Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94
Martin Karollus [*]
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[Choice of law]
[Article 6]
If a contract contains a choice of law clause referring to the law of a CISG Member State, it is not clear whether the CISG is applicable. On one hand, the parties may have intended application of the CISG as part of the chosen national law. On the other hand, they may have intended to apply only the designated national law, excluding the CISG. While the parties' intent should prevail, in most cases such intent cannot be proven. Courts, therefore, are bound to develop general rules for the interpretation of choice of law provisions. The German courts, in accord with most authors,[98] favor CISG application. In their view, the mere choice of a national law does not indicate an intent to exclude the CISG [OLG Koblenz 17 September 1993; OLG Düsseldorf 2 July 1993; OLG Köln 22 February 1994].[99] While this favors CISG application, it may not favor parties who did not intend CISG application.[100] However, contracting parties can avoid this ambiguity by expressly excluding the CISG.
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* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.
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98. See Rolf Herber, Art. 6: Ausschluß, Abweichung oder Änderung durch Parteiabrede, in Kommentar zum Einheitlichen UN-Kaufrecht 13 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d ed. 1995).
99. Judgment of Sept. 17, 1993, OLG Koblenz, 1993 RIW at 934-36 (the parties chose "French law," and the court applied the CISG as part of French law); Judgment of July 2, 1993, OLG Düsseldorf, 1993 RIW at 845 (the parties did not indicate a choice of law, but the court noted that if they had chosen German law, the CISG would not apply because it was not in force in Germany when the contract was formed); Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 972. The leading decision of the Bundesgerichtshof as to ULIS and choice of law provisions is Judgment of Dec. 4, 1985, BGH, 96 Entscheidungen des Bundesgerichtshofs in Zivilsachen [BGHZ] 313 (1986).
100. See Karollus, supra note 20, at 38-39.
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[Acceptance, criteria for: commercial letters of confirmation]
[Article 18]
German law contains rather rigid principles regarding Kaufmännisches Bestätigungsschreiben (confirmation notices) which differ substantially from the laws of most other countries.[109] Under German law, a party may send to the other party a notice purportedly confirming the (alleged) content of the contract that actually deviates from the contract. If the other party does not contest this confirmation, the contract is irrefutably regarded as having the content of the confirmation note. The other party cannot argue that the contract is different from the confirmation notice or that the contract had not been formed. One gets the impression that confirmation notes are often used intentionally[110] to change the contract, and especially to enforce general conditions not agreed on before [LG Baden-Baden 14 August 1991].[111] Many foreign lawyers suspected that German courts would try to incorporate these principles into their application of the CISG.
However, German courts do not seem to decide in this manner. The OLG Köln, for example, recently stated that the confirmation notice principles do not apply under the CISG [OLG Köln 22 February 1994].[112] Failure to respond to a confirmation notice has no effect on the contract under the CISG. The notice can only be used as evidence. While the German principles on confirmation notices could be applicable as a usage under CISG Article 9, the decision of the OLG Köln shows that German courts are not prepared to accept such a usage merely because one contracting party comes from Germany.[113]
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109. For a detailed analysis of German, French, Austrian, and Swiss Law, as well as the CISG, see Michael J. Esser, Die letzte Glocke zum Geleit?, 29 Zeitschrift für Rechtsvergleichung (ZfRV) 167 (1988).
110. In fact, German courts do not recognize confirmation notices when used intentionally. Of course, it may be difficult to prove such an intention.
111. See Judgment of Aug. 14, 1991, LG Baden-Baden, 1992 RIW at 63.
112. Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 973. See Peter Schlechtriem, Kurzkommentar, 1994 EWiR 867, 868 (discussing the judgment and agreeing with its conclusion).
113. See Schlechtriem, supra note 112, at 868.
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[Modification or termination of the contract by agreement]
[Article 29]
Article 29 governs the termination or modification of the contract by mere agreement of the parties, such as a mutual respite in payment [LG Hamburg 26 September 1990] [137] or a settlement agreement [LG Aachen 14 May 1993].[138] Although Article 29 is in Part III of the CISG, the rules of Part II apply to the formation of agreements that modify or terminate a contract [LG Hamburg 26 September 1990; OLG Köln 22 February 1994].[139] Therefore, under Article 18(1), mere silence or inactivity does not amount to acceptance of an offer to terminate the contract. Nevertheless, the OLG Köln found an acceptance where the other party had not enforced the contract despite the receipt of non-conforming goods [OLG Köln 22 February 1994].[140]
Under these circumstances, the OLG Köln may have been correct. However, the general rule that silence is not an acceptance should be overruled only under exceptional circumstances that make clear the offeree's implicit acceptance. Otherwise we would reach the result that Article 18(1) is intended to prevent: an acceptance when the offeree regarded the offer only as an unacceptable nuisance and therefore did not see any reason to answer.
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137. Judgment of Sept. 26, 1990, LG Hamburg, 1991 IPRax at 402.
138. Judgment of May 14, 1993, LG Aachen, 1993 RIW at 761.
139. Judgment of Sept. 26, 1990, LG Hamburg, 1990 IPRax at 402; Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 973.
140. Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 973.
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[Time for examining the goods: issues in this case and in other German cases]
[Article 38]
The courts have tried to define the requirements of a proper examination. For example, a proper examination will allow: the buyer of shoes to discover that they are losing color and that the workmanship is bad [LG Stuttgart 31 August 1989],[167] the buyer of shirts to discover that the style is not correct [OLG Düsseldorf (6 U 32/93) 10 February 1994],[168] and the buyer of pickled cucumbers to discover that the quantity is not correct [OLG Düsseldorf 8 January 1993].[169] Generally, the examination must be made when the goods arrive at the place of delivery. However, if the seller knew that the goods were to be redirected, the examination can be deferred until the goods have arrived at their final destination under Article 38(3) [OLG Köln 22 February 1994].[170] Under Article 6, the parties can agree to substitute other examination requirements for these default rules [OLG Düsseldorf 8 January 1993].[171]
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167. Judgment of Aug. 31, 1989, LG Stuttgart, 1990 IPRax at 317.
168. Judgment of Feb. 10, 1994, OLG Düsseldorf, 199S RIW at 55.
169. Judgment of Jan. 8, 1993, OLG Düsseldorf, 1993 RIW at 325.
170. Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 973.
171. Judgment of Jan. 8, 1993, OLG Düsseldorf, 1993 RIW at 325; Ulrich Magnus, Zum räumlich-internationalen Anwendungs bereich des UN-Kaufrechts und zur Mängelrüge, 1993 IPRax 390, 391-92 (1993).
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Pace Law School
Institute of International Commercial Law - Last updated July 6, 1999
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