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Reproduced with permission from Revue de droit uniforme/Uniform Law Review (1997) 385-395

excerpt from

The U.N. Convention on the International Sale of Goods: A Critical Analysis of Current International Case Law - 1997 (Part 1)

Michael Joachim Bonell [*] and Fabio Liguori [**]

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Matters excluded from the scope of the Convention

Article 4 states that the Convention only governs the formation of the contract and the rights and obligations of the seller and the buyer arising from such a contract. It also expressly excludes from its substantive scope of application issues relating to the validity of the contract, or of any of its provisions or of any usage (subparagraph (a)), as well as the effect which the contract may have on the property in the goods sold (subparagraph (b)).

(a) Validity of the contract and effect on property

With reference to the effect of a sales contract on the property in the goods sold mention may be made of a German decision stating that the Convention does not cover the question of the validity of a retention of title clause,[23] and of a judgment from an Australian court which, while applying CISG to determine whether a retention of title clause had actually been agreed by the parties and if so what its content was, ruled that the effect of such a clause on the property in the goods was to be determined according to the law applicable by virtue of the rules of private international law.[24]

A German court held that the question of the validity of the standard terms fell outside the scope of CISG under Article 4(a) and had to be determined according to the law governing the contract.[25] Also an Argentine court decided that the issue relating to the validity of a forum selection clause contained in the standard terms printed on the invoice forms sent by the buyer was excluded from the scope of the Convention under Article 4(a) and was governed by the applicable domestic law.[26]

(b) Other matters implicitly excluded

Since the list provided in Article 4 is not an exhaustive one, the problem arises of determining what other matters are excluded from the scope of the Convention and as such governed by the applicable domestic law, and how they can be distinguished from other matters which, though not expressly settled in the Convention, fall within its scope and must therefore be settled whenever possible in conformity with the general principles underlying the Convention (Article 7(2)).[27]

The case law offers quite a number of examples in which it has been held that certain matters are implicitly excluded from the Convention.

Thus there are decisions which confirm that the Convention does not cover issues relating to the capacity of the parties,[28] the existence of an agency relationship,[29] the right to set-off against the other party's claim,[30] the validity of the assignment of one party's right to third parties,[31] prescription (i.e. limitation period),[32] the validity of a penalty clause,[33] the recovery of damages arising from mandating an agent to collect debts,[34] the validity of a settlement agreement,[35] and defects in consent.[36]

Another issue discussed is whether or not the matter of burden of proof in case of defective goods is covered by the Convention. An award rendered by the I.C.C. Court of Arbitration held that, since CISG does not expressly determine who should prove non-conformity, the issue must be determined on the basis of domestic law.[37] According to a Swiss court, however, the principle according to which the buyer has to provide evidence of the defect and give notice thereof is implicit in Articles 38 and 39 and reflects a general principle underlying the Convention.[38] The argument seems convincing, although it should be clear that the further questions as to the admissibility of such evidence and the limits thereof must be settled in accordance with the applicable substantive and procedural domestic law.

The Convention deals with the modification of the contract (see Article 29), but is silent as to novation. An award of the I.C.C. Court of Arbitration rightly referred to domestic law to clarify that novation requires the proof by the party alleging it that the original parties to the contract shared an "animus novandi." The same court, however, applied Article 8 CISG -- as a generally accepted rule of interpretation -- to ascertain whether the parties actually had an "animus novandi".[39]

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Go to entire text of Bonell/Liguori commentary


FOOTNOTES

* Professor, Law Faculty, University of Rome 1 "La Sapienza"; Legal Consultant, Unidroit.

** Attorney in Rome; Research fellow, University of Rome 1 "La Sapienza".

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23. Oberlandesgericht Koblenz, 16 January 1992, n. 5 U 534/91, in Recht der Internationalen winschaft (1992) 1019.

