Go to Database Directory|| See also UNCITRAL Digest Cases + Added Cases
Search the entire CISG Database (case data + other data)

2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 4 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
Issues dealt with by the Convention
Validity of the contract and of usages
Effect on the property in the goods sold
Other issues not dealt with in the Convention]

Article 4

This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with:
(a) The validity of the contract or of any of its provisions or of any usage;
(b) The effect which the contract may have on the property in the goods sold.

Overview

1. The first sentence of article 4 lists matters to which the Convention's provisions prevail over those of domestic law, i.e., the formation of contract and the rights and obligations of the parties.[1] The second sentence contains a nonexhaustive list of issues with which, except where expressly provided otherwise, the Convention is not concerned, namely, the validity of the contract or any of its provisions or any usage, as well as the effect which the contract may have on the property in the goods sold. The issues referred to in the second part of article 4 were excluded from the Convention because dealing with them would have delayed the conclusion of the Convention.[2]

2. Some courts state that the Convention is exhaustive.[3] Still, there are matters not governed by the Convention. These matters are to be settled either in conformity with the applicable uniform rules [4] or the applicable domestic law to be identified on the basis of the rules of private international law of the forum.[5]

Issues dealt with by the Convention

3. As far as formation of the contract is concerned, the Convention merely governs the objective requirements for concluding the contract.[6] The issue of whether a contract is validly formed, however, is subject to the applicable national rules, except for those issues as to which the Convention provides exhaustive rules.[7] Thus, issues such as capacity to contract [8] and the consequences of mistake,[9] duress and fraud [10] are left to the applicable domestic law,[11] as are those of misrepresentation [12] and negligence.[13] Where, however, one party errs concerning the quality of the goods to be delivered or the solvency of the other party, the rules of the otherwise applicable law give way to those of the Convention, since the Convention exhaustively deals with those matters.

4. Although article 4 does not expressly mention the issue as one governed by the Convention, some courts [14] (albeit not all) [15] have concluded that burden of proof questions come within the scope of the Convention.[16] This view is based on the fact that the Convention includes at least one provision, article 79, which expressly deals with the burden of proof.[17] Outside of situations governed by article 79 or any other provision that expressly addresses the issue, the issue is therefore governed by the Convention albeit not expressly settled by it. Thus, article 7(2) requires the question to be resolved in conformity with the general principles on which the Convention is based.[18] The following general principles for allocating the burden of proof have been identified: the party that wants to derive beneficial legal consequences from a legal provision has to prove the existence of the factual prerequisites of the provision;[19] the party claiming an exception has to prove the factual prerequisites of that exception.[20]

5. The foregoing principles have led courts to conclude that the party claiming that a contract is not governed by the Convention pursuant to its article 3(2) bears the burden of proof.[21]

6. The aforementioned general principles have led courts also to state that a buyer who asserts that goods are nonconforming has the burden of proving the non-conformity [22] as well as the existence of a proper notice of non-conformity.[23] Similarly, various courts have decided that the buyer had to pay the price and was not entitled to damages or to avoidance of the contract for non-conformity of the goods under article 35 because the buyer had not proved the nonconformity.[24] In one case, a court decided that the buyer had lost the right to rely upon a non-conformity, because it did not prove that it gave timely notice to the seller.[25]

7. The aforementioned general principles have been used to allocate the burden of proof under article 42 of the CISG. Article 42 provides that the seller must deliver goods which are free from any third-party right or claim based on industrial property or other intellectual property, of which the seller knew or could not have been unaware. Several courts held that the buyer had the burden of proving that the seller knew or could not have been unaware of the third-party industrial or intellectual property rights.[26]

8. The Convention's general principles on burden of proof were also the basis of several decisions dealing with issues on damages. One court stated that "according to the Convention the damaged buyer has the burden of proving the objective prerequisites of his claim for damages. Thus, he has to prove the damage, the causal link between the breach of contract and the damage as well as the foreseeability of the loss".[27] Other cases have stated more generally that the party claiming damages has to prove the losses suffered.[28] It is not clear, however, whether the Convention itself establishes the degree of evidence necessary to prove the damages or whether that degree is to be derived from the lex fori.[29]

