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Reproduced with permission from the author and 15 Journal of Law and
Commerce (1995) 1-126
Franco Ferrari [*]
(. . .)
[Definition of "goods"]
The Vienna Sales Convention governs only international sales contracts
(or other international contracts which the CISG considers sales contracts)
[424] concerning moveable goods. [425]
As far as the concept of "moveable goods" under the CISG is concerned, it
essentially corresponds to the one of the ULIS and the ULF, [426] even though the expressions used by the different laws
partially differ from each other. [427] Indeed, while all
the English texts use the expression "goods," the official French version of
the CISG uses the expression "marchandises" as opposed to the expression
"objets mobiliers corporels" employed by the 1964 Hague Conventions. [428] However, this innovation is considered to be merely a
terminological innovation, not a substantial one. [429]
Therefore, only corporeal moveable goods are considered goods under the
CISG, [430] as recently confirmed by a German court
decision [OLG Köln 26
August 1994]. [431] Consequently, the sale of
immovable property, [432] or of intangible goods, [433] such as industrial property rights, [434] is excluded from the sphere of application of the
CISG, [435] and this is why it surprises that a court has
decided that the sale of a logo is governed by the CISG [OLG Koblenz (Germany) 17 September
1993]. [436] By virtue of this definition of "goods," the sale of "know how," as well,
is to be excluded from the sphere of application, [437]
even though it has been argued otherwise. [438] On the
contrary, the sale of software different from custom-made software and
standard software that is extensively modified to fit the purposes of the
buyer is governed by the CISG, [439] however, not on the
grounds that in several legal systems the sale of software is considered a
sale, [440] but because in this line of cases (not unlike
cases where books or discs are to be sold) the result of the intellectual
activity is generally incorporated in corporeal goods. [441] This view was recently confirmed in an obiter
dictum of a German court, which expressly stated that the sale of
standard software can be considered a sale of goods in the sense of the CISG
[OLG Köln 26 August
1994], [442] whereas the sale of custom-made software
cannot be considered a sale of "goods" under the CISG. [443] The same court decision pointed out, however, that
although it is intended to be incorporated in a document, a market study
does not constitute a "good" in the sense of the CISG. [444] Furthermore, even though the sale of immovable property is excluded from
the sphere of application of the CISG, [445] the sale of
a mobile building, even where it is intended to be permanently affixed to
immovable property, falls within the CISG's field of application. [446] The same is true for the sale of corporeal goods to be
extracted or severed from land. [447] Furthermore, a Hungarian court recently stated that a contract for the
acquisition of part of an enterprise cannot be considered a sale of goods
under the CISG [Arbitral Award
of Hungarian Chamber of Commerce 20 December 1993]. [448] From what has been said thus far, one conclusion can be drawn: a uniform
definition of the concept of "goods" does not yet exist. [449] However, this should not lead to resorting to domestic
definitions in order to solve interpretive problems concerning the concept
of "goods" in the sense of the CISG: [450] in order to
achieve uniformity in the CISG's application, one must, as pointed out
earlier, interpret the expressions "goods," "marchandises," "mercaderias"
(not unlike all the other expressions used in the CISG) in an autonomous
way, that is, not in light of the concept of one's own domestic legal
system. (. . .)
Go to
entire text of Ferrari commentary
* Professor of Comparative Private Law, Katholieke
Universiteit Brabant, Tilburg, the Netherlands; J.D. (Honors), University of
Bologna, Italy; LL.M., University of Augsburg, Germany. Copyright, Franco
Ferrari.
(. . .)
