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Reproduced with permission from the author and 15 Journal of Law and Commerce (1995) 1-126

Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing

Franco Ferrari [*]

Editor's Note

For each of the last ten years, the Dutch Association of Civil Law has invited two scholars to write reports on the status of a particular branch of the civil law. These reports are submitted to the Dutch Supreme Court, where they are discussed by members of the Court, lawyers, and law professors. The topic of the 1995 reports was the 1980 Vienna Sales Convention (CISG). One of the scholars selected to write on this topic was Professor Franco Ferrari, Professor of Comparative Law at Tilburg University in the Netherlands. His report, in English, was submitted on December 4, 1995 and discussed at the Dutch Supreme Court on December 15, 1995. The Journal of Law and Commerce is pleased to publish Professor Ferrari's report. It is here reprinted as submitted to the Dutch Supreme Court, with only minor technical changes (e.g., to reflect capitalization and citation-form practices in the United States).

[Table of Contents omitted]

I. Introduction

1. Historical Remarks

If it is true, as it has been suggested not only by legal writers, [1] but, at least impliedly, also by the drafters of international conventions, [2] that the unification of the law governing transnational commerce promotes certainty of law and, thus, the flow of international trade, [3] then it cannot surprise that efforts have long been under way to unify the law [4] of what is considered as being the "mercantile contract par excellence" [5] and therefore "the pillar of the entire system of commercial relations," [6] i.e., the sales contract. The idea was to create a uniform sales law which would overcome the merchants' worst enemy, i.e., national borders [7] which constituted (and still constitute) "an obstacle to economic relationships which constantly increases among citizens of different countries; an obstacle above all for the enterprises that are involved in international commerce and that acquire primary resources or distribute goods in different countries which all have different law."[8] [page 4]

As far as the sales law is concerned, the need to "create an internationally uniform discipline for cases linked to a plurality of countries" [9] designed to "transcend national borders in order to maximize the utilization of resources" [10] was recognized as early as in the 1920s, [11] when it was suggested by Ernst Rabel to start with the work for the unification of the law of international sales of goods. [12] Upon this suggestion, the International Institute for the Unification of Private Law, UNIDROIT, [13] one of the international bodies promoting the unification of (commercial) law, [14] decided to undertake extensive studies in this field which led, in 1935, to the [page 5] first draft of a uniform law on the international sale of goods. [15] After World War II, which had interrupted the aforementioned efforts, [16] work resumed with a conference at The Hague in 1951. [17] Thereafter, other drafts followed, [18] the last of which was discussed at the Diplomatic Conference held at The Hague in April 1964. The twenty-eight participating States approved two conventions, creating the Uniform Law on the International Sale of Goods [hereinafter: ULIS] [19] and the Uniform Law on the Formation of Contracts for the International Sale of Goods [hereinafter: ULF]. [20] [page 6]

These laws not being as successful as expected [21] -- they came into force only in nine Countries [22] -- led the United Nations Commission on International Trade Law, UNCITRAL, [23] constituted in 1966 with the task of promoting the progressive harmonization and unification of the law of international trade, [24] to attempt the revision of the Hague Uniform Laws. But when it became apparent that a revision would not be successful without substantial modifications, a Working Group was [page 7] established with the task of drafting a new text. [25] Several drafts were proposed, the last of which -- dating back to 1978 [26] -- was the one upon which the General Assembly of the United Nations authorized the convening of a diplomatic conference, held from March 10 to April 11, 1980 in Vienna. [27] On that occasion, the convention which is officially known [28] as the "United Nations Convention on Contracts for the International Sale of Goods" [hereinafter: CISG] was approved. [29] It entered into force on January 1, 1988.

2. The Need for a Uniform Application of the CISG as Justification for this Paper

In order to create uniformity, it is, however, not sufficient to create and enact uniform laws, [30] such as the aforementioned CISG, since the [page 8] same uniform law can still be interpreted and, thus, applied differently by the judges of different countries. [31] The first step to be taken to minimize the danger of diverging interpretations and, thus, non-uniformity in the application of uniform law, is to reject the thesis according to which "by virtue of national proceedings, the [uniform law] conventions transform themselves into domestic law and therefore their interpretation and integration must take place according to the interpretive techniques ... of the domestic legal system in which they are transplanted and will be applied." [32] This means, above all, that one should not have recourse to domestic interpretive techniques to solve interpretive problems, [33] and that one should not read international uniform law through the lenses of domestic law. [34] On the contrary, in the interpretation of international uniform law, as expressly stated in Article 7(1) CISG, [35] as well as in many other recent international uniform law [page 9] conventions, [36] "regard is to be had to its international character and to the need to promote uniformity in its application." [37]