Validity of the contract and of usages

9. Although the Convention generally leaves issues concerning the validity of the contract, defined as "any issue by which the 'domestic law would render the contract void, voidable, unenforceable',"[30] and of individual contract clauses,[31] such as a disclaimer,[32] a liquidated damages clause [33] or a non-competition clause [34] to the applicable national law,[35] in at least one respect the Convention's provisions may contradict domestic validity rules.[36] Article 11 provides that a contract for the international sale of goods need not be concluded in or evidenced by writing and is not subject to any other requirement of form; in some legal systems form requirements for a contract for the sale of goods are considered to be a matter of contractual validity.[37] For the question whether domestic law requirements of "consideration" or "causa" are matters of "validity" beyond the scope of the Convention, see paragraph 10 of the Digest for Part II of the Convention.

10. The issue of whether a contract is validly concluded by a third person acting on behalf of one of the parties is left to the applicable national law,[38] since agency is not governed by the Convention.[39] The same is true for the validity of standard contract terms,[40] although the issue of whether they become part of the contractual agreement is to be determined pursuant to the rules of the CISG,[41] at least according to some courts.[42]

11. The validity of usages -- which is not dealt with by the Convention,[43] but is left to the applicable domestic law [44] -- must be distinguished from the question of how usages are defined, under what circumstances they bind the parties, and what their relationship is with the rules set forth in the Convention. The latter issues are dealt with in article 9.[45]

Effect on the property in the goods sold

12. The Convention makes clear that it does not govern the passing of the property in the goods sold.[46] During the drafting process, it was deemed impossible to unify the rules on this point.[47] Thus, the effect of a sales contract on the property in the goods is left to the applicable national law, to be determined by the rules of private international law of the forum.

13. The Convention does not govern the validity of a retention of title clause,[48] nor does it deal with the right of retention.[49]

Other issues not dealt with by the Convention

14. The Convention itself expressly lists several examples of issues with which it is not concerned.[50] There are many other issues not governed by the Convention. Courts have identified the following additional issues as beyond the Convention's scope of application: the validity of a choice of forum clause,[51] the validity (and scope) of a penalty clause,[52] the validity of a settlement agreement,[53] an assignment of receivables,[54] assignment of a contract,[55] set-off [56] (at least where the receivables do not all arise from contracts governed by the Convention),[57] the theory of imprévision known in Belgium law,[58] the statute of limitations,[59] the issue of whether a court has jurisdiction [60] and, generally, any other issue of procedural law,[61] an assumption of debts,[62] an acknowledgement of debts,[63] the effects of the contract on third parties [64] as well as the issue of whether one is jointly liable.[65] According to some courts, the Convention does not deal with tort claims;[66]one court expressly stated that a "tortious interference with business expectancy claim is not pre-empted by the CISG".[67] That same court held that the Convention pre-empted unjust enrichment [68] and restitution claims.[69] According to a different court, the admissibility of claims based on unjust enrichment is left to the applicable domestic law.[70]

15. Some courts have found that estoppel issues are not governed by the Convention,[71] but other courts have concluded that estoppel should be regarded as a general principle of the Convention.[72] A court has also ruled that the question of priority rights in the goods as between the seller and a third party creditor of the buyer is, under article 4, beyond the scope of the Convention and is governed instead by applicable national law, under which the third party creditor prevailed.[73]

16. According to some courts, the issue of the currency of payment is not governed by the Convention and, in the absence of a choice by the parties,[74] is left to applicable domestic law.[75] One court found that, absent an agreement of the parties on the matter, the currency of payment is the currency of the place of payment as determined by article 57.[76]

17. One court expressly stated that the Convention does not identify the place of conclusion of the contract.[77]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

In addition, this presentation introduces each section of the UNCITRAL Digest with a Google search button. This is to help you access doctrine (relevant material from the over 1,400 commentaries, monographs and books on the CISG and related subjects that we present on this database) as well as the texts of the cases that UNCITRAL cites in its Digests and that we present in our updates to UNCITRAL's Digests.