424. See supra the text accompanying notes
339-423. 425. In order for the CISG to be applicable, it is not
necessary that the goods be moveable at the moment the contract is
concluded; it is sufficient that they be moveable at the moment their
delivery has to take place, as can be derived from Article 30 CISG. For a similar conclusion, see Herber & Czerwenka, supra
note 43, at 16-17 (stating that "the goods must be moveable at the time of
delivery, not necessarily at the moment the contract is concluded"); Magnus,
supra note 156, at 36; Peter Schlechtriem, Das Wiener
Kaufrechtsübereinkommen von 1980 (Convention on the International Sale
of Goods), PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 277,
278-279 (1990) (stating the same). 426. For this conclusion, see Ferrari,
supra note 159, at 51; for a detailed discussion of the concept de
quo under the 1964 Hague Conventions, see Herber, supra
note 166, at 9. 427. For this conclusion, see also Czerwenka,
supra note 194, at 147; Herber, supra note 120, at 50;
Heuzé, supra note 177, at 6. 428. This has already been pointed out by several
authors; see, e.g., Frank Diedrich, Anwendbarkeit des
Wiener Kaufrechts auf Softwareüberlassungsverträge, RECHT DER
INTERNATIONALEN WIRTSCHAFT 442, 446 (1993); Ferrari, supra note 85,
at 930-931; Herber, supra note 120, at 50. 429. For this conclusion, see also Herber &
Czerwenka, supra note 43, at 16; Philippe Kahn, La Convention de
Vienne du 11 avril 1980 sur les contrats de vente internationale de
marchandises, REVUE INTERNATIONAL DE DROIT COMPARÉ 951, 956
(1981); Magnus, supra note 156, at 35. 430. See also Bernardini, supra note 21,
at 85 (stating that "goods" in the sense of the CISG are only "corporeal
moveable goods"); Enderlein et al., supra note 48, at 42 (stating the
same); Endler & Daub, supra note 330, at 602 (stating the same);
Herber, supra note 120, at 50 (stating the same); Hoyer, supra
note 199, at 38 (stating the same); Hans Hoyer, Der Anwendungsbereich des
UNCITRAL-Einheitskaufrechts, WIRTSCHAFTSRECHTLICHE BLÄTTER 70, 71
(1988) (stating the same); Samson, supra note 323, at 927. 431. See OLG Köln, August 26, 1994,
published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT
245, 246 (1995), expressly stating that "goods" in the sense of the CISG are
only "corporeal moveable goods." 432. See Honnold, supra note 25, at 101,
stating that "[m]any provisions of the Convention also make clear that the
term 'goods' (French: marchandises; Spanish: mercaderias) refers to moveable
tangible assets. A sale of land is excluded. Any possible doubt on this
point is foreclosed by numerous provisions that are incompatible with
transactions in land -- e.g., quality and packaging (Art. 35), replacement
or repair of defective parts (Art. 46), shipment and damage during transit
(Art. 46), delivery by instalments (Art. 73), preservation and warehousing
to prevent loss or deterioration (Art. 85-88)." The rationale behind the exclusion of the international sale of
immoveable property from the sphere of application of the CISG is the
potential refusal to ratify the CISG by most States which would not have
accepted a uniform law derogating their domestic law in a field controlled
by public policy considerations. For a similar reasoning, see Memmo,
supra note 6, at 193-194. 433. See Honnold, supra note 25, at 100,
stating that " 'goods' governed by the Convention must be tangible,
corporeal things, and not intangible rights. . . ." For this conclusion, see also Burghard Piltz, UN-Kaufrecht,
in HANDBUCH DES KAUFVERTRAGSRECHTS IN DEN EG-STAATEN
EINSCHLIEßLICH OSTERREICH, SCHWEIZ UND UN-KAUFRECHT 1, 10 (Friedrich
Graf von Westphalen ed., Cologne 1993). 434. See also Enderlein & Maskow,
supra note 58, at 29, stating that "[t]he goods referred to [in the
CISG] are conceived as moveable assets. . . . Hence, sales of immovable
property and legal assets (e.g., sales of industrial property rights) are