On the one hand, this means that one must interpret international uniform law "in an autonomous manner," [38] i.e., in its interpretation one should not resort to the meaning one generally attaches to certain expressions within the ambit of a particular system, [39] since this "nationalistic approach" [40] would not only lead to non-uniformity, but, ultimately, to the promotion of forum shopping. [41] Thus, even where the expressions employed in the uniform sales law (or in other uniform law conventions) [42] are literally the same as expressions which within a particular domestic legal system have a specific meaning -- such as "avoidance," "reasonable," "good faith," etc. -- they are independent from the latter, [43] since the expressions employed in uniform law conventions are [page 10] intended to be neutral. [44] Nowadays, this appears to be a basic principle of international uniform law [45] resulting, among others, from the assumption that international uniform law "does not want to identify itself with any legal system, because it wants to conjugate with all." [46] Indeed, any choice of one expression rather than another is the result of a compromise [47] and does not correspond to the reception of a concept peculiar to a specific domestic law: [48] the interpreter has therefore to be aware of what have been called faux-amis. [49]

But in view of "the need to promote uniformity in [the CISG's] application"[50] and for the reasons mentioned supra, [51] it does not suffice to consider the international uniform laws as being "autonomous bodies of rules." [52] This is why, on the other hand, regard is to be had to the practice established by other (Contracting) States in applying the uniform law.[53] The interpreter must consider "what others have already done,'' i.e., he must consider the decisions rendered by judicial bodies [page 11] of other Contracting States,[55] since it is possible that the same -- or analogous -- issues have already been examined by other States' courts, [56] in which case such decisions should have either the value of precedent -- "[i]f there is already a body of international case law," [57] or a persuasive value. [58] Apart from the recourse to foreign judicial applications of uniform law, the danger of differing interpretations can also be neutralized by resorting to the travaux préparatoires [59] as well as to doctrinal writing, [60] which in civil law countries has always been considered an instrument for interpretation of (uniform) law, [61] whereas in common law countries such as England and America, where judges have historically been reluctant to make recourse to scholarly writing, [62] this tendency appears only recently. [63] [page 12]

It is because of these considerations, as well as because of the fact that in practice taking foreign decisions -- or scholarly opinions -- into account can generate some difficulties (based upon language problems), that this paper will examine specific issues of the 1980 Uniform Sales Law in the light of both recent court decisions as well as scholarly writings, thus providing the tools for a possible uniform interpretation and application of the CISG.

3. The Scope of the Present Paper

Although only seven years have passed since the CISG's coming into force on January 1, 1988, [64] it is already possible to assert that, unlike its predecessor, the Hague Uniform Sales Law(s), it is not a failure. On the contrary, it can be considered as being one of the most successful efforts towards the creation of a uniform (international) commercial law, [65] as evidenced not only by the large number of Contracting States -- nearly fifty already [66] -- and the long list of scholarly [page 13] publications devoted to it, [67] but also by the attention paid to the CISG by courts [68] as well as by arbitral tribunals: [69] in 1994, one hundred applications of the CISG were counted, [70] a large number to which one must add several more recent court decisions [71] -- among others, [72] several Dutch decisions, [73] a French, [74] two German [75] and two Austrian [76] [page 14] Supreme Court decisions -- as well as various arbitral awards, [77] dealing with the most diverse businesses. [78]

Despite the fact that the aforementioned applications of the CISG dealt with the most diverse topics -- from the formation of contract [79] to [page 15] the foreseeability of damages [80] -- it is possible to identify three issues which have, more than others, drawn the courts' and arbitral tribunals' attention: the CISG's sphere of application (II-VI), the issue of the notification of non-uniformity of goods (VII), and the issue of interest rates (VIII).

II. The Internationality of Sales Contracts under CISG

1. The CISG and the Hague Conventions Compared

As it is known, the 1980 Vienna Sales Convention differs from the 1964 Hague Conventions in respect to various issues, [81] such as their [page 16] compilation techniques [82] -- which resulted in a shorter and simpler text of the 1980 Sales Convention, [83] because "UNCITRAL provided for the marriage of two sets of rules [ULIS and ULF] that had lived separately for over four decades." [84] The aforementioned Conventions also differ from a public international point of view: [85] whereas the Vienna Sales Convention is considered (in most countries) [86] to represent a so-called self-executing treaty, [87] that is, a "treaty where legal rules arising from the treaty are open for immediate application by the national judge and all living persons in a Contracting State are entitled to assert their rights or demand fulfillment of another person's duty by referring directly to the legal rules of the treaty," [88] the Hague Conventions were not-self-executing. [89] Thus, they "did not contain any rules on contracts. All they did was to oblige the Contracting States to incorporate the Uniform Law on the International Sale of Goods (ULIS) or the [page 17] Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) into their own domestic legislation." [90] It must also be pointed out, that the foregoing conventions differ -- although not entirely, since there are, indeed, some substantial issues which are dealt with in a analogous way, [91] such as the formation of contracts [92] -- from a substantive point of view as well, [93] as, for example, in respect to the role of trade usages and course of dealing, [94] the issue of the "battle of the forms," [95] etc. [page 18]

