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

Digest of Article 5 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
Scope of the exclusion]

Article 5

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

Overview

1. Pursuant to this provision, the Convention does not deal with liability for death or personal injury caused by the goods to any person,[1] regardless of whether the injured party is the buyer or a third party. Consequently, national law applies to those matters.

Scope of the exclusion

2. Article 5 declares that the Convention does not govern liability for death or personal injury "to any person".[2] Although this can be read to exclude a buyer's claim against the seller for pecuniary loss resulting from the buyer's liability to third parties for personal injury caused by the goods, one court has applied the Convention to such a claim.[3]

3. According to part of the case law, any claims for damage to property caused by non-conforming goods are governed by the Convention and do not fall within scope of the article 5 exclusion.[4] This excludes any concurrent domestic remedies for damage to property. Consequently, in those cases where the Convention applies, it requires a buyer to notify the seller of the lack of conformity that caused the damage to property in order for the buyer not to lose its claim.[5] Where the damage to property is not "caused by the goods", as where the buyer's property is damaged by delivery of the goods, the liability issue must be settled on the basis of applicable domestic law.

4. According to some courts, however, the Convention does not deal with concurrent tort claims[6] or claims based on the seller's negligent or fraudulent misrepresentation,[7] thus not pre-empting any such claim, but rather leaving it to the applicable domestic law to determine the prerequisites of any such claim.


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

2. CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995].

3. See CLOUT case No. 49 [GERMANY Oberlandesgericht Düsseldorf 2 July 1993] (see full text of the decision).

4. See CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995].

5. See CLOUT case No. 280 [GERMANY Thüringer Oberlandesgericht 26 May 1998]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995].

6. [UNITED STATES District Court, Eastern District of Arkansas 23 December 2009]; CLOUT Case No. 579 [UNITED STATES U.S. Southern District Court for New York 10 May 2002]; CLOUT case No. 420 [UNITED STATES District Court, Eastern District of Pennsylvania 29 August 2000].

7. [UNITED STATES District Court, Eastern District of Arkansas 23 December 2009]; [UNITED STATES District Court, Southern District of Ohio 26 March 2009]; [UNITED STATES District Court, Southern District of Ohio 10 October 2006]; CLOUT case No. 579 [UNITED STATES District Court, Southern District of New York 10 May 2002].


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