Comments on the match-up
"[The] articles in ULIS dealing with the principles for the application of that Convention -- Article 2 (no application of private international law) and Article 17 (gap-filling by applying general principles of the Convention) -- were . . . not adopted in the same form in the CISG. . . . Herber in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 60-61 [citations omitted].
Even so, Herber advises that "The principles to be applied in order to fill gaps do not materially differ from those in ULIS. Reference may therefore by made to the case law and literature on Article 17 ULIS." Herber, id. at 66.
Illustrative ULIS case precedents that can aid in the interpretation of CISG Article 7
A ULIS precedent for reasonableness as a general principle of the Convention
In the Netherlands case of Tesa v. Amram (Amsterdam Court of Appeals 5 January 1976, S&S 1978,79), the issue before the court was the reasonableness of the length of the period of time set for payment according to Article 62(2) ULIS. The court stated: "The Uniform Law on International Sales . . . uses in its Articles 10, 11, 18, 22, 26(1), 26(4), 37, 42(2), 61(2), 66(2), 74, 88 and 91 the words 'reasonable', 'unreasonable' and 'reasonably'; 'reasonableness' is therefore one of the general principles by which, in accordance with Article 17 ULIS, questions not expressly settled in the uniform sales law shall be answered. . . ." The source of this translation is van der Velden, "Indications of the Interpretation by Dutch Courts of the United Nations Convention on Contracts for the International Sale of Goods 1980", in Netherlands Reports to the Twelfth International Congress of Comparative Law -Sydney/Melbourne 1986, Gerver/Hondius/Steenhof eds. (Asser Insituut/Martinus Nijhoff: The Hague 1987) 44 n.42.
A ULIS precedent for having the Convention itself accomplish that which is customarily accomplished by domestic unconscionability statutes
"The Court of Appeal of Hamm . . . had to decide the following case: An Italian seller had sold textiles for the manufacture of trousers to a German buyer. The seller's Conditions of Sale stated that all remedies were excluded after processing of the delivered goods. After delivery, the buyer examined the goods without discovering any defects, but when the finished trousers were ironed it turned out that the material was unfit. As a bar to the buyer's damage claim, the seller asserted his exemption clause. The Court rejected this defense, refering to articles 79 and 80 ULIS (which basically correspond to articles 82 and 83 of the Convention) and ruled that the clause violated basic principles of ULIS and was therefore ineffective [Judgment of a German court, 29 April 1982, Praxis des Internationalen Privat- und Verfahrensrechts (Germany) 1983, 232 et seq.]." Schlechtriem, "The Seller's Obligations under the United Nations Convention on Contracts for the International Sale of Goods", in International Sales, Galston/Smit eds. (Matthew Bender: New York 1984) ch. 6, 6. Schlechtriem states: "Thus the Convention is not just a gap-filler. It may under certain circumstances also be a yardstick for the validity of clauses that the parties have not really agreed upon but that one has imposed upon the other through the use of standard terms or other means." Ibid.
Other illustrative interpretations and ULIS case support
The ULIS case law referred to below comes from the chapter on CISG Article 7 in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Clarendon Press. Oxford 1998).
The author of this chapter is Rolf Herber, Emeritus Professor, University of Hamburg. [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. We have only cited his ULIS notes; see the chapter itself for his comprehensive analysis of CISG Article 7.
- CISG Article 7(1) confirms that principles may be based on the notion of good faith. Its applicability in uniform law was assumed under ULIS.
- OLG Düsseldorf 20 January 1983 in Schlechtriem/Magnus, International Rechtsprechung zu EKG und EAG [International case law on ULIS and ULF], Baden-Baden: Nomos (1987) Art. 17 [ULIS] No. 7 [66 n.54]
-
Other principles can be derived from the need for the observance of good faith. They include, in particular, the prohibition of the misuse of rights.
- OLG Karlsruhe, IPRax 1987, 237, 239 [67 n.58]
- Case law on ULIS has established the following principles (but, since the CISG [Article 7(2), second part] provides for recourse to domestic law, they can only be used to a limited extent):
- BGHZ 78, 257, 260 [67 n.63]
the place for performance for repayment of the purchase price following a declaration of avoidance is the seller's place of business
- OLG Köln, RIW 1988, 555, 557 [67 n.64]
- BGHZ 78, 257, 260 [67 n.64]
compensation is to be made at the place where the party liable should have performed the obligation in respect of which compensation is claimed
- OLG Koblenz 21 January 1983 in Schlechbriem/Magnus, Art. 56 [ULIS] No. 7 [67 n.65]
the principle derived from Article 57(1) (= 59 ULIS) that the purchase price is to be paid in the seller's currency (can probably not be maintained under the CISG)
- Hof Amsterdam 4 November 1982, Rb Amsterdam 5 March 1980, Rb Alkmaar 27 May 1982 in Schlechtriem/Magnus, Art. 17 [ULIS] Nos. 4, 6 [67 n.66]
it also seems problematical to continue to apply the principles laid down by Netherlands courts to the effect that, in cases of doubt as to which debt is to be paid, a payment should first be set against default interest and then against the oldest debt
Pace Law School Institute of
International Commercial Law
- Last updated June 16, 1998
Comments/Contributions