However, according to some authors, the most important difference between the conventions de quo "is that the [1980] Convention represents a truly global effort, with balanced representation of all the regions and economic and legal systems of the world." [96] Indeed, the 1980 Uniform Sales Law "escapes the ethnocentric perspectives and biases of any legal system," [97] unlike the Hague Conventions, "accused" of being modeled on the sole exigencies of the industrialized nations. [98]

2. The Internationality of Sales Contracts under the Hague Conventions

At first sight, the most important common feature of the 1980 and the 1964 Conventions appears to be their sphere of application, since the foregoing Conventions all apply to "international" sales contracts. [99] A closer look shows, however, that their spheres of application are [page 19] fundamentally different. [100] This is due, among others, to the very different criteria adopted by these Conventions in order to determine the internationality of a sales contract [101] (as well as to their relation with the Convention's criteria of applicability). Indeed, the Hague Conventions (as opposed to the Vienna Convention) considered as international sales [102] only those sales which presented two [103] elements of internationality: [104] a subjective and an objective one. [105] This signifies that under the Hague Conventions, unlike under the CISG, [106] the criteria employed to determine the internationality of a contract "were not only subjective, i.e., referred to the parties, but also objective, that is to say, related to specific aspects of the contractual relationship." [107] As far as the first element is concerned, the 1964 Conventions required the [page 20] parties' place of business (or, absent a place of business, their residence) [108] to be located in different States, independent from the parties’ citizenship. [109] As for the second element, Article 1(1) ULIS [110] required that "either [the] acts constituting offer and acceptance are effected in different States, or that the goods are sold during international transport or are to be transported internationally, or that the act of offer and acceptance are made in a State other than the State of the place of delivery." [111] Unlike the 1980 Sales Convention, [112] the Hague Conventions did not require any further element in order to be applicable.

But this approach has been criticized [113] for "having caused the adoption of the so-called erga omnes approach," [114] an approach [115] according to which the provisions of the 1964 Conventions had to be applied whenever the contract was considered international, [116] and even in those cases where the contractual relationships developed outside [page 21] from the territory of the Contracting States, [117] independently from the application of private international law rules [118] (which Article 2 ULIS expressly excluded). [119] To most Contracting States this approach, also defined as "universal" [120] or "universalist,"' appeared to be excessive. [122] This is why most Contracting States [123] made reservations [124] in order to limit the scope of application of the Hague Conventions. [page 22]

3. The Internationality of Contracts under the CISG

The aforementioned tendency to restrict the Convention's applicability by making reservations [125] along with the aforementioned criticism undoubtedly influenced the decision of the drafters of the CISG [126] to decide against the adoption of the objective criterion of internationality [127] and the erga omnes approach, [128] and, thus simplifying the CISG's approach. [129] Indeed, according to the CISG, the sole criterion on the grounds of which to determine the internationality of a sales contract corresponds to the subjective one of the 1964 Conventions. [130] Thus, under the CISG the internationality of a contract depends merely [131] on the parties having their places of business (or habitual residences) [132] in different States, as pointed out not only in legal writing [133] but also in court decisions [OLG Köln (Germany) 26 August 1994]. [134] But since the CISG did not adopt [page 23] the approach of the ULIS and ULF according to which the criteria of internationality constituted, at the same time, the criteria of applicability, [135] the internationality of a sales contract does not suffice to make the CISG applicable. [136] Furthermore, it cannot be argued [137] that the different States in which the parties have to have their places of business in order for a sales contract to be international under CISG must also be Contracting States, [138] this being rather a criterion of applicability of the CISG rather than one of internationality. [139]

From what has been said thus far in respect of the CISG's criterion of internationality, it also results that where the "subjective international prerequisite" is missing, for example, "where the parties have their places of business in different legal units of the same Contracting State,'' [140] the Vienna Sales Convention will not be applicable per se [141] even if the contract's execution involves different States. [142] On the other hand, the CISG can be applicable even in those cases where the [page 24] goods do not cross any border [143] and where the parties have the same citizenship, [144] as long as the contract can be considered, from a subjective point of view, as being an international one. [145]

4. The "Place of Business" under CISG

Considering that ex Article 1(1) CISG the internationality of a sales contract depends on the location of the parties' places of business, [146] the importance of the definition of "place of business" is evident, and this is why it will be examined in greater detail.

