 of Chapter 7 of the UNIDROIT-principles. It focuses more on the practical outcome of cases than on traditional doctrines, providing a rule close to both existing common law and civil law.
c) Price Reduction
In its article 50 the Convention provides another civil law remedy, unknown to common law. It entitles the buyer to unilaterally reduce the price for non-conforming goods according to the proportion of the deficiency. If the price has already been paid, the reduction can be reclaimed. Under common law the buyer is limited to damages in these cases. In many civil law countries - on the other hand - damages are not available, since they are limited to cases of fault or fraud, creating a need for this remedy.
Common law delegates agreed with the adoption of this "self help remedy", because its significance under the Convention is fairly small. In the majority of cases it will be more beneficial to claim damages. Slim exceptions are situations, where the good's price has dropped between the conclusion of the contract and delivery or the mere cases of force majeure (article 79). Furthermore, it was ensured that this remedy would not impair the buyer's duty to mitigate damages.
Another civil law remedy that was adopted in the Convention is the German Nachfrist notice. According to articles 47 (1) and 63 (1), each party may - on delay of the other - "fix an additional period of time of reasonable length for performance" of the other party's obligations. If the seller does not deliver so far undelivered goods, or the buyer does not pay or take delivery within this additional time, articles 49 (1)(b) and 64 (1)(b) give the other party the right to declare the contract avoided, even if the breach was not fundamental in terms of article 25. This leads to a clarification of the parties' positions early on and also avoids the difficulty of proving the seriousness of the breach. Because of these practical implications the Nachfrist notice was approved by common law countries without much opposition.
4. Good faith, Article 7 (1)
Another sensitive issue between the two jurisdictions concerned the role of good faith. While the approach to good faith is not homogenous in either civil law or common law countries, the former have a much broader conception of good faith. In contrast to common law systems good faith is not limited to performance of completed agreements in civil law countries, but also affects pre-contractual bargaining as well as the formation and interpretation of contracts. While civil law delegates argued for a good faith clause governing the interpretation of the contract, common law countries were opposing any explicit reference in the text. With neither side willing to surrender its position, a compromise was reached by including good faith in article 7 (1), a provisions about the interpretation of the Convention. As a result there is a large degree of uncertainty about the final result, which certainly affects uniformity.
It has been shown that some compromises were well balanced (formation of contract, irrevocability). Some produced rules that did not significantly differ in their results from the common law, even if the common law principle was not incorporated in the convention (contract modification). Other "compromises" could not bridge the gap between the two legal traditions, impairing uniformity (specific performance, good faith). This is however not caused by civil law principles, but by the mere lack of agreement. The adoption of two civil law remedies (price reduction and Nachfrist) creates a certain imbalance. But these rules were either seen as practical or of not much significance. The concept of fundamental breach is to some degree different, but reflects the Convention's general approach to uphold the contract. Overall, it can therefore be concluded that there is no unreasonable imbalance between common law and civil law traditions.
II. General Criticism
The CISG also had to face some more general criticism.
1. Uncertainty - Drafting Style
The Convention has been criticized for ambiguity in its text, leading to uncertainty in the law. Such ambiguity has to some degree been caused by the difficulty to reach a compromise at the Diplomatic Conference. As shown above, there have sometimes been verbal compromises without solving the matter itself, with the role of good faith being an example. But this criticism also concerns the general drafting style of the Convention. Drafting styles once again differ between common law and civil law traditions.