not covered by the Convention." See also Honnold, supra note 25, at 101, asserting that
"[the] conclusion that 'goods' refers to tangible, corporeal things means
that sales of patent rights, copyrights, trademarks. . .are not governed by
the Convention." 435. For this conclusion, see also Ferrari,
supra note 159, at 51; Magnus, supra note 156, at 37; Burghard
Piltz, Der Anwendungsbereich des UN-Kaufrechts, ANWALTSBLATT 57, 59
(1991). 436. See OLG Koblenz, September 17, 1993,
published in RECHT DER INTERNATIONALEN WIRTSCHAFT 934, 936
(1993). 437. For this conclusion, see Ferrari,
supra note 159, at 52; Honnold, supra note 25, at 101; Peter
Schlechtriem, Einheitliches Kaufrecht. Erfahrungen mit den Haager
Kaufgesetzen -- Folgerungen für das Wiener UN-Kaufrecht, RECHT DER
WIRTSCHAFT 41, 43 (1989). 438. See, e.g., De Nova, supra note 343,
at 752; Piltz, supra note 21, at 30. 439. This view is held, for instance, by Czerwenka,
supra note 194, at 148; Diedrich, supra note 428, at 441-442;
Arthur Fakes, The Application of the United Nations Convention on
Contracts for the International Sale of Goods to Computer Software and
Database Transactions, 3 SOFTWARE L.J. 559, 582-584 (1990); Ferrari,
supra note 159, at 52; Herber & Czerwenka, supra note 43,
at 17; Herrmann, supra note 290, at 92; Karollus, supra note
226, at 380; Magnus, supra note 156, at 35; Piltz, supra note
21, at 30; Scott L. Primak, Computer Software: Should the U.N. Convention
on Contracts for the International Sale of Goods Apply? A Contextual
Approach to the Question, 11 COMPUTER L.J. 197, 214 & 217
(1991). 440. This is true, for instance, in Germany (see
Matthias Brandi-Dohrn, Die gewährleistungsrechtliche Einordnung des
Software-Überlassungsvertrags, COMPUTER UND RECHT 63, 66 (1986);
Nikolaos Tellis, Gewährleistungsansprüche bei Sachmängeln
von Anwendersoftware, BETRIEBS-BERATER 501, 501 (1990)) and the USA
(see, e.g., Horovitz, Note, Computer Software as a Good
under the Uniform Commercial Code, 65 B.U. L. REV. 129, 138 & 151
(1985); Meza, Note, Is Custom Designed Software a "Good" under Article 2
of the Uniform Commercial Code?, 3 SOFTWARE L.J. 543, 550 (1989)). 441. For this line of argument, see also
Diedrich, supra note 428, at 449; Endler & Daub, supra
note 330, at 603; Ferrari, supra note 85, at 931-932; Piltz,
supra note 21, at 30. 442. OLG Köln, August 26, 1994, published
in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 245, 247
(1995). 443. Id. 444. Id. 445. See, apart from the authors quoted in note
432, Ferrari, supra note 159, at 54; Karollus, supra note 59,
at 380. 446. For this conclusion, see, e.g.,
Honnold, supra note 25, at 102, stating that "the Convention would
apply to an international sale of a mobile building even though the buyer
might decide to affix it permanently to his land." For similar statements, see also Magnus, supra note 156, at 36;
Memmo, supra note 6, at 194. 447. See Herber, supra note 120, at 51;
Herber & Czerwenka, supra note 43, at 17; Karollus, supra
note 59, at 21; Magnus, supra note 156, at 36. 448. See Arbitral Award of the Hungarian Chamber
of Commerce, December 20, 1993, reported in Witz, supra note
68, at 33. For a comment on this award, see Aleksander Vida, Keine
Anwendung des Kaufrechtsübereinkommens bei Ubertragung des
Geschaftsanteils einer GmbH, PRAXIS DES INTERNATIONALEN PRIVAT- UND
VERFAHRENSRECHTS 52 (1995). For a detailed discussion of the question whether the international sale
of an enterprise is governed by the CISG, see Hanno Merkt,
Internationaler Unternehmenskauf und Einheitskaufrecht, ZEITSCHRIFT
FÜR VERGLEICHENDE RECHTSWISSENSCHAFT 353 (1994). 449. For this affirmation, see also Diedrich,
supra note 428, at 443 & 446. 450. This view is also held by Kahn, supra note
19, at 692. But see Garro & Zuppi, supra note 389, at 78-79,
favoring the recourse to domestic definitions to determine what must be
considered "goods" in the sense of the CISG. (. . .)
