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Reproduced with permission of 71 Rabels Zeitschrift für ausländisches und internationales Privatrecht (January 2007) 99-114

CISG and a European Civil Code

Some Reflexions

By Ewoud Hondius, Utrecht

  1. Introduction
  2. The Predecessors of CISG; LUF and LUVI
  3. CISG: France and the Socialist States Versus the -- Rest of the World
  4. The European Consumer Sales Directive
  5. Von Bar's Dream: The Study Group on a European Civil Code
  6. Common Frame of Reference: From Civil Code to Auto Manual for Legislators
  7. OHADA: Le Défi Africain
  8. Some Concluding Observations

I. Introduction

This paper addresses the interaction between the Convention on the International Sale of Goods (hereinafter "CISG" or "the Convention") and a possible future European Civil Code and its predecessors. In particular it will focus on some tensions between CISG and two existing European instruments of harmonisation: the Directive on Consumer Sales and the Principles of European Contract Law (as well as its sequel on sales contracts drafted by the Study Group on a European Civil Code). I will include some reflections based on my personal or near-personal experience with these projects: first with the predecessors of CISG: LUF and LUVI (II.), then with CISG itself (III.), followed by the European Consumer Sales Directive (IV.), the von Bar Study Group (V.), the Common Frame of Reference (VI.) and an African alternative (VII.). In all of these I have been personally involved, although in [page 99] some cases only marginally.[1] I will conclude this paper with some final observation (part VIII.).

II. The Predecessors of CISG: LUF and LUVI

The Vienna Sales Convention can be described as one of the great efforts at harmonisation of private law on a global level. Its worldwide acceptance by, at present, sixty-seven states is all the more remarkable, if one considers its historical record. Its two predecessors (1964), the Loi uniforme sur la vente internationale des objets mobiliers corporels (LUVI) and the Loi uniforme sur la formation des contrats de vente internationale des objets mobiliers corporels (LUF),[2] never achieved the success of the Vienna Sales Treaty. On at least three points, LUF and LUVI have led to sometimes acrimonious debates.

Hardly had the two Conventions been promulgated, when a bitter row broke out within the Netherlands which is exemplary of that era: should LUF and LUVI, for the purpose of which the Netherlands had hosted a diplomatic conference, be ratified, or should support be given rather to the Hague Conference Treaty on Private International Law relating to Sale of Goods, the Netherlands having equally hosted the Hague Conference of Private International Law? The conflict between proponents of a harmonisation of substantive law and of a harmonisation of private international law within the Dutch Ministry of Justice, which was fought out in public, was finally won by the LUF/LUVI lobby. It illustrates the warlike atmosphere between the two camps of the previous generation.[3] At present, though, the war has all but ceased. Both camps agree that harmonisation of substantive law is the better idea, but that it will never be achieved completely: national differences will subsist, and thus private international law remains necessary to determine which law is to be applied. Private international law being of a domestic nature, harmonisation of these rules is in itself a useful exercise. [page 100]

This brings us to the second area of discussion, namely whether CISG is of a civil law or a common law nature. To the civilian observer, CISC seems to have a distinct common law flavour, with notions inspired by the common law tradition such as anticipatory breach and fundamental breach. On the other hand, common law observers will object to the notion of good faith, even if it is merely an aid to interpretation. One of the major achievements of CISG has been the bridging of the gap between common law and civil law. In the case of LUF and LUVI, the token participation of the United Kingdom -- one of the two remaining adherents -- already indicated that the text was not wholly alien to a common law jurisdiction. The ratification of CISG by a number of common law nations has further demonstrated the acceptability of the instrument to both camps.

Surprisingly, the third and most important debate generated by LUF and LUVI has been that of North versus South. Developing nations had objected to these two instruments on the ground that they seemed to favour the buyer of raw products and the seller of finished products. Because developing nations are mostly in the position of selling raw products and buying finished products, they felt that they had been treated unfairly. The conflict was only resolved, through the efforts of UNCITRAL, with the establishment of an entirely new treaty: the Vienna Sales Convention. In essence, CISG is the clear successor of LUF and LUVI, which should therefore be given due credit for their important role as quartermaster of CISG.