Generally speaking, the common law is commercially orientated and favours objective approaches that create certainty. Civil law traditions are, however, primarily concerned about justice in individual cases. They thus prefer subjective approaches that provide the needed flexibility, but - on the down side - create some uncertainty. There is, in other words, a trade-off between justice and certainty and the two systems have set different priorities. This also explains the different levels of generality of legal rules in both systems: Common law systems prefer concrete solutions to particular problems, while civil law countries favour to proceed from broad principles. In encouraging the development and application of general principles the Convention has certainly taken a civil law approach. However, this approach should not simply be criticized for being different to the common law. The decisive question is, whether such broader principles really lead to more uncertainty in practice. This cannot be answered without examining the possibility of a uniform interpretation and application of the Convention. Doing that however, it has to be kept in mind that some inconsistencies might have been caused from the lack of finding an agreement rather than the civil law drafting style itself. As a matter of fact, the language of the Convention "is not typical of the concise style of draftsmanship of the French-inspired civil codes".
2. Uniform Interpretation
It has been argued that "international situation does not possess the coherent background for interpretation", so that "elastic words are undesirable in international enactments even more than in national enactments". This raises the question if the convention can be interpreted uniformly, which is in fact the key to its success. For this purpose, uniformity can be defined as allowing a level of imperfection that does not encourage "forum shopping". According to article 7 (1) CISG the Convention has to be interpreted with regard "to its international character and to the need to promote uniformity in its application". This task is certainly not easy for legal writers and practitioners. The biggest risk for uniformity is that the Convention is interpreted in a way that preserves the domestic rules of each interpreting lawyer. This is especially crucial in the areas of the Convention's sphere of application and gap-filling (article 7 (2)). Such "homeward trend" can have various reasons. It can be caused by the similarity of a concept or term with a domestic legal tradition. An example for such a "false friend" (faux ami) is the "German" Nachfrist rule in article 47. Even more importantly, the same risk exists with the general methods of interpretation. Although the CISG has been transformed into domestic law, the Convention has to be interpreted according to international - rather than domestic - techniques. In contrast to the traditional common law tendency to interpret legislation narrowly, the Convention should therefore be interpreted broadly, giving more weight to purposes and policies underlying particular provisions and the convention as a whole. Furthermore, the "homeward trend" can also be caused by the vagueness and flexibility of specific terms, properties often associated with civil law traditions. Although there is no superior court as in domestic systems that can settle uncertainties fairly easily and quickly, uniformity can still be achieved. If legal literature and practice in other countries is closely observed and respected as equivalent, uniform and certain solutions can develop over time. With more certainty and uniformity established, the convention shall become even more accepted and less often excluded by parties. Uniformity can however only become reality, if legal writers and practitioners are indeed willing to part from their legal traditions and accept the international character of the Convention.
It has been shown that the compromises in the drafting process have not resulted in an unreasonable imbalance between common law and civil law traditions. It can therefore not be found that common law countries can reasonably not agree to the CISG. This is supported by the fact that common law countries like the U.S., Australia and New Zealand have decided to adopt the convention. Great Britain has its particular reasons for not signing the convention so far. Furthermore it has also been shown that - despite difficulties - a uniform interpretation of the convention is possible. Because of this the uncertainties and ambiguities, which certainly exist in the convention, can be settled over time. Thus, civil law principles do not prevent the convention from working successful. Finally it is hard to see, why the Convention should be more successful with a stronger influence from common law principles of contract law. One might argue that there would be more certainty of the law from the start. But it has to be realized that flexibility makes is possible to find justice in an individual cases. This certainly is an important value as well that can ensure the Convention's success in the long run.
C. RULE ON THE PASSING OF PROPERTY
Article 4 (b) of the Convention makes it clear that it does not govern the passing of property in the goods sold. In accordance with article 7 (2) CISG questions concerning this matter therefore have to be determined by the "law applicable by virtue of the rules of private international law" of the forum. In principle most countries pursue a lex rei sitae approach, which leads to the domestic law of the country in whose territory the goods were at the relevant time. But the laws concerning the passing of property differ significantly among countries. This impairs uniformity and makes it difficult to determine the governing law. These problems are further increased by the fact that the rules of private international law vary in details as well. There are for example different rules for goods in transit (res in transitu) amongst countries. Depending where the case is heard, a court may apply the law of the origin or the law of the destination. This uncertainty about the applicable law is likely to have a negative effect on international trade. It could therefore be beneficiary to include a rule on the passing of property in the Vienna Convention on International Sale of Goods.