A closer look at this concept is necessary, since -- unfortunately [147] -- the CISG, not unlike its predecessor, [148] has [page 25] not defined it, [149] apparently because of the lack of a uniform concept acceptable to all the delegates to the Vienna Diplomatic Conference, who suggested the most disparate definitions. [150] But despite the apparent differences in conceiving a definition of the "place of business," it is here suggested that it is possible to identify some elements which allow for a better determination of its essence, even though one must not forget that there is no general abstract definition: the "place of business" has to be defined on a case-by-case basis. [l5l]

Nevertheless, as a general rule it can be asserted that there is a place of business where there is a stable business organization [152] (or, as stated by the German Supreme Court in respect of the ULIS, where "the center of the business activity directed to the participation in commerce" is located) [153] which links the contracting party to the State where the business is conducted, [154] as long as the party has autonomous power. [155] If it is true, as it is here suggested, [156] that the [page 26] aforementioned elements characterize the concept of "place of business," it follows that places of temporary sojourn cannot be considered "places of business.'' [157] This is why one cannot consider conference centers of exhibitions [158] or hotels [159] or rented offices at exhibitions [160] as being places of business under the CISG. [161]

5. Multiple Places of Business

Although the concept of "place of business" will not cause too many problems, the exact determination [162] of the relevant place of business does, at least in those cases where a party to the contract has more than one place of business.

The Hague Conventions did not answer the question of which among several places of business was to be considered the relevant one, [163] despite the fact that it was an old dilemma. [164] This is why a dispute arose among legal scholars as to what criteria had to be used in order to solve the problem. [165] While several legal scholars favored the view according to which the relevant place of business had to be the [page 27] one where the main seat was located, [166] others suggested that the solution depended on which place of business had the closest relationship with the contract. [167]

The dispute was finally solved in 1982 by the German Supreme Court, [168] which stated that the preferred solution was the second one. Indeed, "one must not share ... the point of view according to which the decisive place of business is always the principal one." [169]

Under the 1980 Vienna Sales Convention, the dispute does not have any reason to exist, since the Convention expressly provides for a solution of the foregoing problem. According to this solution, laid down in Article l0(a) CISG, [170] the place of business relevant for the [page 28] determination of the internationality of a sales contract is the one having the closest relationship with the contract. [171] The 1980 Uniform Sales Law has, in other words, expressly rejected the so-called "theory of the principal place of business,'' [172] although the initial intent of the drafters was to the contrary. [173]

However, although Article l0(a) prevents a dispute among legal scholars as to which thesis to apply ("principal place of business theory" or "closest relationship theory"), it does not solve all the problems. [174] Indeed, quid iuris where the contract is concluded at one place of business and has to be executed at another one? [175] Of course, where the parties have agreed upon which place of business must be considered relevant, the problem will not arise, since that agreement is to be taken into account in determining the relevant place of business. [176] But where there is no agreement concerning the relevant place of business, Article l0(a) CISG creates a new problem: how to define [page 29] the "closest relationship with the contract and its execution''? [l77] In order to facilitate this task, Article l0(a) lists some elements to be taken into account in determining the relevant place of business. [178] Up to now, these elements have not yet been employed by courts, although some courts might have had reason to do so. [179] Thus, one must take into account all the circumstances known to or contemplated by the parties at any time before (or contemporaneous to) the conclusion of the contract. [180] Consequently, one is not allowed to take into consideration the circumstances which become apparent only after the contract is concluded. [181] Thus, it does not matter whether the places of business change after the conclusion of the contract. [182] Sometimes, however, the circumstances are insufficient to unequivocally determine the relevant place of business. In this line of cases it is here suggested that the international character of a sales contract be determined by resorting to the places of business involved in the conclusion of the contract, [183] since [page 30] these places of business will always be known to both parties. [184] However, where the buyer knows that the contract is performed at a place of business of the seller different than the one involved in the conclusion of the contract, the text of Article l0(a) suggests that the seller's relevant place of business is the one where the performance takes place. [185]

However, since the parties do not always have a place of business, Article l0(b) CISG provides that in such cases one has to resort to the parties' habitual residence [186] in order to determine whether a sales contract is international; [187] that is, one has to look at a situation of fact, [188] and, more precisely, the real place of sojourn for a long period of time. [189]

