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Reproduced with permission from 15 Journal of Law and Commerce (1995) 175-199

THE INTERPRETIVE CHALLENGE TO UNIFORMITY

excerpt from review of

Les premières applications jurisprudentielles du droit uniforme de la vente internationale

by Claude Witz (L.G.D.J. Paris 1995)

Reviewed by Vivian Grosswald Curran

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Defining "Goods" and "Sales"

Witz notes with approval that judicial decisions concerning the definition of "goods" within the meaning of the CISG have relied not only on scholarly commentary, but also on the definition reached by prior courts in various Contracting States; namely, that contracts for intellectual services are not governed by the CISG (p. 32)[OLG Köln 26 August 1994],[12] and that shares in the capital of a company similarly are not within the purview of the CISG [Arbitral proceeding, Hungarian Chamber of Commerce 20 December 1993] [13] (pp. 33-34).

Issues as to whether a transaction constitutes a sale within the meaning of the CISG frequently arise where a contract deals with goods not yet produced, especially where a party also has a duty to furnish labor or other services (p. 34). Contracts for furnishing goods to be manufactured or produced generally are deemed to be within the CISG's scope, except where the buyer "undertakes to supply a substantial part of the materials necessary for such manufacture or production."[14] Witz notes that the drafters had in mind situations in which the client furnishes the primary materials of the goods to be manufactured or produced, but in that practice the manufacturer tends to furnish the primary material, and the CISG governs, with no need to distinguish among, respectively, the economic value of the materials used and either the work involved in the production or manufacture of the goods or the extent to which the client may have played a role in developing the concept of the goods (p. 34).

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FOOTNOTES

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12. OLG Köln, 26-08-1994, RIW 1994, 970 et seq.

13. Hungarian Chamber of Commerce, 20-12-1993, introduced by Alexander Vida, Keine Anwendung des UN-Kaufrechtsübereinkommens des Geschäftsanteils einer GmbH, IPRax 1995, 52-53.

14. CISG, Article 3(1). Significantly, the English version of the CISG refers to "a substantial part," while the French version refers to "an essential part" ("une part essentielle"). For an analysis of the significance of this difference in terminology in Articles 71 and 72, see Flechtner, supra note 2. German and Swiss scholars agree with the French view that component parts should be analyzed in terms of whether they are essential. This also follows from the German-language version of the CISG (an unofficial version, to be sure), using the term "wesentlich," which translates in English as the qualitative essential. Interestingly, in Articles 71 and 72, where the English text uses the two distinct terms, "substantial" and "fundamental," and the French uses only "essentielle" in both articles, the German text, like the French, uses only one term, "wesentlich." While the different qualitative connotations and implications of substantial and fundamental vis-à-vis essentielle/wesentlich appear to be significant, all three language versions contrast in similar manner the qualitative connotations of the words used in Article 3(1) with the quantitative connotations of preponderance in Article 3(2), the English "preponderant" corresponding with both the French "prépondérante" and the German "überwiegende."

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Pace Law School Institute of International Commercial Law - Last updated June 21, 1999
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