24. Federal Court, South Australia District Adelaide, 28 April l995, in 57 Federal Court Report (1995) 216.

25. Amtsgericht Nordhorn, 14 June 1994, n. 3 C 75/94, in UNILEX 1996.

26. Cámara Nacional en lo Comercial, 14 October 1993, n. 45626, in El Derecho (25 April 1996) 4.

27. For a detailed examination of this problem see H.E. Hartnell, Rousing the Sleeping Dog: The Validity Exception to the Convention on Contracts for the International Sale of Goods, 18 Yale Journal of International Law (1993) 1.

28. Cf. Landgericht Hamburg, 26 September 1990, n. 5 O 543/88, in IPRax: Praxis des Intemationalen Privat- und Verfahrensrechts (1991) 400.

29. Cf. Landgericht Hamburg, 26 September 1990, cit.; Landgericht Berlin, 24 January 1994, n. 2 U 7418/92, in Recht der Internationalen Wirtschaft (1994) 683; Amtsgericht Alsfeld, 12 May 1995, n. 31 C 534/94, in Neue Juristische Wochenschrift Rechtsprechungs-Report (1996) 120.

30. Cf. Arrondissementsrechtbank Arnhem, 25 February 1993, n. 1992/182, in Nederlands Internationaal Privaatrecht (1993) nr.445, Arrondissementsrechtbank Roermond, 6 May 1993, n. 920159, in UNILEX 1996; Oberlandesgericht Koblenz, 17 September 1993, n.2 U 1230/91, in Recht der Internationalen Wirtschaft (1993) 934; Oberlandesgericht Hamm, 9 June l995, n.11 U 191/94, in IPRax: Praxis des Internationalen Privat- und Verfahrensrechts (1996) 269; Oberlandesgericht Stuttgart, 21 August 1995 n. 5 U 195/94, in Recht der Internationalen Wirtschaft (1995) 943; Oberlandesgericht Düsseldorf, 11 July 1996, n.6 U 152/95, in Recht der Internationalen Wirtschaft (1996) 958. A different opinion seems to be found in the judgment rendered by the Arrondissementsrechtbank Middelburg, 25 January 1995, n.300/94, in Nederlands Internationaal Privaatrecht(1996) nr. 127, which held that set-off is a matter not expressly settled by the Convention.

31. Cf. Bezirksgericht Arbon, 9 December 1994, n. BG 9341/94, in UNILEX 1996; Oberlandesgericht Hamm, 8 February 1995, n. 11 U 206/93, in IPRax: Praxis des Internationalen Privat- und Verfahrensrechts (1995) 197.

32. ICC Court of Arbitration, 23 August 1994, n. 7660/JK, in ICC International Court of Arbitration Bulletin (1995) n. 6, 69; Oberlandesgericht Hamm, 9 June 1995, n. 11 U 191/94, in IPRax: Praxis des Internationalen Privat- und Verfahrensrechts (1996) 269.

33. ICC Court of Arbitration, n. 7197/1992, in Journal du droit international (1993) 1028; Gerechtshof Arnhem, 22 August 1995, n. 94/305, in Nederlands Intemationaal Privaatrecht (1995) nr. 514.

34. Oberlandesgericht Rostock 27 July 1995, n. 1 U 247/94, in OLG-Report (1996) 50.

35. Landgericht Aachen, 14 May 1993, n. 43 O 136/92, in Recht der Internationalen Wirtschaft (1993) 760.

36. Handelsgericht St. Gallen, 24 August 1995, n. HG48/1994, in UNILEX 1996. On the other hand, application of the Convention precludes recourse to domestic laws regarding defects in the quality of the goods and "Wegfall der Geschäftsgrundlage", as these matters are exhaustively covered by the Vienna Convention, as rightly pointed out by Landgericht Aachen, 14 May 1993, n. 43 O 136/92, in Recht der Internationalen Wirtschaft (1993) 760.

37. ICC Court of Arbitration, n. 6653/1993, in Journal du droit international (1993) 1040.

38. Handelsgericht Zürich, 9 September 1993, n. HG930138 U/H93, in UNILEX 1996. See also Handelsgericht Zürich, 26 April 1995, n. HG920670, in UNILEX 1996.

39. ICC Court of Arbitration, n. 7331/1994, in ICC International Court of Arbitration Bulletin (1995) n.6, 73.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999
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