When the Convention was drafted a rule on passing of property was not included due to two material reasons. First it was not regarded possible to unify the law on this point. But it also was not regarded necessary, since the Convention contains rules on several issues that are - at least in some legal systems - connected to the passing of property. These two reasons shall now be analyzed.
1. Related Issues Governed by the Convention
The Convention provides a number of rules that - under some domestic systems - are linked to the passing of property and more generally the "property" concept: These rules deal with the seller's obligation to deliver goods free from any third-party rights or claims (articles 41 and 42 CISG), the buyer's obligation to pay the price (article 53), the passing of risk of the good's loss or damage (articles 66 - 70) and the obligation to preserve the goods (articles 85 - 88). Due to these rules it is only important to examine the passing of property, when determining the buyer's and seller's rights and obligations against third parties and their effects on the sales contract. The primary relation between buyer and seller is however sufficiently solved the Convention, making it needless to deal with the passing of the property in many cases. This significantly reduces the disadvantages caused by the lack of a rule about the transfer of property in the Convention.
2. Possibility to Unify the Law
Rules on the passing of property vary significantly among countries. A particular obstacle for harmonization comes from the different approaches towards possession as a determinant of property rights. In a number of countries property passes when the sales contract is concluded, even if no delivery has been made. In other countries however it passes at a later time such as the time of the good's delivery to the buyer. These differences shall be examined for some representative countries in more detail.
Under English common law the time of the transfer of property can be determined by the parties. But without such agreement, the property passes at the time of the contract's conclusion (solo consensu). The same rules apply in other common law jurisdictions as well, such as in New South Wales (Australia). Under French law ownership generally passes at the conclusion of the contract as well (article 1583 Code civil). This is also the law in Louisiana (USA).
According to German law, on the other hand, the passing of property requires a separate real contract for the transfer of property (Einigung) as well as - at least in principle - the delivery of the goods (Übergabe; § 929 of the German Civil Code (BGB)). Since the goods are generally not delivered before the Einigung, the transfer of property usually takes place at the time of delivery. Due to the requirement of a second, separate contract - concerned only about the transfer of the goods - no enforceable sales contract is needed for the transfer of property. The invalidity of the sales contract does therefore not directly affect the passing of property (Abstraktionsprinzip).
The Dutch law takes a somewhat mediate approach. According to article 3:84 of the New Dutch Civil Code the property usually passes when the goods have been handed over (levering) and the levering was based on a valid title, such as a sales contract. Similarly to German law property therefore passes at the time of delivery. In contrast to German law however, property cannot be passed if the title is void. Under this causal system an iusta causa is a condition for the transfer of property. This connection to the sales contract is more similar to the English and French approach. A similar approach to the Dutch can also be found in Swiss law.
Taking especially the differences between English, French and German law into account it is understandable, why they seemed impossible to overcome in the convention's drafting process. Nevertheless is has been expressly stated that uniformity in the law of property transfer can be achieved. These proposals suggest the adoption of the delivery principle (Traditionsprinzip). This principle is common to many legal systems and is also laid down in article 69 (1) CISG, which deals with the related issue of the passing of risk. Although such unification certainly is not impossible, it is not an easy task either, as there are other differences that need to be solved as well. For example, common law and civil law systems also differ significantly in their approaches towards the effects of an unauthorized disposition by a party, who is in possession of the good without owning it. Under common law the buyer can generally acquire no better title than the seller had (nemo dat quod non habet). In civil law countries however, a seller in good faith can acquire property (en fait de meubles la possession vaut titre). Although the systems have moved towards one another significant differences remain. Furthermore it has to be realized that conflicting claims to tangible movables also often raise issues about the means of taking security over sold goods, which differ significantly amongst countries as well. It is, for example, not unusual for securities to vanish as soon as the goods pass the border, because they often are not recognised in the country of destination. Thus, harmonizing the rules on the passing of property in sales transactions can not be successful without touching much broader and very time-consuming issues.