III. CISG: France and the Socialist States Versus the -- Rest of the -- World

Although the Vienna Sales Convention has been very successful in overcoming the three obstacles mentioned above, several other questions have surfaced. For example, there is one particular discussion that I wish to mention, which may be seen as emanating not from the North-South, but from the East-West divide. One of the inconsistencies of CISG, according to some authors, is the conflict between Arts. 14 and 55 concerning the question whether in the absence of a fixed price a valid sales contract can be formed. Article 14 seems to provide a negative answer to this question, Art. 55 a positive one. Why did the draftsmen of the Convention not notice this rather obvious inconsistency? In truth, they did, but failed to solve it due to the voting rules and the fact that not all countries took part in all deliberations. First, there was much opposition to the present text of Art. 14. Amendments to sec. 1 had been submitted by Austria, Norway, the United Kingdom and the United States. The article was retained nonetheless. This was due to an alliance between France and the -- then -- socialist countries. For a socialist country, a contract without a fixed price did not fit well into a planned [page 101] economy and was, therefore, to be rejected. For France, the possibility for courts to intervene in unfair contracts at that time was based on the invalidity of contracts without a fixed price; thus, the basis for such intervention had to be maintained -- at any price. The French delegation succeeded in convincing the francophone nations to support the French métropole on this point.[4] The adversaries failed to agree on a single counter-proposal and, in the absence of the Nordic countries -- Denmark, Finland, Iceland, Norway and Sweden did not participate in the discussions on Part II of the draft -- the proposed amendments were rejected.[5] When subsequently the present Art. 55 -- this time with the help of the Nordic countries -- was accepted, it was too late to amend the competing Art. 14, as such an amendment in the second reading required a two-thirds majority.[6] The resulting inconsistency has led to conflicting judicial decisions, which lead us to two questions: one of interpretation and one of infrastructure. The former revolves around the following point. Now that most socialist countries have turned into free-market economies, the raison d'être for their antagonism towards the Austrian amendment to the present text of Art. 14 must have evaporated. Similarly, French opposition must have vanished in the view of later case-law of the Cour de cassation. Can it therefore be argued that Art. 14 should now give way to Art. 55? I would support such argument, but have been subjected to severe criticism on this point by a renowned expert on CISG, Ulrich Magnus, who prefers the historical approach to the more teleological or purposive approach that I would support in this case. The second question -- concerning infrastructure -- is whether or not a common court of final appeal would resolve problems such as this one. I will return to this issue under VII. below.

IV. The European Consumer Sales Directive

There are some striking similarities between CISG and the later European Directive on Consumer Sales and Associated Warranties;[7] in other ways both instruments complement each other. An example for the latter point is the [page 102] scope of application, with CISG being restricted to commercial sales and the Directive, as its title suggests, to consumer contracts. As regards similarities, both employ the notion of (non-)conformity. These comparative characteristics are not accidental. Here I would like to add a personal touch. I happened to be a member of a Committee of Experts whose assistance was sought in drawing up the final text of the Sales Directive. In an earlier version, a very broad notion of consumer had been proposed, which allowed small businesses to rely on the Directive's protection, and a notion of defectiveness was used, which brought the Directive more in line with the Product Liability Directive than with CISG. On both points, the experts objected, and successfully so. Even if there may have been political sympathy with the proposal to extend consumer protection to small businesses, this was not to be done by employing terminology that would make the Consumer Sales Directive inconsistent with other consumer directives. Likewise, the notion of defectiveness was rejected, because it would have meant that CISG and the Directive would have made use of different notions. This might have led to problems where the contract between A and B, being of a commercial nature, would be governed by CISG, while that between B and C, being a consumer transaction, would be regulated by a national statute implementing the Directive. Fortunately, the European Commission followed the experts on these two points.

The reaction of the EU member states to the arrival of the consumer in the legal arena has been ambivalent. Some states have regarded consumer legislation as something temporary, to be dealt with by way of special legislation, and not as part and parcel of a Civil Code, which should be aere perennius and uncontaminated by such modernisms. Others have integrated the consumer notion in their general Codes. A recent example of the first approach is Italy, which has introduced a Consumer Code.[8] An example of the integration model is the 2002 modernization of the German law of obligations. In academic circles there is an ongoing debate concerning the proper position of consumer protection. In Germany, Christian Joerges has argued that European law has now reached an important turning point: either consumer protection must be further worked out into a coherent system, or it should be incorporated on an equal footing into a Civil Code.[9] Several authors have argued in favour of the first option. In France, they include Vogel,[10] in [page 103] Germany, Frotscher,[11], Rösler,[12] and Wiedenmann;[13] in Italy, Amato;[14] in Lithuania, Ravlusevicius;[15] and in the Netherlands, Van Boom.[16] Personally. I have a strong preference for the second solution, which keeps an important part of civil law in the general Civil Code and contributes to an acceptance of the idea that contract law is no longer exclusively governed by freedom of contract.[17] In Austria this position is taken by Lurger,[18] in Germany by Zimmermann,[19] in Hungary by Vékás,[20] in Slovakia by Rak and Cupanikova,[21] and in Spain by Cámara Lapuente.[22] The Study Group on a European Civil Code -- discussed under V. below -- has also expressed a preference for the latter solution. It regards consumer legislation as something which is here to stay, especially on the European level where there is so much regulation of consumer protection. Since it has to do with everyday relations between citizens, a Civil Code seems the natural place to regulate it. [page 104]

V. Von Bar's Dream: The Study Group on a European Civil Code

In 1997, under the then Dutch presidency of the European Union (EU), a conference on a European Civil Code was held in Scheveningen, the seaside resort of The Hague. Although the conference was not in favour of drafting a European Code that is to be binding upon all EU member states, it is precisely this possibility that Christian von Bar has now set out to investigate. The Study Group which von Bar has established includes several members of the former Lando Commission. He also succeeded to secure sufficient funds to establish a number of teams of young researchers in Germany and in the Netherlands.[23] By 2006, the first results have been published,[24] with more to come. One of the projects not yet finished concerns the law of sale.