[Implied exclusion of the CISG and choice of the applicable law]
Party autonomy also played a very important role under the ULIS. A comparison of Article 6 CISG and its "direct predecessor," [603] Article 3 ULIS, could even lead to
the conclusion that under ULIS party autonomy was more widely recognized, [604] since the ULIS expressly stated that its exclusion
could also be made implicitly. [605] However, this
provision was later criticized. [606] Therefore, the
express reference to the possibility of an implicit exclusion was not
retained by the CISG, [607] even though at the Vienna
Conference a proposal to reintroduce that express reference was made. [608] However, this does not mean that under the CISG the
exclusion always has to be made expressly. [609] This is
evidenced, inter alia, [610] by the fact that
"the majority of delegations was . . . opposed to the proposal
according to which a total or partial exclusion of the Convention could only
be made 'expressly.'" [611] Consequently, the lack of
express reference to the possibility of an implicit exclusion must not be
regarded as precluding such possibility. Rather it has a different meaning:
"to discourage courts from too easily inferring an 'implied' exclusion or
derogation.'' [613] Therefore, an implicit exclusion must
be regarded as possible, but there must be clear indications that such an
exclusion is really wanted, [614] that is, there must be
a real -- as opposed to a theoretical, fictitious or hypothetical --
agreement of exclusion, [615] not unlike under the ULIS.
[616] This is not a merely theoretical problem, as evidenced by the variety of
implicit exclusions used in international commerce. A typical [617] form of implicit exclusion is represented by the
parties' choice of the applicable national law. [618]
There is no doubt that such a choice must be considered as being an
effective exclusion of the CISG, at least where the applicable law chosen by
the parties is the law of a non-Contracting State. [619]
This was true under the ULIS as well. [620] The choice of the law of a Contracting State as the law to govern the
contract poses more difficult problems. [621] For
instance, is the Vienna Sales Convention applicable when the parties agree
upon American law being the proper law of their contract? In similar
situations, it has been suggested by legal writers as well as in a
recent Italian arbitral award [Ad hoc Arbitral Tribunal, Florence
19 April 1994], [622] that the indication of the law
of a Contracting State ought to amount to an (implicit) exclusion of the
Convention's application, because otherwise the indication of the parties
would have no practical meaning. [623] However, under the
CISG, not unlike under the ULIS, [624] this solution is
not tenable. [625] The indication of the law of a
Contracting State, if made without particular reference to the domestic law
of that State, [626] does not exclude the Convention's
application, [627] as recently confirmed by several
German court decisions [OLG
Köln 22 February 1994; OLG Koblenz 17 September 1993;
OLG Düsseldorf 8 January
1993]. [628] And this is true even where the law of a
Contracting reservatory State is chosen as the applicable law. [629] The application of the Convention does not make the national law
irrelevant, as suggested; the indication of the law of a Contracting State
must be interpreted as both making the CISG applicable (as part of the
chosen law) and as determining the law applicable to the issues not governed
by the Convention itself, such as the validity issues, [630] thus avoiding resort to the complex rules of private
international law in order to determine the law applicable to the issues not
governed by the CISG. [631] Nevertheless, if under the 1964 Hague Conventions the parties have
established practices between themselves according to which the reference to
the law of a Contracting State had to be interpreted as an exclusion of the
Uniform Sales Law, the parties' reference to a Contracting State of the 1980
Vienna Sales Convention can also be interpreted as an implicit exclusion of
the foregoing Convention. [632] (. . .)
(. . .)
603. Bonell, supra note 593, at 17. 604. This has already been pointed out by Carbone &
Luzzatto, supra note 123, at 132. 605. See supra note 590 for the text of Article
3 ULIS. 606. See Ferrari, supra note 159, at
112. 607. See Samson, supra note 323, at
931. 608. The representatives of both England and Belgium
made proposals to reintroduce a reference to the possibility of implicitly
excluding the Convention's application; for a reference to these proposals,
see Herber, supra note 590, at 83-84; OFFICIAL RECORDS OF THE
UNITED NATIONS CONFERENCE, supra note 21, at 85-86 & 249-250;
Schlechtriem, supra note 187, at 22 n.98. 609. This conclusion, admissibility of an implicit
exclusion, is favored by most legal scholars; see, e.g.,
Audit, supra note 38, at 38; Carbone & Luzzatto, supra
note 123, at 132; Czerwenka, supra note 194, at 170; Samuel K.