It would certainly be beneficiary for international trade, if a rule on passing of property would be included in the CISG. Although there are significant differences the between legal systems, a harmonization cannot be ruled out. Due to the scope of issues involved, it will however take quite some time to achieve. But even without such a rule, the convention has achieved a large degree of harmonization, as many important questions have been separated from the concept of property and are governed by the convention.
After examining the general and specific criticism brought against the convention's balance between common law and civil law traditions it cannot be found that the CISG is too much influenced by principles of contract law of civil law countries rather than principles of contract law in common law countries. A rule on passing of property should be included in the convention as soon as harmonization in that field has sufficiently progressed, which is likely to take some time.
|Alejandro Garro, "Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods", 23 International Lawyer (1989) 443 - 483, also published at <http://www.cisg.law.pace.edu/cisg/biblio/garro1.html>.|
|Alison Williams, "Forecasting the Potential Impact of the Vienna Sales Convention |
on International Sales Law in the United Kingdom", Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001) 9-57, also published at <http://www.cisg.law.pace.edu/cisg/biblio/williams.html>.
|Arthur Rosett, "Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods", 45 Ohio State Law Journal (1984) 265-305, also published at <http://www.cisg.law.pace.edu/cisg/biblio/rossett.html>.|
|Arthur Rosett, "UNIDROIT Principles and Harmonization of International Commercial Law: Focus on Chapter Seven" (1997), published at <http://www.unidroit.org/english/publications/review/articles/1997-3.htm>.|
|Barry Nicholas, "The United Kingdom and the Vienna Sales Convention: Another Case of Splendid Isolation?", Rome: Centro di Studi e Richerche di Diritto Comparato e Straniero (1993), also published at <http://soi.cnr.it/~crdcs/crdcs/nicholas.htm>.|
|Camilla Basch Andersen, "Uniformity in the CISG in the First Decade of its Application", in Ian Fletcher, Loukas Mistelis, Marise Cremona (Eds.) Foundations and Perspectives of International Trade Law, (Sweet and Maxwell Limited, 2001) pp. 289-297.|
|Evelien Visser, "Favor Emptoris: Does the CISG Favor the Buyer?", UMKC [University of Missouri, Kansas City] Law Review (1998) 77-92, also published at <http://www.cisg.law.pace.edu/cisg/biblio/Visser1.html>.|
|Jacob Ziegel and Claude Samson, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods" (1981), published at <http://www.cisg.law.pace.edu/cisg/wais/db/articles/english2.html>; the relevant passage is also published at <http://www.cisg.law.pace.edu/cisg/text/ziegel4.html>.|
|Royston Goode, "Reflections on the Harmonisation of Commercial Law", Uniform Law Review (1999-I) 54-74, the relevant passage is also published at <http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-04.html>.|
|Sara Zwart, "The New International Law of Sales: A Marriage Between Socialist, Third World, Common, and Civil Law Principles", 13 North Carolina Journal of International Law and Commercial Regulation (1988) 109-128, also published at <http://www.cisg.law.pace.edu/cisg/biblio/Zwart.html>.|
|Troy Keily, "Harmonisation and the United Nations Convention on Contracts for the International Sale of Goods", Nordic Journal of Commercial Law of the University of Turku, Finland, Issue 2003 # 1, also published at <http://www.njcl.fi/1_2003/article3.pdf> and <http://www.cisg.law.pace.edu/cisg/biblio/keily3.html>.|
|Adams v Lindsell, 106 Eng. Rep. 250 (KB 1818).|
|Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd  2 QB 26.|
|Commentary on the Draft Convention on Contracts for the International Sale of Goods prepared by the Secretariat, ("Secretariat Commentary"), UN DOC. A/CONF. 97/5, published at <http://www.cisg-online.ch/cisg/materials-commentary.html>; the relevant passage is also published at <http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-04.html>.|
|John Honnold, Uniform law for international sales under the 1980 United Nations convention (3rd ed, 1999).|
|Peter Schlechtriem, Commentary on the UN Convention on the International Sale of Goods (CISG), translated by Geoffrey Thomas (2nd ed (in translation), 1998).|
|Internet Documents (as of Wednesday, 9 June 2004):|
|European Commission, A More Coherent European Contract Law - Action Plan (Commission Communication 2003/C63/01), <http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/c_063/c_06320030315en00010044.pdf>.|
|Institute of International Commercial Law at Pace University Law School, <http://www.cisg.law.pace.edu/cisg/cisgintro.html> and <http://www.cisg.law.pace.edu/cisg/countries/cntries.html>.|
|John Mo, International Commercial Law (3rd ed, 2003).|
* The author studied law at the University of Hamburg (Germany). After passing his first state examination he is now doing his Master of International Business and Law at the University of Sydney (Australia). This paper was submitted as part of this degree.