There is little doubt that a Civil Code without provisions on sales law is unthinkable in the continental European tradition.[25] How can the most common contract be omitted from any regulation which purports to have significant practical relevance? Even the common law jurisdictions in Europe have codified their law concerning the sale of goods. It seems logical, therefore, that on the European level a future Civil Code, or Restatement, should also cover this area of the law. There are two possible objections. First, supranational rules on sales law already exist and are binding on most, or even all, EU member states. All the member states have had to implement the Directive on the consumer sale of goods and associated guarantees.[26] Most states [27] have also ratified the Vienna Sales Convention on commercial sales. Is it therefore not superfluous to enact still more rules on a supranational level?

There are several arguments in favour of such rules. First, the two international instruments just mentioned do not cover all sales contracts. Purely domestic commercial sales are excluded from the scope of application of both [page 105] instruments.[28] Neither of the instruments covers sales contracts between private citizens, both national and international ones.[29] Neither of them covers the sale of real property.[30] In addition, even where one of the two texts does apply in principle, it leaves open many questions because it has failed to deal with them. Thus, for instance, the Convention leaves a number of aspects concerning commercial sales untouched. The Directive on consumer sales is even more rudimentary, dealing only with a limited number of aspects of the consumer sale of goods. Other questions concern the interpretation of the two instruments. CISG has raised many interesting questions of interpretation which, because of the absence of an internationally competent court, may remain unresolved for some time to come.

Finally, the two instruments give rise to some political issues. CISG, which finds its origins in the 1920's and 1930's,[31] may not be completely in line with present-day thinking.[32] The Directive has been subjected to criticism as to its drafting.

A second objection may be that the dividing line between sale and services has become blurred. Many sales contracts include an element of service; many contracts for services include a transfer of property. Should the functional approach, which is applied to service contracts in the project of the Study Group, not also cover sales? It is precisely due to the two international instruments mentioned above, the Consumer Sales Directive and CISG, that this does not seem to be a good idea. The part on sales law has therefore been constructed along traditional lines.

Many sales acts leave aside specific sales contracts, such as the sale of real estate, hire-purchase and distance sales. This presents us with a dilemma. On the one hand, a sale of goods title which does not deal with these subjects appears to be somewhat out of step with the real world. On the other hand, including provisions on the transfer of ownership in real property, or on the administrative control of consumer credit transactions, does not sound very appealing either. The solution is to be found in providing rules for the specific [page 106] sales contracts, but only insofar as they relate to contract law. Property aspects have been left out and reserved for a special part; the same is true for administrative aspects. The fact that property aspects have been left out is in line with the tradition of Roman law, as first espoused by Gaius. Over the last nineteen hundred years, this tradition has been firmly established in the civil law jurisdictions. Administrative aspects have not been dealt with for practical reasons. Legislation on specific sales contracts, such as hire-purchase, can be very complex. The British Consumer Credit Act, for instance, contains nearly 200 often lengthy provisions. The attempt of integrating such a great number of provisions would have resulted in a rather lopsided text.

The part on sales law within the project of the Study Group rests upon the basis of the Principles of European Contract Law, but it has also been inspired by the two main international instruments with regard to European sales law: CISG and the Consumer Sales Directive.[33] It begins with a chapter on its scope and with a number of general provisions. Section 1 provides a definition of the sale of goods (Art. 1:101) , including goods to be manufactured or produced (Art. 1:102) and barter (Art. 1:103). In Art. 1:104, a definition of "goods" is given, by means of which -- for practical purposes -- real estate is excluded. The extent to which the provisions apply to electricity, software. shares and receivables is dealt with in Art. 1:105. The general provisions set out the relationship to the Principles of European Contract Law (Art. 1:201), a definition of consumer sale (Art. 1:202) and the default status of the provisions (Art. 1:203). Chapter 2 on the obligations of the seller consists of two sections: one on delivery of the goods (sec. 1), and another on conformity of the goods (sec. 2). Chapter 3 on the obligations of the buyer has sections on payment of the price (sec. 1) and on taking delivery (sec. 2). Chapter 4 on remedies consists of sections on remedies in general (sec. 1), remedies of the buyer for lack of conformity (sec. 2) , and requirements of examination and notification (sec. 3). Chapter 5 on the passing of risk contains general provisions (sec. 1) and exceptions (sec. 2). Finally, chapter 6 is devoted to guarantees concerning consumer goods.