6. The Location of the Place of Business and the Knowledge of It

For the applicability of the CISG it is, however, not sufficient that parties have their places of business in different States, i.e., that the sales contract be an international one. Even though it is not required that the parties be conscious of the applicability -- or existence -- of the CISG, [190] its Article 1(2) [191] requires that the internationality be apparent [page 31] to both parties, [192] i.e., that the contract does not appear to be a merely domestic one. [193] In order to determine whether this prerequisite -- apparent internationality of the contract -- exists, the following objective [194] elements exhaustively [195] listed in Article 1(2) must be taken into account: the contract itself, [196] the dealings [197] between, or the information [198] disclosed by, the parties before or at the conclusion of the contract. [199] Although this "apparent internationality" requirement undoubtedly limits the sphere of application of the CISG, [200] it is essential, since it protects the parties' reliance upon the applicability of "domestic" law. [201] From what has been said thus far, it follows, for instance, that the Convention is not applicable "... where the parties [page 32] appeared to have their place of business in the same State but one of the parties was acting as the agent for an undisclosed foreign principal." [202] As far as the burden of proof is concerned, the party invoking the impossibility of recognizing the international character of the sales contract (and, thus, the inapplicability of the CISG), carries it. [203]

III. The Criteria of Applicability of the Vienna Sales Convention

1. The CISG’s "Direct" Application ex Article l(l)(a)

As already mentioned, [204] in order for the CISG to be applicable, it is not per se sufficient that the sales contract be an international one. [205] Indeed, Article 1(1) CISG [206] also provides for two alternative [207] criteria of applicability the existence of either of which is sufficient for the Convention to be applicable [208] (provided the contract is an international one).

According to the criterion set forth in Article l(l)(a), the CISG is "directly" [209] applicable when the parties have their places of business in different Contracting States, [210] and this is true even where the parties [page 33] are unaware that the States where their places of business are located are Contracting States. [211] Thus, whenever this requirement is met and whenever the lex fori is the law of a Contracting State and the parties have not excluded the CISG, [212] it will be applicable, [213] independently from a different solution provided for by the rules of private international law. [214] On the contrary, where the parties have their places of business in different Contracting States, but the forum is one of a non-Contracting State and its rules of private international law lead to the application of either the law of the forum or the law of a non-Contracting State, the CISG will not be applicable [215] per se. [216]

Even though the CISG has not yet been applied too often by virtue of this criterion, [217] this is very likely to change in the future, with the list of Contracting States still growing. [218] [page 34]

Unlike the criterion which will be mentioned infra, [219] this criterion of applicability generally causes no problems. [220] Problems may, however, arise in respect to whether a State must be considered a Contracting State or not. [221] It is commonly understood that all States can be deemed Contracting States once they have either ratified, approved or accepted [222] or acceded [223] to the Convention [224] and once a specific period of time -- fixed by the CISG itself -- has elapsed. [225] However, as far as the applicability of Part II (Formation of Contracts) of the Convention is concerned, it presupposes that a State be a Contracting one before the offer is made, [226] i.e., "it is not sufficient that a sales contract be concluded after the Convention enters into force for the Contracting [page 35] States concerned," [227] as recently pointed out by an Italian Supreme Court decision [Kretschmer GmbH & Co. KG v. Muratori Enzo, Corte di Cassazione 24 October 1988]. [228] [citing as well other judicial affirmations of CISG Article 100(1)]

For the applicability of Part III (Rights and Obligations of Buyer and Seller), it is sufficient that either the Contracting States referred to in Article l(l)(a) or the Contracting State referred to in Article l(l)(b) entered the CISG into force at a date not later than that of the conclusion of the contract. [229] This does not mean, however, that "it will suffice that the statement of acceptance has reached the offeror after the entry into force of the Convention." [230] A similar statement would be correct only in respect of cases where the law governing the formation of contracts is governed by the so-called "theory of reception,'' [231] according to which "[t]he contract is not concluded until the declaration of acceptance has reached the offeror in such a way as to enable him to take cognizance of it." [232] Where, however, the law applicable to the formation of contracts is based upon the "mail-box-rule," [233] the CISG must already be in effect at the moment the acceptance is mailed in order for Part III of the Convention to be applicable. [234]

With reference to the concept of "Contracting State," it must also be pointed out that where a State declares itself not bound by Part II [page 36] or Part III of the CISG, it cannot be considered a Contracting State in respect to the Part which has been excluded. [235] Consequently, it is possible that a sales contract concluded between two parties having their places of business in two Contracting States one of which has made a declaration according to Article 92 is governed partly by the rules of the CISG and partly by the rules of domestic law, even in respect to issues normally all governed by the CISG, [236] a situation which certainly does not favor uniformity, but, on the contrary, dépeçage and its negative consequence. [237]