1. For mere references to the text of article 4(1) in case law, see [UNITED STATES District Court, Eastern District of California 21 January 2010]; [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; [SLOVAKIA District Court in Nitra 29 May 2008]; [UNITED STATES District Court, Southern District of Florida 19 May 2008]; CLOUT case No. 490 [FRANCE Cour d'appel de Paris 10 September 2003]; CLOUT case No. 241 [FRANCE Cour de Cassation 5 January 1999].

2. See Report of the Working Group on the International Sale of Goods on the work of its ninth session (Geneva, 19-30 September 1977) (A/CN.9/142), reproduced in the UNCITRAL Yearbook, 1978, at p. 65, paragraphs 48-51, 66, 69.

3. [SWITZERLAND Bundesgericht 15 September 2000].

4. See CLOUT case No. 202 [FRANCE Cour d'appel de Grenoble 13 September 1995] (stating that the assignment of receivables is not governed by the Convention and applying the 1988 UNIDROIT Convention on International Factoring as the assignment fell under its sphere of application).

5. See [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993].

6. See CLOUT case No. 95 [SWITZERLAND Zivilgericht Basel-Stadt 21 December 1992] (see full text of the decision).

7. See CLOUT case No. 47 [GERMANY Landgericht Aachen 14 May 1993] (see full text of the decision). See also paragraph 8 of the Digest for Part II of the Convention.

8. See CLOUT case No. 907 [SWITZERLAND Tribunal Cantonal du Valais 27 May 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 9 June 2004]; CLOUT case No. 985 [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2002 (Arbitral award No. CISG/2002/19)]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; CLOUT case No. 5 [GERMANY Landgericht Hamburg 26 September 1990].

9. See [GERMANY Bundesgerichtshof 27 November 2007]; CLOUT case No. 877 [SWITZERLAND Bundesgericht 22 December 2000]; [SWITZERLAND Bundesgericht 11 December 2000]; CLOUT case No. 426 [AUSTRIA Oberster Gerichtshof 13 April 2000].

10. [UNITED STATES District Court, Eastern District of Arkansas 23 December 2009]; [UNITED STATES District Court, Southern District of Ohio 26 March 2009]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2005 (Arbitral award No. CISG/2005/03)]; [CANADA Quebec Superior Court, District of Montreal 29 July 2005]; [UNITED STATES District Court, Northern District of Alabama 27 April 2005].

11. See [SWITZERLAND Schiedsgericht der Handelskammer Zürich 31 May 1996].

12. [UNITED STATES District Court, Eastern District of Arkansas 23 December 2009]; [UNITED STATES District Court, Southern District of Ohio 26 March 2009]; CLOUT case No. 579 [UNITED STATES District Court for the Southern District of New York 10 May 2002].

13. CLOUT case No. 579 [UNITED STATES District Court for the Southern District of New York 10 May 2002].

14. See [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 906 [SWITZERLAND Kantonsgericht Nidwalden 23 May 2005]; CLOUT case No. 907 [SWITZERLAND Tribunal Cantonal du Valais 27 May 2005]; CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004]; [SWITZERLAND Appelationshof Bern 11 February 2004]; CLOUT case No. 885 [SWITZERLAND Kantonsgericht Schaffhausen 13 November 2003]; [GERMANY Bundesgerichtshof 9 January 2002]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 80 [ITALY Tribunale di Pavia 29 December 1999]; CLOUT case No. 331 [SWITZERLAND Handelsgericht des Kantons Zürich 10 February 1999]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995]; CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993].

15. See [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 21 February 2005]; CLOUT case No. 261 [SWITZERLAND Berzirksgericht der Sanne 20 February 1997]; CLOUT case No. 103 [ICC Court of Arbitration of the International Chamber of Commerce, 1993 (Arbitral award no. 6653)].

16. For a decision which refers to the issue of what law governs burden of proof without resolving the matter, see CLOUT case No. 253 [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998].