Date-Bah, The United Nations Convention on Contracts for the
International Sale of Goods, 1980: Overview and Selective Commentary, 11
REV. GHANA L. 50, 54 (1979); Ferrari, supra note 159, at 113; Garro
& Zuppi, supra note 389, at 98; Herber & Czerwenka,
supra note 43, at 42; Hoyer, supra note 199, at 41; Lacasse,
supra note 389, at 37; Magnus, supra note 647, at 126; Barry
Nicholas, The Vienna Convention on International Sales Law, 105 LAW
Q. REV. 201, 208 (1989); Reinhart, supra note 139, at 27; Richards,
Note, supra note 147, at 237; Schlechtriem, supra note 187, at
21; Winship, supra note 122, at 1.35; Witz, supra note 592, at
108. See Rosett, supra note 99, at 281, where the author
criticizes the draftsmen who, although they foresaw the problems which the
lack of an express reference to the possibility of implicitly excluding the
Convention would cause, "chose to provide little guidance." Id. 610. In support of the thesis that maintains that
the Vienna Sales Convention can also be excluded implicitly, it can be
argued that the recognition of such possibility corresponds to a general
trend in international conventions. Article 7(1) of the 1985 Hague
Convention on the Law Applicable to Contracts for the International Sale of
Goods (reprinted in 24 INT'L LEGAL MAT. 1573 (1985)), for instance,
lays down the rule according to which the Convention can be implicitly
excluded. The same is true as far as the 1980 EEC Convention on the Law
Applicable to Contractual Obligations is concerned; for a reference to these
conventions in discussing the issue de quo, see also Honnold,
supra note 25, at 128. 611. Bonell, supra note 590, at 52. For the proposal mentioned in the text, see OFFICIAL RECORDS OF
THE UNITED NATIONS CONFERENCE, supra note 27, at 86 &
249-250. 612. However, several authors have argued that in order
to be effective, the exclusion of the Convention's application must be
explicit; see, e.g., Isaak Dore & James E. Defranco, A
Comparison of the Non-Substantive Provisions of the UNCITRAL Convention on
the International Sale of Goods and the Uniform Commercial Code, 23
HARV. INT'L L.J. 49, 53 (1982), stating that "unlike the U.C.C. . . . the
Convention does not seem to recognize implied agreements which exclude the
application of the Convention. The Convention may therefore govern contracts
which the parties by their implied agreement might have assumed to be
governed by domestic law." For a similar conclusion, see also Dore, supra note 215, at
532; Caroline D. Klepper, The Convention for the International Sale of
Goods: A Practical Guide for the State of Maryland and Its Trade
Community, 15 MD. J. INT'L LAW & TRADE 235, 238 (1991); Note,
supra note 471, at 728; Robert S. Rendell, The New U.N. Convention
on International Sales Contracts: An Overview, 15 BROOK. J. OF INT'L LAW
23, 25 (1989). 613. Bonell, supra note 590, at 55. For a similar justification of the lack of reference to the possibility
of implicitly excluding the application of the Convention, see also
OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at
17 (stating that "[t]he second sentence of the ULIS, article 3, providing
that 'such exclusion may be express or implied' has been eliminated lest the
special reference to 'implied' exclusion might encourage courts to conclude,
on insufficient grounds, that the Convention has been wholly excluded");
Schlechtriem, supra note 92, at 35 (stating that "[i]n contrast to
Article 3 sentence 2 of ULIS, the Convention does not mention the
possibility of an 'implied' exclusion, but this does not mean that a tacit
exclusion is impossible. The intent behind deleting the word 'implied' was
to prevent the courts from being too quick to impute exclusion of the
Convention"). For similar statements, see also Ferrari, supra
note 159, at 114-115; Magnus, supra note 156, at 104; Witz,
supra note 68, at 144. 614. For a similar affirmation, see Michael J.