2. The CISG's "Indirect" Application ex Article l(l)(b)

The applicability of the CISG is, however, not necessarily excluded where the parties do not have their places of business in different Contracting States. [238] By virtue of what has been defined as a [page 37] "classical solution," [239] provided for by Article l(l)(b) CISG, [240] the CISG can be applicable even where one or both parties do not have their places of business in Contracting States, [241] provided that the rules of private international law lead to the application of the law [242] of a Contracting State. [243] Consequently, where the lex fori is the law of a [page 38] Contracting State in which the rules of private international law of sales contracts are based upon the 1980 EEC Convention on the Law Applicable to Contractual Obligations, [244] as in the Netherlands [245] and other European countries, [246] the CISG will generally be applicable when the law either chosen by the parties or, absent choice of law, that [page 39] having the closest connection with the contract, [247] is the law of a Contracting State. [248]

As far as the EEC Convention's recognition of party autonomy (in the sense of choice of law) is concerned, [249] its employment should not raise any problems, it being a concept universally recognized throughout domestic private international law codifications long before the EEC Convention's coming into force. [250] This is why its application to international sales contracts does not cause too many difficulties, [251] as evidenced by the fact that several courts have already relied upon the parties' choice of law to make the CISG applicable ex Art. l(l)(b) [See for example, OLG Düsseldorf (Germany) 8 January 1993]. [252] [page 40]

Absent choice of law, [253] the EEC Convention makes applicable the law of the country with which the contract is most closely connected, [254] as pointed out by several court decisions [See most recently, Rb Amsterdam (Netherlands) 5 October 1994]. [255] And since it is presumed that the contract is most closely connected with the country where the party who is to effect the contract's characteristic performance [256] has its place of business [257] -- and since "the obligation to pay money ... is not the characteristic performance" [258] -- the law applicable to international [page 41] sales contracts is generally [259] the law of the seller, who has to execute the characteristic performance consisting of the delivery of the goods [many judicial citations provided], [260] as emphasized not only by legal scholars, [261] but also by various court decisions [many judicial citations provided], [262] among others, several Dutch ones [See most recently, Rb Amsterdam 5 October 1994], [263] as well as by various arbitral awards [See, e.g., ICC Arbitral Award 7197 of 1992]. [264]

From what has been said thus far, one general rule can be set forth: provided that the parties have not excluded the CISG and that no electio iuris occurred, the CISG should be applied in the courts of [page 42] Contracting States -- which did not limit the scope of Article l(l)(b) by means of an Article 95 reservation [265] -- at least to all international sales contracts involving a seller who has its place of business in a Contracting (non reservatory) [266] State. [267]

Thus, Article l(l)(b) (which some authors consider to be superfluous [268] as well as open to criticism [269]) extends the CISG's sphere of application which otherwise would have been too restrictive, [270] but without going as far as its predecessor, the 1964 Hague Conventions. [271] Furthermore, the CISG's approach has another advantage: it coordinates the rules of the CISG with those of private international law, [272] a coordination which had not been provided for by the Hague Conventions which expressly excluded the applicability of the conflict of laws rules [OLG Köln (Germany) 2 October 1992]. [273] [page 43]

3. The Impact of the Article 95 Reservation on the CISG’s Applicability

As already mentioned, the CISG's "indirect" application has been criticized, [274] mainly so, by so-called Socialist countries, [275] which "wanted to avoid the excessive restriction of the applicability of their domestic statutes governing the relationships with foreign parties," [276] and by the United States. As a consequence of such criticism, [277] the drafters of the CISG provided for a reservation clause, Article 95 CISG, [278] which gives the Contracting States the option not to enforce Article l(l)(b). [279] But what impact does this reservation have on the "indirect" applicability of the CISG? [280] Several lines of cases must be distinguished.