Two of the main participants in the sales team, Christoph Jeloschek [34] and Hanna Sivesand,[35] have written doctoral theses on the specific subjects -- [page 107] examination and notification, and remedies respectively -- that had been assigned to them.

VI. Common Frame of Reference: From Civil Code to Auto Manual for Legislators

The German experience of Gutachten und Vorschläge [36] is that these may rest for some twenty years in a Ministry's archives before they are taken up by the legislature. I am of course referring to the experiences suffered in the process of reforming the German law of obligations. According to Jürgen Basedow, such a period of reflection may be beneficial in the case of the Study Group.[37] But strangely, the Study Group's proposals had not even been published before the European Commission already expressed an interest in them. This was due to the unexpected publication on 11 July 2001 of the Commission's 'Communication of the Commission to the Council and the European Parliament on Contract Law.'[38] With this Communication, the Commission sought to start a discussion as to the desirability, feasibility and necessity of a European law of Obligations, not merely between academics but also in business circles. To this effect, the Commission first gave an overview of the present state of affairs. It then offered four options. The first of them was that one might simply do nothing, thereby leaving the conclusion of contracts to market forces, which may arrive at industry-wide model contracts for cross-border transactions. A second option was to promote the development of Principles, such as the Principles of European Contract Law compiled by the Lando Commission.[39] In this respect, the Commission saw a role for itself. One may also think of Euro-wide standard conditions in this context. A third option was the improvement of the quality of existing European regulations. The Commission mentioned two examples: the SLIM project -- 'Simpler Legislation for the Internal Market' -- and the possibility of extending the scope of application of a number of consumer protection directives to non-consumer transactions. The fourth option was the promotion of a text containing provisions on the law of obligations. Here, the Commission envisaged a directive: regulation or recommendation, the force of which could range from entirely optional to wholly mandatory. Thus, the new European rules [page 108] might conceivably exist alongside domestic law, or they might replace domestic law. Finally, the Commission did not exclude the existence of further options.

Those who read the Communication with no pre-conceived ideas may have been disappointed. Was this all there is? The Communication consisted of sixty-four pages, but forty-three of them were Annexes. In the remaining twenty-one pages, the Commission mentioned the four options, but failed to pronounce any opinion thereon. Could the Commission not have provided some guidance for the discussion? And yet, it would not have been entirely correct to adopt such a critical outlook. The major importance of the Communication is that it has put the subject of a European Civil Code on the political agenda. Until the publication of the Communication, the discussion had been almost purely academic: between partisans and antagonists of harmonisation, between those who advocated codification and supporters of a Restatement, between legal technicians and advocates of cultural identity, etc. The Communication has already succeeded in transforming the subject into a political issue, on which trade and industry, and other interested parties, will -- have to -- make their views known.

Which of the four options will be preferred by which constituencies is not difficult to imagine. The Lando Commission, just as its sister working group which drafted UNIDROIT's Principles of International Commercial Contracts, has always been in favour of a Restatement. The Study Group on a European Civil Code directed by Christian von Bar may be expected to have opted for a Code (the fourth option), but the fact that this group is the heir to the Lando Commission, and the presence in its midst of a fair number of Restatement proponents, has made a compromise between the two strands of thought plausible. Gandolfi's Academy, finally, which like the Lando Commission is quoted in the Communication, sees its avant-projet [40] as a draft codification and not as a Restatement, even if Gandolfi is not very clear as to the entry into force of his Code: "[L]e groupe de travail ne s'est pas expressément posé le problème de la voie par le truchement de laquelle l'avant-projet pourra devenir un code en vigueur pour les citoyens de l'Union européenne" (p. LVII). The key choice remains between a Code and a Restatement, and that is bound to be, a solitary legrandist notwithstanding, the major issue in academic debates. My own preference rests with a Restatement (the second option), for it would be at variance with the principle of comitas to force a code down the throats of the English and the Irish.

Some representatives of trade and industry will probably prefer the first option of doing nothing; others will look ahead and choose between Code and Restatement. Finally, it may be advisable not to opt for only one solution, but [page 109] rather to extend the scope of application of a number of directives and to simplify the chosen terminology (the final option).