17. For this line of argument, see [SWITZERLAND Appelationshof Bern 11 February 2004]; [GERMANY Bundesgerichtshof 9 January 2002]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 380 [ITALY Tribunale di Pavia 29 December 1999].

18. See CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993].

19. For references to this principle, see [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 885 [SWITZERLAND Kantonsgericht Schaffhausen 13 November 2003]; [GERMANY Bundesgerichtshof 9 January 2002]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; [GERMANY Landgericht Frankfurt, 6 July 1994]; CLOUT case No. 107 [AUSTRIA Oberlandesgericht Innsbruck 1 July 1994] (see full text of the decision); CLOUT case No. 608 [ITALY Tribunale di Rimini 26 November 2002].

20. [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 608 [ITALY Tribunale di Rimini 26 November 2002].

21. See [GERMANY Oberlandesgericht Oldenburg 20 December 2007].

22. CLOUT case No. 885 [SWITZERLAND Kantonsgericht Schaffhausen 13 November 2003].

23. See [UNITED STATES District Court, Western District of Pennsylvania 25 July 2008]; CLOUT case No. 549 [SPAIN Audiencia Provincial de Valencia 7 June 2003]; CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision).

24. See [GERMANY Landgericht Düsseldorf 25 August 1994]; CLOUT case No. 107 [AUSTRIA Oberlandesgericht Innsbruck, 1 July 1994].

25. See [BELGIUM Rechtbank von Koophandel Hasselt 21 January 1997].

26. See [NETHERLANDS Rechtbank Zwolle 1 March 1995]; [NETHERLANDS Hof Arnhem 21 May 1996].

27. CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision); for another case dealing with the issues of damages and burden of proof, see CLOUT case No. 214 [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997], stating that a buyer is generally entitled to interest on the loss of profit, but that in the case at hand the buyer lost his right to interest as he did not prove the time in which the profit would have been made (see full text of the decision).

28. See CLOUT case No. 549 [SPAIN Audiencia Provincial de Valencia 7 June 2003]; CLOUT case No. 380 [ITALY Tribunale di Pavia 29 December 1999]; CLOUT case No. 210 [SPAIN Audienca Provincial Barcelona 20 June 1997]; [GERMANY Landgericht Düsseldorf 25 August 1994].

29. For a court referring to both approaches mentioned in the text without, however, taking a position, see [SWITZERLAND Bundesgericht 17 December 2009]; for a court stating that resort is to be had to the rules of the lex fori, see CLOUT case No. 906 [SWITZERLAND Kantonsgericht Nidwalden 23 May 2005].

30. [UNITED STATES District Court, Western District of Washington 13 April 2006].

31. [ITALY Tribunale di Padova 31 March 2004].

32. [UNITED STATES District Court, Western District of Pennsylvania 25 July 2008].

33. [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 15 July 2008].

34. CLOUT case No. 578 [UNITED STATES District Court, Western District of Michigan 17 December 2001].

35. See [UNITED STATES District Court, Eastern District of California 26 October 2009 (Rice Corp. v. Grain Board of Iraq, et al.)]; [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; [NETHERLANDS Rechtbank Arnhem 14 November 2007]; [UNITED STATES District Court, Western District of Washington, 13 April 2006]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2004 (Arbitral award No. CISG/2004/08)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 3 February 2004]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2003 (Arbitral award No. CISG/2003/02)]; [BELGIUM Cour d'appel de Liège 28 April 2003]; CLOUT Case No. 579 [UNITED STATES Southern District Court for New York 10 May 2002]; CLOUT case No. 445 [GERMANY Bundesgerichthof 31 October 2001]; CLOUT case No. 433 [UNITED STATES U.S. Northern District Court for California, 27 July 2001 (Asante Technologies, Inc. v. PMC-Sierra, Inc.)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 30 May 2001]; CLOUT case No. 428 [AUSTRIA Oberster Gerichtshof 7 September 2000]; [BELGIUM Hof van Bereop Antwerpen 18 June 1996].

36. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 17.

37. See [ITALY Tribunale di Padova 31 March 2004].

38. See [SWITZERLAND Amtsgericht Sursee 12 September 2008].

39. See [GERMANY Oberlandesgericht Schleswig 24 October 2008]; [GERMANY Landgericht Landshut 12 June 2008]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2007 (Arbitral award No. CISG/2007/01)]; [FRANCE Cour d'appel de Versailles 13 October 2005]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2005 (Arbitral award No. CISG/2005/24)]; CLOUT case No. 907 [SWITZERLAND Tribunal Cantonal du Valais 27 May 2005]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2005 (Arbitral award No. CISG/2005/22)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2005 (Arbitral award No. CISG/2005/06)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2004 (Arbitral award No. CISG/2004/07)]; [CHINA Shanghai No. I. Intermediate People's Court, People's Republic of China, 23 March 2004]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2004 (Arbitral award No. CISG/2004/04)]; [ITALY Tribunale di Padova 25 February 2004]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2002 (Arbitral award No. CISG/2002/01)]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision); CLOUT case No. 333 [SWITZERLAND Handelsgericht des Kantons Aargau 11 June 1999] (see full text of the decision); [GERMANY Landgericht Berlin, 24 March 1999]; CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998] (see full text of the decision); CLOUT case No. 189 [AUSTRIA Oberster Gerichtshof 20 March 1997] (see full text of the decision); CLOUT case No. 335 [SWITZERLAND Cantone del Ticino, Tribunale d'appello 12 February 1996]; CLOUT case No. 334 SWITZERLAND Obergericht des Kantons Thurgau 19 December 1995]; CLOUT case No. 80 [GERMANY Kammergericht Berlin 24 January 1994] (see full text of the decision).

40. See [GERMANY Landgericht Landshut 12 June 2008]; CLOUT case No. 428 [AUSTRIA Oberster Gerichtshof 7 September 2000]; [NETHERLANDS Rechtbank Zutphen 29 May 1997]; [GERMANY Amtsgericht Nordhorn 14 June 1994].

41. [AUSTRIA Oberlandesgericht Linz 23 March 2005]; CLOUT case No. 831 [NETHERLANDS Hoge Raad 28 January 2005]; [GERMANY Oberlandesgericht Düsseldorf 21 April 2004]; CLOUT case No. 592 [GERMANY Oberlandesgericht Düsseldorf 30 January 2004]; CLOUT case No. 819 [GERMANY Landgericht Trier 8 January 2004].

42. For a different position, see [NETHERLANDS Rechtbank Arnhem 17 March 2004], (stating that issue of the applicability of seller's standard terms and conditions is governed by gap-filling domestic law).

43. See CLOUT case No. 425 [AUSTRIA Oberster Gerichtshof, 21 March 2000].

44. Ibid.

45. See CLOUT case No. 240 [AUSTRIA Oberster Gerichtshof 15 October 1998].

46. See [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2008 (Arbitral award No. CISG/2008/01)]; [GERMANY Oberlandesgericht München 5 March 2008]; [GERMANY Landgericht Freiburg 22 August 2002]; CLOUT case No. 613 [UNITED STATES District Court, Northern District for Illinois 28 March 2002]; CLOUT case No. 447 [UNITED STATES District Court, Southern District of New York 26 March 2002]. But see CLOUT case No. 632 [UNITED STATES U.S. Bankruptcy Court, United States 10 April 2001] (citing CISG article 53 in support of the proposition that payment or non-payment of the price is significant in determining whether title to goods had passed to the buyer).

47. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 17.

48. See [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 15 July 2008]; [GREECE 2006 Efetio Athinon (docket No. 4861/2006)]; CLOUT case No. 613 [UNITED STATES District Court, Northern District of Illinois 28 March 2002]; CLOUT case No. 308 [AUSTRALIA Federal Court, South Australian District, Adelaide 28 April 1995]; CLOUT case No. 226 [GERMANY Oberlandesgericht Koblenz 16 January 1992].