Bonell, La nouvelle Convention des Nations-Unies sur les contrats de
vente internationale de marchandises, DROIT ET PRATIQUE DU COMMERCE
INTERNATIONAL 7, 13 (1981) (stating that a "tacit exception may only be
admitted if there are valid indications showing the parties 'true'
intention"); Enderlein & Maskow, supra note 58, at 48 (suggesting
that there must be clear indications that an implicit exclusion is wanted);
Rovelli, supra note 146, at 105 (stating that "of course, the
determination of the applicable law can result from an implicit choice of
the parties, but it must be 'certain': this means that the intention of
implicitly excluding the Convention must be real, not hypothetical"). 615. For a similar statement, see Honnold,
supra note 25, at 128 (stating that "although an agreement to exclude
the Convention need not be 'express', the agreement may only be implied from
facts pointing to real -- as opposed to theoretical or fictitious --
agreement"). For similar statements, see also Magnus, supra
note 156, at 105. Note, however, that according to Note, supra note 471, at 749, the
possibility of implicitly excluding the Convention's application contrasts
with the need for certainty of law. 616. See BGH, December 4, 1985, published
in RECHT DER INTERNATIONALEN WIRTSCHAFT 214 (1986). 617. For this evaluation, see also Magnus,
supra note 156, at 105. 618. As far as the validity of the choice of law is
concerned, it must be evaluated on the ground of law applicable to this
issue. According to Article 2 of the 1955 Hague Convention on the Law
Applicable to Contracts for the International Sale of Goods, the electio
iuris is governed by the law chosen by the parties; the same is true
according to Article 3(4) and 8 of the 1980 EEC Convention on the Law
Applicable to Contractual Obligations. For further reference to this
problem, see Ferrari, supra note 159, at 115-116. 619. For similar statements, see, e.g., Bonell,
supra note 590, at 56 (stating that there is an "[implicit]
indication of the parties' intention to exclude the application of the
Convention, either entirely or partially, whenever they have chosen as the
proper law of their contract the law of a non-Contracting State . . .");
Carbone & Luzzatto, supra note 123, at 132 (stating the same);
Audit, supra note 38, at 39; Enderlein et al., supra note 48,
at 58 (stating the same); Garro & Zuppi, supra note 389, at 95
(stating the same); Rudiger Holthausen, Vertraglicher Ausschluß des
UN-Übereinkommens über internationale Warenkaufverträge,
RECHT DER INTERNATIONALEN WIRTSCHAFT 513, 515 (1993) (stating the same);
Magnus, supra note 156, at 105; Piltz, supra note 21, at 48
(stating the same); Sacerdoti, supra note 107, at 746 (stating the
same). But according to Honnold, supra note 25, at 129. "[w]hen the
places of business of the seller and buyer are in different Contracting
States, the applicability of the Convention mandated by Article 1(1)(a) is
not undercut when the rules of private international law point to a
non-Contracting State." 620. See Herber, supra note 602, at
20. 621. For an overview of this issue, see Magnus,
supra note 156, at 105-106. 622. See Arbitral Award, April 19, 1994,
published in DIRITTO DEL COMMERCIO INTERNAZIONALE 861 (1994). For a comment on this award, see Jacopo Cappuccio, La deroga
implicita nella Convenzione di Vienna del 1980, DIRITTO DEL COMMERCIO
INTERNAZIONALE 867 (1994), agreeing with the arbitral award which excluded
the applicability of the Vienna Sales Convention to a contract containing a
choice of law clause which made applicable the law of a Contracting State
(Italy). 623. This solution has been favored, for instance, by
Franz Bydlinski, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT IM
VERGLEICH ZUM ÖSTERRECHISCHEN RECHT, supra note 119, 48 at 48;
Karollus, supra note 226, at 381; Karollus, supra note 59, at
38-39; F.A. Mann, Anmerkung zu BGH, Urteil vom 4.12.1985,
JURISTENZEITUNG 647, 647 (1986); Walter A. Stoffel, Ein neues Recht des
internationalen Warenkaufes in der Schweiz, SCHWEIZERISCHE
JURISTENZEITUNG 169, 173 (1990); Lajos Vekas, Zum persönlichen und
räumlichen Anwendungsbereich des UN-Einheitskaufrechts, RECHT DER
INTERNATIONALEN WIRTSCHAFT 342, 346 (1987). 624. This view was predominant under the 1964 Hague
Conventions; for a reference to this view in legal writing, see,
e.g., Enderlein & Maskow, supra note 58, at 49; Herber,
supra note 602, at 21; Gert Reinhart, Dix ans de jurisprudence de