The Communication has already achieved what it purported to do: it has led to a highly interesting discussion. A major event was a conference organised by SECOLA (Society for European Contract Law) in Leuven, December 2001. The volume of conference papers contains reactions to the Communication from Josef Drexl (who favours total harmonisation), Geraint Howells, Massimo Bianca (who is in charge of the chapter on the law of sale in the Gandolfi group), Christian von Bar ('Even law professors must learn to play in teams'), Mauro Bussani, Jurgen Basedow, Ugo Mattei ('The new European Code should be hard, minimal, not limited to contracts, and process-oriented'), Hans-Peter Schwintowski ('Das Europäische Zivilgesetzbuch könnte ein zweiter Baustein [after the euro, E. H.] auf dem Wege zur Verinnerlichung der Idee Europa in den Herzen der europäischen Burger sein'), Roger Van den Bergh ('Forced Harmonisation of Contract Law in Europe: Not to be continued'), Hugh Collins, Norbert Reich, Stefan Grundmann and Wolfgang Kerber, Ulrich Drobnig, Walter van Gerven, Jan Smits, Thomas Wilhelmsson, the European Consumer Law Group, and Bernard Tilleman and Bart Du Laing.[41] Other reactions have been published separately.[42]

In 2003, the European Commission by way of follow-up presented an action plan for a more coherent contract law.[43] The action plan does not provide a clear option for specific policies. But it is more transparent than the 2001 Communication on Contract Law. It proposes a "mix of non-regulatory and regulatory means". In addition to "appropriate sector-specific interventions", the Commission contemplates three further measures: "to increase the coherence of the EC acquis in the area of contract law, to promote the elaboration of EU-wide general contract terms, and to examine further whether problems in the European contract law area may require non-sector-specific solutions such as an optional instrument". In 2004, the Commission announced a further specification of the measures to be taken.[44] It now seems likely that there will be an optional instrument at least for trans-border transactions. The practical value of such an instrument may be limited at first: the [page 110] state of the Vienna Sales Convention shows that businesspeople are not always interested in taking advantage of 'neutral' international instruments. But its political importance will be great, for the instrument will serve as a stepping stone for further action.

The outcome of all this is that, at present, the Commission is seeking to establish a Common Frame of Reference by 2007.[45] This has been described as a truly European Civil Code or Restatement by some, as "a sort of auto-manual for legislators" by others. For the purpose of preparing such document, the Commission has allied itself with several groups of European academics working on harmonisation projects, including the Study Group on a European Civil Code, the Acquis Group, and the Association Henri Capitant. The Commission has started to organize regular meetings with stakeholders to provide a platform for discussion. The rules on the law of sales have already been discussed in Brussels, and the reaction has been positive. To the -- pleasant -- surprise of the researchers involved in that project, their proposals have thus already attracted great interest, even before they have been presented to the public.

VII. OHADA: Le Défi Africain

Europe is not the only part of the world envisaging a regional harmonisation of sales law. In Africa and Latin America several projects are under way. One of the most promising ones is that of OHADA -- the Organisation of former French West African states, which has also been joined by Portuguese, Spanish and even English-speaking countries of the region. With the help of UNCITRAL and the Canadian government, OHADA has set up an impressive infrastructure with a common court of cassation and a growing number of uniform acts. Television coverage of military uprisings and civil strife in that part of the world may raise doubts as to the effectiveness of these efforts, but a glance at OHADA's active website will demonstrate that there is a growing body of case-law and academic writing on OHADA's uniform instruments. A comparison of OHADA's Sales Law, which may be found in Chapter V of the Acte uniforme relatif au droit commercial general,[46] with CISG will reveal some of the shortcomings which the latter instrument undoubtedly has. Contrary to CISG, the African law not only applies to cross-border, but also to domestic, sales contracts. It provides for a uniform interpretation by a single court of last instance. And its provisions cannot be derogated from (not every commentator, however, views this as an advantage). [page 111]

One point specifically calls for our attention. Would not a regional version of CISG for Europe have the advantage that questions of interpretation -- as is the case in OHADA countries -- could be entrusted to a single court, the European Court of Justice? This question is dealt with in two German doctoral theses.[47] In his Berlin thesis, Ulrich Schroeter addresses the relationship between the uniform sales law and European community law.[48] In 1978 Professor Schlechtriem of Freiburg had famously predicted that the Hague Sales Treaties would constitute "a quarry for doctoral theses ...but dead letter for legal practice".[49] The first part of the prophecy has come true; the second part -- after the conversion of the Hague treaties into CISG -- has not. What is the relevance of CISG for European community legislation? Due to the fact that CISG and the Consumer Sales Directive complement each other, overlap is rare but it does occur. In another book, Karin Linhart analyses the failure of efforts at uniform interpretation of uniform instruments in general.[50] In the first half of the last century, treaties on uniform law traditionally contained a provision governing interpretation, but requests for the interpretation of the uniform law under this provision were reserved for member states, and not open to individual litigants. Over the last century, however, national governments have not been overly enthusiastic about this option: only one or two such requests have been recorded. Linhart has a strong preference for the preliminary procedure before the European Court of Justice. Returning to the issue of a single high court, she is of the traditional opinion that the interpretation of uniform laws is best entrusted to an international court. Schroeter challenges this contention by arguing that the European Court of Justice has no knowledge in this area, is already overburdened, and, in any event, is not competent to deal with matters that are subject to arbitration. Schroeter has convinced me in advocating the idea of 'persuasive precedent' which, given the development of data banks, should no longer be considered utopian.[51] [page 112]