49. [GERMANY Oberlandesgericht Stuttgart 20 December 2004].

50. In addition to the issues listed in article 4, article 5 provides that the "Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person." See the Digest for article 5.

51. See [ARGENTINA Cámara Nacional de los Apelaciones en lo Comercial 14 October 1993].

52. See [GERMANY Oberlandesgericht Hamburg 25 January 2008]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 1 March 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 January 2006]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2005 (Arbitral award No. CISG/2005/05)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2005 (Arbitral award No. CISG/2005/04)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, 27 April 2005]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2004 (Arbitral award No. CISG/2004/07)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 9 June 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 24 May 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 20 April 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 19 March 2004]; [ITALY Tribunale di Padova 25 February 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 19 February 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 April 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 4 April 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 18 February 2002]; [BELGIUM Rechtbank van Koophandel Hasselt 17 June 1998]; [BELGIUM Hof van Beroep Antwerpen 18 June 1996]; [NETHERLANDS Hof Arnhem 22 August 1995]; CLOUT case No. 104 [ICC Court of Arbitration of the International Chamber of Commerce, 1992 (Award no. 7197)].

53. See CLOUT case No. 47 [GERMANY Landgericht Aachen 14 May 1993] (see full text of the decision).

54. See [SWITZERLAND Handelsgericht Aargau 26 November 2008]; [SLOVAKIA District Court in Trnava 17 September 2008]; [GERMANY Oberlandesgericht Hamburg 25 January 2008]; [SLOVAKIA Regional Court in Kosice 22 May 2007]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 May 2005]; [ITALY Tribunale di Padova 25 February 2004]; [GERMANY Bundesgerichtshof 9 January 2002]; CLOUT case No. 428 [AUSTRIA Oberster Gerichtshof 7 September 2000]; [AUSTRIA Oberster Gerichtshof 25 June 1998]; [AUSTRIA Oberlandesgericht Graz 15 June 2000]; CLOUT case No. 269 [GERMANY Bundesgerichtshof 12 February 1998] (see full text of the decision); CLOUT case No. 334 [SWITZERLAND Obergericht des Kantons Thurgau 19 December 1995]; [BELGIUM Tribunal de commerce Nivelles 19 September 1995]; CLOUT case No. 132 [GERMANY Oberlandesgericht Hamm 8 February 1995]; [SWITZERLAND Bezirksgericht Arbon 9 December 1994].

55. See CLOUT case No. 124 [GERMANY Bundesgerichtshof 15 February 1995] (see full text of the decision).

56. See [GERMANY Bundesgerichtshof 23 June 2010]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 September 2008]; [GERMANY Oberlandesgericht Köln 19 May 2008]; [GREECE Monomeles Protodikio Thessalonikis 2007 (docket No. 43945/2007)]; CLOUT case No. 823 [GERMANY Oberlandesgericht Köln 13 February 2006]; CLOUT case No. 908 [SWITZERLAND Handelsgericht Zürich 22 December 2005]; [AUSTRIA Oberlandesgericht Linz 23 March 2005]; [GERMANY Oberlandesgericht Stuttgart 20 December 2004]; [GERMANY Oberlandesgericht Düsseldorf 22 July 2004]; CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004]; [ITALY Tribunale di Padova 25 February 2004]; [GERMANY Landgericht Bielefeld 12 December 2003]; [GERMANY Oberlandesgericht Düsseldorf 25 July 2003]; [GERMANY Landgericht Mönchengladbach 15 July 2003]; [GERMANY Bundesgerichtshof 9 January 2002]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; CLOUT case No. 727 [ITALY Chamber of National and International Arbitration of Milan 28 September 2001]; [GERMANY Oberlandesgericht Köln, 28 May 2001]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision); CLOUT case No. 360 [GERMANY Amtsgericht Duisburg 13 April 2000]; CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998]; CLOUT case No. 259 [SWITZERLAND Kantonsgericht Freiburg 23 January 1998]; [GERMANY Landgericht Hagen, 15 October 1997]; [GERMANY Landgericht München 6 May 1997]; CLOUT case No. 273 [GERMANY Oberlandesgericht München 9 July 1997] (see full text of the decision); CLOUT case No. 275 [GERMANY Oberlandesgericht Düsseldorf 24 April 1997] (see full text of the decision); CLOUT case No. 169 [GERMANY Oberlandesgericht Düsseldorf 11 July 1996]; [GERMANY Landgericht Duisburg 17 April 1996]; CLOUT case No. 289 [GERMANY Oberlandesgericht Stuttgart 21 August 1995]; [GERMANY Landgericht München 20 March 1995]; [NETHERLANDS Rechtbank Middelburg 25 January 1995]; [GERMANY Amtsgericht Mayen 6 September 1994]; CLOUT case No. 281 [GERMANY Oberlandesgericht Koblenz 17 September 1993]; CLOUT case No. 125 [GERMANY Oberlandesgericht Hamm 9 June 1995]; [NETHERLANDS Rechtbank Roermond 6 May 1993]; CLOUT case No. 99 [NETHERLANDS Rechtbank Arnhem 25 February 1993].