1. Alejandro Garro; John Mo 2.1.
2. Sara Zwart; Troy Keily at 4.
3. Troy Keily at 2.
4. Institute of International Commercial Law at Pace University Law School, <http://www.cisg.law.pace.edu/cisg/countries/cntries.html>.
5. Institute of International Commercial Law at Pace University Law School, <http://www.cisg.law.pace.edu/cisg/cisgintro.html>.
6. Troy Keily at 3.
7. Troy Keily at 3; Alejandro Garro.
8. Sara Zwart.
9. Troy Keily at 4; Arthur Rosett (1984).
10. Alejandro Garro.
11. Sara Zwart.
12. Adams v Lindsell, 106 Eng. Rep. 250 (KB 1818); Troy Keily at 5; Sara Zwart.
13. Troy Keily at 5.
14. Sara Zwart.
15. Sara Zwart. Article18 (3) states an exception from the receipt theory due to the virtue of the offer or the parties' practice.
16. Alejandro Garro.
17. Alejandro Garro; Alison Williams.
18. Troy Keily at 5.
19. Alejandro Garro; Sara Zwart.
20. Alejandro Garro.
21. Alejandro Garro.
22. Sara Zwart.
23. Compare Alejandro Garro.
24. Alejandro Garro.
25. Compare Alejandro Garro.
26. Arthur Rosett (1984).
27. Compare Sara Zwart and Alejandro Garro.
28. Troy Keily at 5 footnote 18.
29. Alejandro Garro.
30. Sara Zwart; Alejandro Garro.
31. Alejandro Garro.
32. Alison Williams.
33. John Mo 2.66.
34. John Mo 2.68 and 2.70.
35. Alison Williams.
36. Alison Williams.
37. Compare Alison Williams.
38. Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd  2 QB 26.
