LEGISLATIVE HISTORY

CISG ANTECEDENTS

• Match-up of CISG Article 4 with ULIS provisions
  
• Comments on the matchup
  
• ULIS case precedents aiding in interpretation of CISG Article 4

     CISG Article 4                    ULIS Article 8   
 
This Convention governs        The present Law shall govern 
only the formation of the      only the obligations of the 
contract of sale and the       seller and the buyer arising 
rights and obligations of      from a contract of sale. In 
the seller and the buyer       particular, the present Law 
arising from such contract.    shall not, except as otherwise 
In particular, except as       expressly provided therein, 
otherwise expressly provided   be concerned with the 
in the Convention, it is not   formation of the contract, 
concerned with:                nor with the effect which 
                               the contract may have on 
(a) the validity of the        the property in the goods sold, 
    contract or of any of      nor with the validity of the 
    its provisions or of       contract or of any of its 
    any usage;                 provisions or of any usage. 
 
(b) the effect which the  
    contract may have 
    on the property in 
    the goods sold. 
 
SEE ALSO: 
 
ULIS Article 2.  Rules of private international law shall 
be excluded for the purpose of the application of the present 
Law, subject to any provision to the contrary in the said Law. 
[ULF Article 1(9) is  the same effect.]  
 
ULIS Article 5(2).  The present Law shall not affect the  
application of any mandatory provisions of national law 
for the protection of a party to a contract which  
contemplates the purchase of goods by that party by 
payment of the price by instalments. 
 
ULIS Article 34.  In cases to which Article 33 relates [ULIS 
Article 33 is a counterpart to CISG Article 35] the rights 
conferred on the buyer by the present Law exclude all 
other remedies based on lack of conformity of the goods. 
 
ULIS Article 53.  The rights conferred on the buyer by 
Article 52 [Transfer of Property] exclude all other 
remedies based on the fact the seller has failed to perform 
his obligations to transfer the property in the goods  
or that the goods are subject to a right or claim of a  
third person. 
 
ULIS Article 89.  In case of fraud, damages shall be  
determined by the rules applicable in respect of  
contracts of sale not governed by the present Law. 
 
and 
 
ULIS Article 4.  The present Law shall also apply 
where it has been chosen as the law of the contract 
by the parties, whether or not their places of business  
or their habitual residences are in different States 
and whether or not such States are Parties to the 
Convention dated the 1st day of July 1964 relating 
to a Uniform Law on the International Sale of Goods, 
to the extent that it does not affect the application  
of any mandatory provisions of law which would  
have been applicable if the parties had not chosen 
the Uniform Law. 

Comments on the match-up

Go to views on citing ULIS or ULF cases in CISG proceedings

Illustrative ULIS case precedents that can aid in the interpretation of CISG Article 4

The author of this chapter is Rolf Herber, Emeritus Professor, University of Hamburg. ULIS case annotation provided are his. [Bracketed] material following each case citation identifies the page of his chapter and the footnote he provides. Click here for schedule of abbreviations contained in his case citations.

Interpretation and ULIS case support

The material we have excerpted pertains only to case law under the Uniform Law that preceded the CISG -- jurisprudence that parties have regarded as relevant because the CISG drafting process commenced with that Law. See the cited chapter of the Schlechtriem Commentary for a comprehensive analysis of CISG Article 4.

• The law determining whether a power of representation exists is to be ascertained independently (and therefore not to be appraised under the proper law of contract); the proper law of the legal representative applies in that regard, or, in the case of a power of attorney, the law of the country in which it is effective. 
  • OLG Karlsruhe, IPRax 1987, 237, 239 (apparent authority is governed by the law of the country in which the appearance of authority arose) [44 n.16]

  • For a different view, see OLG Frankfurt, TranspR 1986, 139, 140 [44 n.16]

• The Convention does not govern any matters concerning public law and procedural law. Nevertheless, the CISG occasionally governs procedural issues indirectly (for example, in Article 57, which by laying down the place of performance for payment of the price can also establish jurisdiction for the purposes of domestic law).

  On the corresponding rule in Article 59 ULIS see:

  • BGZH 78, 257, 260 [46 n.32]

  • BGHZ 71, 136, 141 [46 n.32]

  • OLG Düsseldorf, IPRax 187, 234 [46 n.32]

  • OLG Hamm, RIW 1985, 406, 407 [46 n.32]

  • OLG Stuttgart, RIW 1978, 545 [46 n.32]

  • LG Oldenburg, RIW 1977, 428 [46 n.32]

• Since the proper law of the contract applies to both performance and counter-performance, the claim for the contract price is, as a rule, governed by the law of the place where the seller is established.
  • LG Baden-Baden, IPRax 1987, 112, 113 (same result but based on the fact that the place of performance for the claim for the contract price was the seller's place of business (Art. 59(1) ULIS = Art. 57(1(a) CISG)) [47 n.38]

  • LG Hannover, IPRax 1987, 113 (also based on the fact that the place of performance for the claim for the contract price was the seller's place of business) [47 n.38]

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