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Art. 2 |
24. The text of article 2, as adopted by the Working Group on the International Sale of Goods, is as follows:
"This Convention does not apply to sales:
"(a) Of goods bought for personal, family or household use, unless the seller, at the time of the
conclusion of the contract, did not know and had no reason to know that the goods were bought
for any such use;
"(b) By auction;
"(c) On execution or otherwise by authority of law;
"(d) Of stocks, shares, investment securities, negotiable instruments or money;
"(e) Of ships, vessels or aircraft;
"(f) Of electricity."
Subparagraph (a)
Exclusion of consumer sales
25. The Committee was agreed that consumer sales should be excluded from the scope of the Convention on the ground that such transactions were, in a number of countries, subject to special laws and regulations designed to protect consumers. Such an exclusion would not significantly limit the scope of application since consumer sales would only in relatively few cases qualify as an international sale within the meaning of the Convention.
26. The Committee considered a proposal that would delete the words "unless the seller, at the time of the conclusion of the contract, did not know and had no reason to know that the goods were bought for any such use." The proposal was based on the ground that these words, which do not appear in the corresponding provision (article 4(a)) of the Convention on the Limitation Period, introduced a subjective element in that it depended on the subjective view of the seller whether or not the sale was a consumer sale and, consequently, whether or not the Convention would apply.
27. The Committee was of the view that the knowledge of the seller that the contract of sale was one falling within the scope of the Convention was important. In the framework of the Convention on the Limitation Period, the parties had ample time and opportunity to establish whether the sale was a consumer sale or a commercial sale and, accordingly, to determine whether the limitation of legal proceedings and the prescription of the parties' rights against each other would, or would not, be governed by that Convention. The Committee therefore concluded that the present wording of subparagraph (a) should be retained.
Exclusion of sales by auction, on execution or otherwise by authority of law, and of stocks, shares, investment securities, negotiable instruments or money
28. There were no proposals made to amend or delete any of the provisions of subparagraphs (b), (c) or (d) and the Committee recommends that these subparagraphs should be retained In their present wording.
Exclusion of sales of ships, vessels or aircraft
29. Opinions were divided on the question whether the sale of ships, vessels and aircraft should, as under the present text. be excluded from the scope of application of the Convention.
30. Under one view, these sales should fall within the scope of the Convention because:
(a) The ground invoked for exclusion of these sales, namely, that vessels and aircraft are subject
to special registration requirements, was not convincing since these requirements had little to do
with the relations between buyer and seller. In this connexion, it was noted that the sale of pleasure
craft had, in recent years, gained in importance on the international level and could, from a legal
point of view, be assimilated to the sale of motor-vehicles which, though subject to registration, did
fall within the scope of the Convention;
(b) The sale of large vessels and aircraft was usually made subject to special conditions of sale and
would, under article 5, to that extent be taken out of the Convention.
31. Under another view, the exclusion of sales of ships, vessels and aircraft was justified on the ground that:
(a) In many legal systems, ships and aircraft, once registered, are assimilated to immovables;
(b) Article 4(e) of the Convention on the Limitation Period excludes such sales from the scope of
the Convention and a proposal made at the Conference of Plenipotentiaries at which that
Convention was adopted to include such sales had been rejected.
32. The Committee, after deliberation, concluded that the issue could not be solved by a compromise text based on consensus. It therefore recommends that the Commission adopt the present text of subparagraph (e).
Exclusion of sales of electricity
33. The Committee considered two proposals:
(a) That subparagraph (f) be deleted so that the sale of electricity would be within the scope of the Convention; and
(b) To exclude from the scope of the Convention also the sale of gas.
34. The Committee did not retain the proposal for deletion of subparagraph (f). It noted that, in many legal systems, electricity was not considered to be a corporeal movable and that, consequently, the deletion of the subparagraph would not necessarily bring the sale of electricity within the Convention but might, on the contrary, give rise to uncertainty.
35. The Committee also did not accept the proposal that the sale of gas be assimilated to the sale of electricity and thus be excluded from the scope of the Convention. It was noted that since a considerable number of both simple and compound bodies existed in either gaseous, liquid or solid state, the sale of these goods would be excluded under the proposal or, at least, present borderline cases. The Committee was of the view that the drawing up of a list of all borderline classes would be a lengthy process and would be inadvisable. In cases where the application of the Convention to the sale of gas was not desired, the parties could, under article 5, vary the effect of any of its provisions. The Committee was therefore agreed to maintain the present wording of subparagraph (f).
Decision
36. The Committee concludes that no change of substance is called for in respect of article 2. It therefore recommends that the Commission should adopt the following text:
"Article 2
"This Convention does not apply to sales:
"(a) Of goods bought for personal, family or household use, unless the seller, at the time of the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;
"(b) By auction;
"(c) On execution or otherwise by authority of law;
"(d) Of stocks, shares, investment securities, negotiable instruments or money;
"(e) Of ships, vessels or aircraft;
"(f) Of electricity." [page 27]
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Institute of International Commercial Law - Last updated July 13, 2007