(A) It has been argued, that where the forum is located in a reservatory State the rules of private international law of which lead to the applicability of the law of a Contracting State (whether independently [page 44] reservatory or not), the CISG will not apply, [281] since the Contracting reservatory States are bound to apply the CISG only where both parties have their places of business in Contracting States [282] (reservatory or not). [283] It is certainly true, that in this line of cases the courts of reservatory States do not have to apply the CISG by virtue of Article l(l)(b). This does not mean, however, that the CISG cannot apply. Indeed, it is here suggested [284] that even the courts of a reservatory State should apply the CISG in the aforementioned line of cases—of course not by virtue of Article l(l)(b), but as part of the law of the Contracting State to which the conflict of law rules lead. [285] There is, however, a limit: if it is true, as it has been suggested, [286] that the rationale behind the possibility of the Article 95 reservation is to promote the application of domestic statutes, it must be concluded that in cases where the forum is located in a Contracting reservatory State whose private leads to the law of the forum, the CISG shall be inapplicable. [287]

(B) There is a dispute in another line of cases, as well: quid iuris where the forum is located in a Contracting non-reservatory State the rules of private international law of which lead to the applicability of [page 45] the law of a Contracting reservatory State? According to some authors, the CISG should not be applicable in this line of cases, [288] because the reservatory State would not apply the CISG. Consequently, "... in the situation where State A has not taken the reservation under Article 95 and State B has done so, and where the parties have their places of business in State B and in non-Contracting State C, consistency would appear to require that a court in State A should, if it finds the law of State B to be applicable, select the domestic law of that State as the law governing the contract rather than the Convention." [289] The preferable view, however, seems to be to the contrary, [290] not only because generally a reservation of the kind at hand made by one State cannot bind another State, [291] but also because, from the point of view of the Contracting (forum) State, all the applicability's preconditions laid down in Article l(l)(b) are met. [292] And this view is preferable despite some German court decisions [LG Hamburg 26 September 1990; OLG Frankfurt 13 June 1991; OLG Frankfurt 17 September 1991] [293] which have applied the domestic rather than the Uniform Sales Law in cases where the rules of private international [page 46] law lead to the law of a reservatory State. [294] But these German court decisions cannot be decisive in guiding the interpreter, since the courts did not have the possibility of deciding differently, a statute having been passed in Germany according to which German judges are bound to apply domestic sales law, [295] i.e., not the CISG, [296] when their rules of private international law lead to the applicability of the law of a Contracting reservatory State. [297] There are, however, other German court decisions which should be taken into account and which support the solution here suggested. Indeed, under the Hague Conventions, German courts have stated that the reservations declared by other Contracting States were to be disregarded, i.e., the German courts applied the Conventions even where the Contracting State the law of which was to be applied would not have done so by virtue of a reservation.[298]

(C) There is disagreement also as to the solution of those cases where the forum is located in a non-Contracting State the rules of private international law of which lead to the law of a Contracting reservatory State. Despite some statements according to which in this line of cases the CISG should not apply, [299] it is here suggested [300] that [page 47] the CISG be applied, of course not by virtue of Article l(l)(b), as wrongly stated by several courts [Rb Amsterdam (Netherlands) 5 October 1994; Rb Amsterdam 7 December 1994], [301] as well as by some arbitral tribunals [ICC Arbitration Award No. 7197 of 1992], [302] but by virtue of its being part of the applicable law. [303] One should, in other words, adopt the same solution employed in the cases where the rules of private international law of the non-Contracting forum State lead to the applicability of the law of a Contracting non reservatory State. In this line of cases, the courts have to apply the CISG for the very same reasons, [304] i.e., by virtue of their rules of private international law. This view is not only held by legal scholars, [305] but, most importantly, it has already found judicial application in several instances. [306]

[Note 306 citations. Germany: LG München 3 July 1989; LG Stuttgart 31 August 1989; LG Aachen 3 April 1990; AG Oldenburg 24 April 1990; LG Hamburg 26 September 1990; OLG Frankfurt 13 June 1991; LG Baden-Baden 14 August 1991. Netherlands: Rb Amsterdam 5 October 1994; Rb Amsterdam 7 December 1994.]

4. The Application of the CISG by Arbitral Tribunals

In order for the CISG to be applicable in the courts of Contracting States, either the requirements set forth in its Article l(l)(a) or those laid down in Article l(l)(b) must be met. In order for it to be applicable in the courts of non-Contracting States, the rules of private [page 48] international law must lead to the law of a Contracting State (reservatory or not). There appears to be little doubt as to the applicability of these rules to arbitral tribunals. [307] Indeed, there are several arbitral awards which have stated that where the criteria of internationality and applicability of the CISG are met [ICC Arbitral Award 7153 of 1992], [308] the 1980 Uniform Sales Law is to be applied [ICC Arbitral Award 7197 of 1992]. [309]