39. Alison Williams.
40. Alison Williams.
41. Alison Williams. Another example is the limited scope of article 79 CISG.
42. Compare Sara Zwart.
43. Compare Sara Zwart.
44. Alison Williams; Troy Keily at 10.
45. Alison Williams; Sara Zwart; Troy Keily at 10.
46. Sara Zwart.
47. Sara Zwart; Alejandro Garro.
48. Alison Williams.
49. Alejandro Garro.
50. Troy Keily at 10.
51. Alejandro Garro; Troy Keily at 10.
52. Arthur Rosett (1997).
53. Arthur Rosett (1997).
54. Alison Williams; Sara Zwart.
55. Sara Zwart; Alejandro Garro.
56. Alison Williams.
57. Sara Zwart.
58. Sara Zwart.
59. Sara Zwart; Alison Williams.
60. Alison Williams.
61. Alison Williams.
62. Alison Williams.
63. Sara Zwart.
64. Sara Zwart.
65. Alejandro Garro.
66. Sara Zwart; Alison Williams.
67. Sara Zwart.
68. Sara Zwart; Alejandro Garro.
69. Troy Keily at 11.
70. Alejandro Garro.
71. Arthur Rosett (1984); Barry Nicholas at 5.
72. Alejandro Garro; Arthur Rosett (1984).
73. Troy Keily at 11; Alejandro Garro.
74. Troy Keily at 11; Barry Nicholas at 8.
75. Troy Keily at 11.
76. Compare Alejandro Garro; Barry Nicholas at 8.
77. Compare Alison Williams.
78. Alison Williams.
79. Sara Zwart. Also see Arthur Rosett (1984) on article 8.
80. Barry Nicholas at 5.
81. Compare Barry Nicholas at 5; Alison Williams.
82. Compare Barry Nicholas at 5.
83. Barry Nicholas at 6.
84. Alison Williams; compare Barry Nicholas at 7.
85. Alejandro Garro.
86. Arthur Rosett (1984).
87. Troy Keily at 14; Peter Schlechtriem Intro para. III.
88. Camilla Basch Andersen at 293.
89. Peter Schlechtriem Intro para. III.
90. Camilla Basch Andersen at 294-5.
91. Peter Schlechtriem Intro para. III; Camilla Basch Andersen at 294-5.
92. Camilla Basch Andersen at 294.
93. Troy Keily at 15-6.
94. Troy Keily at 16.
95. Camilla Basch Andersen at 294-5.
96. Compare Troy Keily at 17.
97. Compare Peter Schlechtriem Intro para. III.
98. For this problem see Alison Williams.
99. Institute of International Commercial Law at Pace University Law School, http://www.cisg.law.pace.edu/cisg/countries/cntries.html .
100. See Alison Williams.
101. Secretariat Commentary art. 4 para. 4.
102. Peter Schlechtriem/ Herber art. 4 note 18; Evelien Visser.
103. Compare European Commission para. 41.
104. Compare Evelien Visser.
105. See for example Article 101 of the Swiss Private International Law Code (IPRG) and Article 1206, 2 of the Russian Civil Code. The German law, on the other hand, has no special provision on this matter, compare Article 43- 46 EGBGB.
106. Secretariat Commentary art. 4 para. 4.
107. Secretariat Commentary art. 4 para. 4.
108. John Honnold at 70; Secretariat Commentary art. 4 para. 4.
109. Jacob Ziegel and Claude Samson art. 4 para 4.
110. Royston Goode at 61-2.
111. Secretariat Commentary art. 4 para. 4.
112. Secretariat Commentary art. 4 para. 4.
113. Evelien Visser.
114. Peter Schlechtriem/ Herber art. 4 note 18; Evelien Visser.
115. See sections 22 (1) and 23 rule 1 Sale of Goods Act 1923 (NSW).
116. Evelien Visser; Peter Schlechtriem/ Herber art. 4 note 18.
117. Evelien Visser.
118. Peter Schlechtriem/ Herber art. 4 note 18; Evelien Visser.
119. Compare Evelien Visser.
120. Evelien Visser.
121. Compare Evelien Visser.
122. Evelien Visser footnote 62.
123. Evelien Visser footnote 71.
124. Evelien Visser footnote 71.
125. Evelien Visser footnote 71.
126. Peter Schlechtriem/ Herber art. 4 note 18.
127. Compare Evelien Visser.
128. Compare Evelien Visser.
129. Compare Evelien Visser.
130. Royston Goode at 61-2.
131. Royston Goode at 61-2. See for example section 26 (1) Sale of Goods Act 1923 (NSW).
132. Royston Goode at 61-2. See for example § 932 of the German Civil Code (BGB).
133. Royston Goode at 61-2.
134. Compare Royston Goode at 61-2.
135. Peter Schlechtriem/ Herber art. 4 note 18; European Commission para. 43-5.
136. European Commission para. 43-5.
137. Royston Goode at 61-2.