57. See CLOUT case No. 821 [GERMANY Oberlandesgericht Karlsruhe 20 July 2004]; CLOUT case No. 591 [GERMANY Oberlandesgericht Düsseldorf 28 May 2004]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]. For the application of the Convention to set-off in respect of receivables arising out of contracts governed by the Convention, see [SWITZERLAND Kantongsgericht Zug 14 December 2009]; [GERMANY Landgericht Stuttgart 29 October 2009]; CLOUT case No. 360 [GERMANY Amtsgericht Duisburg 13 April 2000]; CLOUT case No. 273 [GERMANY Oberlandesgericht München 9 July 1997] (see full text of the decision).

58. [BELGIUM Hof van Cassatie19 June 2009].

59. See [SWITZERLAND Bundesgericht 18 May 2009]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 September 2008]; [SLOVAKIA Supreme Court 30 April 2008]; CLOUT case No. 823 [GERMANY Oberlandesgericht Köln 13 February 2006]; [FRANCE Cour d'appel de Versailles 13 October 2005]; CLOUT case No. 946 [SLOVAKIA Krajský súd v Bratislave 11 October 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 2 June 2005]; CLOUT case No. 906 [SWITZERLAND Kantonsgericht Nidwalden 23 May 2005]; [BELGIUM Hof van Beroep Ghent 4 October 2004]; CLOUT case No. 821 [GERMANY Oberlandesgericht Karlsruhe 20 July 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Russian Fedration, 9 June 2004]; [BELGIUM Hof van Beroep Ghent 17 May 2004]; [UKRAINE Tribunal of International Commercial Arbitration at the Ukrainian Chamber of Commerce and Trade 15 April 2004]; [ITALY Tribunale di Padova 25 February 2004]; CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004]; CLOUT case No. 635 [GERMANY Oberlandesgericht Karlsruhe 10 December 2003]; [GERMANY Oberlandesgericht Zweibrücken 26 July 2002]; [FRANCE Court of Arbitration of the International Chamber of Commerce 2002 (Arbitral award No. 11333)]; CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002]; [BELGIUM Rechtbank van Koophandel Ieper 29 January 2001]; CLOUT case No. 428 [AUSTRIA Oberster Gerichtshof 7 September 2000]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision); CLOUT case No. 476 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 6 June 2000]; CLOUT case No. 297 [GERMANY Oberlandesgericht München 21 January 1998] (see full text of the decision); [AUSTRIA Oberster Gerichtshof 25 June 1998]; CLOUT case No. 345 [GERMANY Landgericht Heilbronn 15 September 1997]; CLOUT case No. 249 [SWITZERLAND Cour de Justice Genève 10 October 1997]; [GERMANY Landgericht Düsseldorf 11 October 1995]; CLOUT case No. 125 [GERMANY Oberlandesgericht Hamm 9 June 1995]; CLOUT case No. 302 [ICC Court of Arbitration of the International Chamber of Commerce, 1994 (Arbitral award No. 7660/KJ)]. But see CLOUT case No. 482 [FRANCE Cour d'appel de Paris 6 November 2001] (stating that the limitation period is a matter governed by but not expressly settled in the Convention, but resolving the issue by reference to applicable domestic law).

