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GUIDE TO CISG ARTICLE 4

Secretariat Commentary (closest counterpart to an Official Commentary)


Guide to the use of this commentary

The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text. The Secretariat Commentary on article 4 of the 1978 Draft is quoted below with the article references contained in this commentary related to the Official Text as follows: article 4 [draft counterpart of CISG article 4].

To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a validation of citations to this Secretariat Commentary. This match-up indicates that 1978 Draft article 4 and CISG article 4 are substantively identical.


Text of Secretariat Commentary on article 4 of the 1978 Draft
[draft counterpart of CISG article 4]   [Substantive coverage of Convention]

PRIOR UNIFORM LAW

ULIS, articles 4, 5(2) and 8.

COMMENTARY

1. Article 4 [draft counterpart of CISG article 4] limits the scope of the Convention, unless elsewhere expressly provided in the Convention, to governing the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from a contract of sale.

[Citing LC Hamburg, RIW 1990. 1015, Schlechtriem notes that the first sentence of Article 4 is not entirely correct because Article 29 of the Convention also regulates the modification or termination of the contract." Peter Schlechtriem,"Vienna Sales Convention 1980 (recent developments) - Developed Countries' Perspectives", presentation at Conference for International Business Law (Singapore 1992), p. 27.]

Validity, subparagraph (a)

2. Although there are no provisions in this Convention which expressly govern the validity of the contract or of any usage, some provisions may provide a rule which would contradict the rules on validity of contracts in a national legal system. In case of conflict the rule in this Convention would apply.

3. The only article in which the possibility of such a conflict is apparent is article 10 [draft counterpart of CISG article 11], which provides that a contract of sale of goods need not be concluded in or by writing and is not subject to any other requirements as to form. In some legal systems the requirement of a writing for certain contracts of sale of goods is considered to be a matter relating to the validity of the contract. It may be noted that pursuant to article 11 and article (X) [draft counterparts of CISG articles 12 and 96], a Contracting State whose legislation requires a contract of sale to be concluded in or evidenced by writing may make a declaration that, inter alia, article 10 [draft counterpart of CISG article 11] shall not apply where any party has his place of business in a Contracting State which has made such a declaration.

Passing of property, subparagraph (b)

4. Subparagraph (b) makes it clear that the Convention does not govern the passing of property in the goods sold. In some legal systems property passes at the time of the conclusion of the contract. In other legal systems property passes at some later time such as the time at which the goods are delivered to the buyer. It was not regarded possible to unify the rule on this point nor was it regarded necessary to do so since rules are provided by this Convention for several questions linked, at least in certain legal systems, to the passing of property; the obligation of the seller to transfer the goods free from any right or claim of a third person [see footnote 1]; the obligation of the buyer to pay the price [see footnote 2]; the passing of the risk of loss or damage to the goods [see footnote 3]; the obligation to preserve the goods [see footnote 4] (OFFICIAL RECORDS, p. 17).

[Goode explains Article 4(b) and related limitations on the scope of the CISG as follows: ''The Vienna Sales Convention has been criticised for not dealing with the passing of property or with priority conflicts between the seller/buyer and a third party. Why were these important topics omitted? First, it would have made the project too large (as it is, the Convention runs to 101 articles). Secondly, it was felt that on issues of property law differences in legal policy and approach created a chasm too large to bridge. A particular stumbling block is the significance of possession as a deteminant of property rights. In a number of legal systems there is a presumption that the property in identified goods is intended to pass on the making of the contract, in others, only on delivery. The effect of an unauthorized disposition by a party in possession who has not yet acquired ownership also raises acute differences in approach. In particular, common law systems start from the position nemo dat quod non habet, civil law systems from the principle en fait de meubles la possession vaut titre. Both sets of systems have moved towards each other but a gulf remains. There is the additional problem that. conflicting claims to tangible movables raises issues going well beyond sales law and that conflicts arising from sales transactions cannot sensibly be dealt with in isolation." Royston M. Goode, ''Reflections on the Harmonisation of Commercial Law", 1 Uniform LR. (1991) 61-62.]


FOOTNOTES

1. Articles 39 and 40 [draft counterpart of CISG articles 41 and 42].

2. Article 49 [draft counterpart of CISG article 53].

3. Articles 78 to 82 [draft counterpart of CISG articles 66 to 70].

4. Articles 74 and 77 [draft counterpart of CISG articles 85 to 88].


Pace Law School Institute of International Commercial Law - Last updated August 29, 2006
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