la République Fédérale d'Allemagne à propos de
la loi uniforme sur la vente internationale d'objets mobiliers
corporels, UNIFORM L. REV. 424 (1984); Witz, supra note 592, at
110. 625. This view was also expressed on the occasion of
the Vienna Conference, when a large number of delegations rejected proposals
by Canada and Belgium (for these proposals, see OFFICIAL RECORDS OF
THE UNITED NATIONS CONFERENCE, supra note 27, at 250) according to
which the domestic sales law, and not the Vienna Sales Convention, would
have to be applied whenever the parties indicated the law of a Contracting
State as the proper law for their contract. For a reference to the rejection of the foregoing proposals as argument
in favor of the view expressed in the text, see Bonell, supra
note 590, at 56; Magnus, supra note 156, at 106. 626. There is no doubt that the Uniform Sales Law's
application is excluded where the parties refer merely to domestic law; for
a similar conclusion, see Bonell, supra note 593, at 18;
Ferrari, supra note 159, at 117; Schlechtriem, supra note 92,
at 35. Consequently, where the parties state, for instance, that "the
contract is governed by American law as laid down in the U.C.C.," the
Convention's application should be considered as being excluded. For further examples of clauses that successfully exclude the
Convention's application, see B. Blair Crawford, Drafting
Considerations under the 1980 United Nations Convention on Contracts for the
International Sale of Goods, 8 J.L. & COM. 187, 193 (1988); E. Allan
Farnsworth, Review of Standard Forms or Terms under the Vienna
Convention, 21 CORNELL INT'L L.J. 439, 442 (1988); Herber, supra
note 590, at 87; Holthausen, supra note 619, at 515; David L.
Perrott, The Vienna Convention 1980 on Contracts for the International
Sale of Goods, INT'L CONTRACT LAW & FINANCE REV. 577, 580
(1980). 627. This view is shared by the majority; see,
e.g., Audit, supra note 38, at 39; Bonell, supra note
590, at 56; Farnsworth, supra note 626, at 442; Ferrari, supra
note 159, at 117; Herber, supra note 274, at 104; Herber &
Czerwenka, supra note 43, at 44; Kritzer, supra note 56, at
100-101; Plantard, supra note 299, at 321; Schlechtriem, supra
note 187, at 22; Pierre Thieffry, Les nouvelles règles de la vente
internationale, DROIT ET PRATIQUE DU COMMERCE INTERNATIONAL 369, 373
(1989); Peter Winship, International Sales Contracts under the 1980
Vienna Convention, 17 UCC L.J. 55, 65 (1984). 628. See OLG Köln, February 22, 1994,
published in RECHT DER INTERNATIONALEN WIRTSCHAFT 972 (1994); OLG
Koblenz, September 17, 1993, reported in RECHT DER INTERNATIONALEN
WIRTSCHAFT 934 (1993); OLG Düsseldorf, January 8, 1993, published
in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 412
(1993). 629. For this solution, see also Herrmann,
supra note 290, at 95; Magnus, supra note 156, at 106. Contra, in the sense that in this line of cases the CISG should
not apply, Audit, supra note 38, at 39 n.3. 630. See Article 4 of the CISG, "This Convention governs only the formation of the contract of the sale
and the rights and obligations of the seller and the buyer arising from such
a contract. In particular, except as otherwise expressly provided for in
this Convention, it is not concerned with:
(b) the effect which the contract may have on the property in the goods
sold." 631. For a similar conclusion in respect of the
consequences of the parties' choice of the law of a Contracting State as the
proper law for their contract, see Enderlein & Maskow,
supra note 58, at 49, stating that "When a state participates in the Convention, CISG can be assumed to be
part of its domestic law so that additional reference to it could be
considered as superfluous and, for the reference to make sense, as an
exclusion of the CISG. But the application of the Convention does in no way
make the application of the other parts of the national law irrelevant. . .
. Therefore, it must be recommended to the parties to determine the national
law that is applicable in addition to the Convention . . . so that they can
avoid the uncertainties involved in determining that law, using the
conflict-of-law norms." 632. For this solution, see Ferrari,
supra note 159, at 118; Holthausen, supra note 619, at
516.
(. . .)
FOOTNOTES
[Article 6]
FOOTNOTES
(a) the validity of the contract or of any of its provisions
or of any usage;
Pace Law School Institute of International
Commercial Law - Last updated August 11, 1999
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