VIII. Some Concluding Observations

With more than sixty ratifications, including those by six of the ten greatest trading nations -- China, France, Germany, Italy, the Netherlands, and the United States of America -- CISG is a very important text. It has had a profound influence on both domestic (e.g.. the German modernisation of the law of obligations) and supranational (e.g., the Consumer Sales Directive) legal regulation. It is no longer automatically derogated from by big business.[52] It is, however, not a holy text. Courts and doctrine should do their best to keep up with the times, both as far as technological advances (e.g., the impact of E-commerce [53]) and political developments (e.g., the downfall of the socialist regimes) are concerned.

The African example shows that it is a good idea to have regional backups. These may provide for uniform interpretation. Furthermore, such regional backups may also cover domestic transactions.

A major question is whether such international instruments should distinguish between commercial and consumer sales. My personal opinion is that consumer sales are an integral part of civil law and, where appropriate, should be regulated in the general Civil Codes. A distinction between civil and commercial transactions may be welcome on some points, but this should not lead to wholly separate regimes.

Finally, I wish to address the question of language. CISG has been drawn up in the six official languages of the United Nations: Arabic, Chinese, English, French, Russian and Spanish. Judging from the literature, one is almost led to believe that German is also one of the official languages, but that is not the case. The virtual absence of literature in Arabic, and the dearth of it in Chinese and Russian [54] may indicate that in Arabic. Chinese and Russian-speaking countries, CISG has aroused less interest. The Consumer Sales Directive and a future European Civil Code, on the other hand, have (or will have) official editions in some twenty-two languages (not twenty-seven, due to some language-sharing between member states) .Which approach is to be preferred? Or should one rather have one single language -- for example, English -- to prevent conflict between different linguistic versions? My preference [page 113] is for a multiplicity of languages, which I am certain adds to the quality of the instrument in question.[55] Moreover, one cannot be certain whether English will retain its leading status and near-monopoly in international relations in the years to come -- I just remind the reader that, as discussed under II., some forty years ago LUF and LUVI were French acronyms for international sales instruments drawn up in the Hague.

But should there be six or twenty-two languages? Here, for practical reasons my sympathy lies with the United Nations system of just six languages. That on a regional European level, these should include English, French and German is, I think, self-evident. As the fourth language, I would select Italian -- with apologies to Spain) which on the European level has contributed less than the Italians -- and, as the fifth, Polish as a representative of the Slavic languages. The sixth and final slot should be left open for Turkish, in the view of possible Turkish membership of the EU. [page 114]


1. In the case of LUF/LUVI and CISG. I have profited from (many) conversations with my colleagues Dick Fokkema, member of the Netherlands delegation at the diplomatic conference in The Hague with regard to LUF/LUVI, and Jacques Ghestin, member of the French delegation at the diplomatic conference in Vienna with regard to CISG. I have been a member of the Committee of Experts convened by the European Commission with regard to the Consumer Sales Directive, a member of the Commission on European Contract Law (Lando Commission) and of the Sales Team of the Study Group on a European Civil Code, as well as a consultant to OHADA (Organisation pour l'Harmonisation en Afrique du Droit des Affaires),

2. See RabelsZ 29 (1965) 1-223. [Note: The English acronyms for LUF and LUVI are ULF and ULIS, respectively.]

3. This reflection is based on my Comparative law class in Leyden University in the early sixties and conversations with the lecturer, the late Professor Dick C. Fokkema, who was a member of the Dutch delegation at the diplomatic conference leading to LUF and LUVI (see supra n. 1).

4. Communication to the author by Jacques Ghestin, member of the French delegation.

5. The Austrian proposition was rejected by 19 against 19 votes: J. Honnold, Documentary History of the Uniform Law for International Sales (1989) 665.

6. B. Audit, La vente internationale de merchandises (1990) 59 note 3, with other references.

7. On the transposition of the Directive in national legislation, see, Verbraucherkauf in Europa: Altes Gewährleistungsrecht und die Umsetzung der Richtlinie 1999/44/EG. ed. by M. Schermaier (2003) 547; R. Alessi et al., L'attuazione della direttiva 99/44/CE: esperienze a confronto: Europa e diritto privato 2004. 743-883, 957-988; and, Garantías en la venta de bienes de consumo/Les garanties dans la vente des biens de consommation. ed. by J. Lete Adirica (2004) 393.

8. Decreto legislativo 6.9. 2005, n. 206 "Codice del consumo, a norma dell'arricolo 7 della legge 29.7.2003, n. 229", Gazzetta Ufficiale n. 235 del 8.10.2005, Suppl. ord. n. 162.