60. See [SWITZERLAND Bundesgericht 11 July 2000]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision).

61. [SWITZERLAND Tribunal Cantonal du Valais 21 February 2005]; [SWITZERLAND Cour de Justice de Genève 15 November 2002]; [SWITZERLAND Bundesgericht 11 July 2000].

62. See [GERMANY Landgericht Hamburg 2 November 2005]; [AUSTRIA Oberster Gerichtshof 24 April 1997].

63. See [SWITZERLAND Bundesgericht 17 October 2000 ]; CLOUT case No. 338 [GERMANY Oberlandesgericht Hamm 23 June 1998].

64. See CLOUT case No. 848 [UNITED STATES District Court, Middle District of Pennsylvania 6 January 2006 (American Mint LLC, Goede Beteiligungsgesellschaft, and Michael Goede v. GOSoftware, Inc)]; [UNITED STATES District Court, Middle District of Pennsylvania 16 August 2005]; [UNITED STATES District Court, Northern District of Illinois 30 March 2005]; CLOUT case No. 613 [UNITED STATES District Court, Northern District of Illinois 28 March 2002]; CLOUT case No. 269 [GERMANY Bundesgerichtshof 12 February 1998].

65. See [GERMANY Landgericht München 25 January 1996].

66. CLOUT Case No. 579 [UNITED STATES District Court, Southern District Court of New York 10 May 2002]; CLOUT case No. 420 [UNITED STATES District Court, Eastern District of Pennsylvania 29 August 2000].

67. [UNITED STATES District Court, Eastern District of Arkansas 23 December 2009].

68. [UNITED STATES District Court, Eastern District of Arkansas 23 December 2009]; see also [UNITED STATES District Court, Southern District of Ohio 26 March 2009].

69. [UNITED STATES District Court, Eastern District of Arkansas 23 December 2009].

70. CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004].

71. [UNITED STATES District Court, Northern District of Illinois 30 March 2005]; [NETHERLANDS Arrondissementsrechtbank Amsterdam 5 October 1994].

72. See CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997] (see full text of the decision); CLOUT case No. 94 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -- Wien 15 June 1994]; CLOUT case No. 93 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -- Wien 15 June 1994] (see full text of the decision); [NETHERLANDS Hof s'Hertogenbosch 26 February 1992].

73. CLOUT case No. 613 [UNITED STATES District Court, Northern District of Illinois 28 March 2002 (Usinor Industeel v. Leeco Steel Products, Inc.)].

74. For a case expressly referring to the fact that the parties are free to choose the currency since the Convention does not deal with the issue, see CLOUT case No. 84 [GERMANY Oberlandesgericht Frankfurt am Main 20 April 1994] (see full text of the decision).

75. See CLOUT case No. 907 [SWITZERLAND Tribunal Cantonal du Valais 27 May 2005]; [SWITZERLAND Tribunal Cantonal du Valais 19 August 2003]; [ARGENTINA Juzgado Comercial No. 26 Secretaria No. 51, Buenos Aires 2 July 2003]; [ARGENTINA Juzgado Comercial No. 26 Secretaria No. 52, Buenos Aires 17 March 2003,]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; CLOUT case No. 255 [SWITZERLAND Tribunal Cantonal du Valais 30 June 1998]; CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998] (see full text of the decision).

76. CLOUT case No. 80 [GERMANY Kammergericht Berlin 24 January 1994]; see, however, [GERMANY Landgericht Berlin, 24 March 1998], (describing an alternative view that the Convention does not contain a general principle to address this issue).

77. [GREECE Monomeles Protodikio Thessalonikis 2008 (docket No. 16319/2007)].


©Pace Law School Institute of International Commercial Law - Last updated July 26, 2012
Go to Database Directory || Go to Information on other available case data
Comments/Contributions