9. C. Joerges, Europäisierung als Prozess: Überlegungen zur Vergemeinschaftung des Privatrecht, in: Festschrift (FS) für Andreas Heldrich (2005) 205-224; also published in English: Europeanization as Process: Thoughts on the Europeanization of Private Law: European Public Law 11 (2005) 62-82.

10. L. Vogel, Recodification civile et renouvellement des sources internes, in: Le Code civil 1804-2004: Livre du Bicentenaire (2004) 159, 168.

11. P. Frotsher, Verbraucherschutz beim Kaufbeweglicher Sachen (Ph.D. thesis Bayreuth, 2004) 320.

12. H. Rösler, Europäisches Konsumentenvertragsrecht: Grundkonzeption, Prinzipien und Fortentwicklung (Thesis Marburg, 2004) 247-250, 291-294.

13. K.-U. Wiedenmann, Verbraucherleitbilder und Verbraucherbegriff im deutschen und europäischen Privatrecht, Eine Untersuchung zur Störung der Vertragsparität im Verbraucher-Unternehmer-Verhältnis und den Instrumentenzu deren Kompensation (Thesis Frankfurt, 2004) 325.

14. C. Amato, Per un diritto europeo dei contratti con i consumatori: Problemi e tecniche di attuazione della legislazione comunitaria nell'ordinamento italiano e nel Regno Unito (2003) 522.

15. P. Ravlusevicius, Umsetzungskonzepte der EG-Verbraucherschutzrichtlinien (2002) 267.

16. W. van Boom, Algemene en bijzondere regelingen in het vermogensrecht: Rechtsgeleerd Magazijn Themis 2003, 297-306.

17. E. Hondius, Consumer Law and Private Law: The Case for Integration, in: Neues europäisches Vertragsrecht und Verbraucherschutz, ed. by W. Heusel (1999) 19-38.

18. B. Lurger, Grundfragen der Vereinheitlichung des Vertragsrechts in der Europäischen Union (2002) 599.

19. R. Zimmermann, Consumer Contract Law and General Contract Law: The German Experience: Curr. Leg. Probl. 58:2005 (published 2006) 415-489.

20. L. Vékás, Über die anhängige Reform des ungarischen Zivilgesetzbuches: Zeitschrift für Rechtsvergleichung, Internationales Privatrecht und Europarecht (ZfRV) 45 (2004) 65-73.

21. P. Rak/P. Cupaniková, EU-Recht -- Neuer Konsumentenschutz in der Slowakischen Republik: Eastlex 2 (2004) 38-40.

22. S. Cámara Lapuente, EU contract and consumer law: true coordination?, in: Bases de un derecho contractual europeo/Bases of a European Contract Law, ed. by S. Espiau/A. Vaquer (2003) 577-587.

23. See C. v. Bar, Die Study Group on a European Civil Code, in: FS Dieter Henrich (2000) 1-12.

24. Benevolent intervention in another's affairs, ed. by C. v. Bar (2006) 417; Commercial agency, franchise and distribution contracts (PEL CAFDC), ed. by M. Hesselink et al. (2006) 371.

25. Not to W. van der Grinten in his comments on 'Boek 7 BW', In het nu, wat worden zal: Opstellen aangeboden aan prof. mr H.C.F. Schoordijk (1991) 87, 90. The late Van der Grinten was a minimalist concerning the incorporation of subjects in the Netherlands' 1992 New Civil Code.

26. Directive 1999/44/EC of the European Parliament and of the Council of 25.5.1999 on certain aspects of the sale of consumer goods and associated guarantees, O.J. EC L 171/12.

27. Austria, Belgium, Bulgaria, the Czech Republic, Denmark (only Part III), Estonia, Finland (only Part III), France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Roumania, Slovakia, Slovenia, Spain, Sweden (only Part III). The dissenters are Cyprus, Ireland, Malta, Portugal and the United Kingdom.

28. Art. 1(1): "This Convention applies to contracts of sale of goods between parties whose places of business are in different States ..."

29. Art. 2: "This Convention does not apply to sales: (a) of goods bought for personal, family or household use ..." Art. 2 also excludes CISG from application to auctions, execution by authority of law, shares, ships and electricity. There appears to be no reason not to deal with auctions (see, for example, sec. 57 of the British Sale of Goods Act on Auctions), ships (see M. Bridge, The Sale of Goods [1997] 22), and electricity (ibid. 28).

30. Real property is not covered by the term 'goods'.

31. See R. Kunze, Ernst Rabel und das Kaiser-Wilhelm-Institut für ausländischcs und internationales Privatrecht 1926-1945 (2004) 272; and T. Utermark, Rechtsgeschichte und Rechtsvergleichung bei Ernst Rabel (Ph.D. thesis Hamburg, 2005) 317.

32. An example is the absence of separate provisions for the battle of forms, i.e., conflicting general conditions of contract -- see C. Mahé. La résolution du conflit de conditions générales: Une étude comparative (PhD thesis Utrecht, 2006).

33. The PECL have in turn also been influenced by CISC; according to Reinhard Zimmermann, "... beruhen nicht weniger als 52 von 132 Artikeln der ersten beiden Teile der Principles auf einem Vorbild im UN-Kautrecht, wobei sich jedoch vielfach Formulierungs-unterschiede und Modifikarionen finden. Besonders stark vom UN-Kaufrecht geprägt sind naturgemaß das Recbt der Leistungsstörungen und das Recht des Vertragsschlusses"; R. Zimmermann, Die Principles of European Contract Law als Ausdruck und Gegenstand Europäischer Rechtswissenschaft (2004) 36.

34. C. Jeloschek, Examination and Notification Duties in Consumer Sales Law: How far should we go in protecting the consumer? (PhD thesis Utrecht, 2004) 234.

35. H. Sivesand, The buyer's remedies for non-conforming goods: Should there be free choice or are restrictions necessary? (PhD thesis Utrecht. 2005) 264.

36. Bundesministerium der Jusriz, Gutachten und Vorschläge zur Überarbeitung des Schuldrechts I (1981), II (1981), III (1983).

37. J. Basedow, Codification of Private Law in the European Union: the Making of a Hybrid: Eur. Rev. Priv.L. 9 (2001) 35.

38. COM(2001) 398 detinitive, available online at: <http://europa.eu.int/comm/off/green/index_nl.htm>.

39. A useful compilation of this and other texts is: Fundamental Texts on European Private Law, ed. by O. Radley-Gardner/H. Beale/R. Zimmermann/R. Schulze (2003) 524.

40. Giuseppe Gandolfi (coordinateur), Code Européen des Contrats: Avant-projet 1 (2004).

41. An academic green paper on European contract law, ed. by S. Grundmann/J. Stuyck (2002) 432.

42. See, for instance, J. Laffineur, L'evolution du droit communautaire relatif aux contrats de consommation: Rev. eur. dr. consomm. 2001, 19-42; S. Weatherill, The European Commission's Green Paper on European Contract Law: Context, Content and Constitutionality: J. Consumer Pol. 2001, 339-399.

43. Communication from the Commission to the European Parliament and the Council, A more coherent European Contract Law: An action plan, Brussels 12 February 2003, COM(2003) 68 final; see D. Staudenmayer, The Commission Action Plan on European Contract Law: Eur. Rev. Priv. L. 11 (2003) 113-127.

44. See D. Staudenmayer, The way forward in European contract law: Eur. Rev. Priv. L. 13 (2005) 95-104.

45. See M. Kenny, Constructing a European Civil Code: Quis custodiet ipsos custodes? (2006) 40 (ZERP-Diskussionspapier, 2006, 2).

46. N. Hagge, Das einheitliche Kaufrecht der OHADA (Organisation pour l'Harmonisacion en Afrique du Droit des Affaires) (Ph.D. thesis Hamburg, 2004) 239.

47. A third doctoral thesis focuses on the related theme of autonomous interpretation: G. Schmid, Einheitliche Anwendung von internationalem Einheitsrecht, Die Berücksichtigung der Rechtsprechung und Literatur anderer Vertragsstaaten am Beispiel des CISG (Ph.D. thesis Augsburg, 2004) 214.

48. U. Schroeter, UN-Kaufrecht und Europäisches Gemeinschattsrecht (Ph.D. thesis Berlin, 2005) 802.

49. P. Schlechtriem, Einheitliches Kaufrecht -- wissenschaftliches Modell oder praxisnahe Regelung? (1978) 7 ("... ein Steinbruch für Doktorthcmen ... aber für die Praxis toter Buchstabe".).

50. K. Linhart, Internationales Einheitsrtecht und einheitliche Auslegung (2005) 323.

51. Schroeter (supra n. 48) 690-722.

52. See the data provided by J. Meyer, UN-Kaufrecht in der deutschen Anwaltspraxis: RabelsZ 69 (2005) 457-486.

53. H. Wulf; UN-Kaufrecht und eCommerce: Problembereiche bei der Anwendung des Wiener Übereinkommens auf Internet-Verträge (Ph.D. thesis Hamburg. 2003) 193.

54. In the early years of CISG, the German law professor Michael Will published near-annual surveys of CISG case law; at present there are the surveys of CLOUT, Pace University and Unidroit, which provide a clue as to the practical application of CISG. As far as publications are concerned, my investigations into Arabic, Chinese and Russian sources on CISG, which I conducted during a visit to the Max Planck Institute for Comparative and International Private Law in Hamburg in 2004, found these wanting.

55. This becomes apparent when one looks up two or more different linguistic versions of European regulations and directives. It is my personal experience that this approach often provides a better insight into the objectives of the European Legislature.

Pace Law School Institute of International Commercial Law - Last updated October 25, 2007
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