At this point it is, however, worth mentioning that some arbitral tribunals have applied the CISG even where the contract was outside the Convention's stated sphere of application. In one case, the ICC Arbitral Tribunal [ICC Arbitral Award 5713 of 1989] [310] applied the CISG to a series of contracts concluded in 1979, on the ground that "[t]here is no better source to determine the prevailing trade usages than the terms of the United Nations Convention on the International Sale of Goods of 11 April 1980 ... . This is so even though neither the [country of the Buyer] nor the [country of the Seller] are parties to that Convention." [311] In another case, the Iran-United States Claims Tribunal [Award of 28 July 1989] [312] applied the CISG as part of the so-called "lex mercatoria" or as relevant trade usages to a contract concluded before the drafting of the CISG. This line of cases, which opens the door to the applicability of the CISG even to cases not falling under its scope, [313] has been criticized [314] for several reasons. It has been said, for instance, that the CISG's provisions do not reflect uniform commercial practices, [315] but are rather the result of a careful [page 49] political compromise. [316] Most importantly, however, the application of the CISG to contracts concluded before its coming into force violates a principle which appears to be recognized by most developed legal systems according to which the law in force at the moment a contract is concluded governs the contract even if that law is modified. [317] Therefore, it is preferable that the arbitral tribunals, not unlike State courts, [318] hold that the CISG is inapplicable to operative facts that occurred before the CISG’s coming into force in the countries involved [ICC Arbitral Award 6281 of 1989], [319] in order not to disappoint the parties' reliance on the applicability of a specific law in force at the moment of the conclusion of the contract.

IV. The Sphere of Application Ratione Materiae

1. The Sales Contract

For a contract to be governed by the CISG, it is not sufficient that it falls under its spatial and personal sphere of application, but it must also be inside its sphere of application ratione materiae, [320] i.e., it must be a contract for the sale of goods.

The CISG states that it applies to contracts which in the official English and French versions are respectively called contracts of sale of [page 50] goods and contracts de vente de marchandises. [321] The first question to answer is what constitutes a sale or vente. To this end, it must be noted that the CISG, not unlike the Hague Conventions, [322] does not define the sales contract. [323] According to some legal writers, this lack of definition is due to the circumstance that there are no relevant differences amongst the definitions of a sales contract in the various legal systems; [324] according to others, the contrary is true: the exclusion of any definition is to be regarded as the only way to cope with the differences in the legal systems. [325]

Despite the lack of an express definition, a more precise concept of the "sales contract" falling within the scope of the CISG can be inferred from the different rights and obligations of the parties, [326] as well [page 51] as from "the economic function of exchange which constitutes a valid reference in order to unify without contrasts the concept of sale, as opposed to other contractual schemes." [327] Thus, independently from the civil or commercial character of the parties or of the contract itself, [328] the sales contract can be defined [329] as the contract by virtue of which the seller has to deliver the goods, hand over any documents relating to them and transfer the property in the goods, whereas the buyer is bound to pay the price for the goods, and take delivery of them. [330]

The aforementioned seller's obligation to transfer the property in the goods seems to exclude the applicability of the 1980 Vienna Sales Convention to contracts that transfer the property in the goods at the moment the contract is concluded and that, therefore, do not create any obligation to transfer the property in the goods. [331] This is true, for [page 52] instance, in both the Italian and French legal systems: [332] in these systems, the property passes generally solo consensu, that is, at the moment the sales contract is concluded [333] -- whenever the goods are specified, existing and belonging to the seller —- as opposed to the transfer of property by means of the delivery of the goods, a rule applicable, for instance, in the Germanic legal systems. [334] However, a similar exclusion cannot be justified: [335] not only because otherwise the sphere of application of the CISG would become too restricted, but primarily because the effects which an international sales contract may have on the property in the goods sold have, unfortunately, [336] been expressly excluded by Article 4(b) CISG [337] from the matters with which the CISG is concerned. [338] [page 53]

2. Other Contracts Governed by the Vienna Sales Convention

But is the sales contract as defined above the only contract governed by the Vienna Sales Convention? It has been held both in legal writing and in judicial applications [LG Hamburg 26 September 1990], [339] that contracts modifying an international sales contract are governed by the Uniform Sales Law as well, [340] since they directly affect the rights and obligations of the parties to the international sales contract. [341] Furthermore, by virtue of Article 73(1) CISG, [342] contracts for the delivery of goods by installments are also governed by the CISG, [343] not unlike under the 1964 Hague Conventions. [344]

However, not unlike under the 1964 Hague Conventions, [345] barter transactions (or countertrade transactions) where all of the price is to be paid in something other than money do not fall under the Vienna [page 54] Sales Convention. [346] This is the preferable view, even though the contrary has been argued. [347] Some authors even assert that there are many arguments in favor of applying the Convention also to barter transactions. [348] It has been argued, for instance, that "[a]ny partner is to be considered here both as buyer and seller, though with regard to different performances -- in respect of the obligations to deliver, to hand over documents, to acquire title in the goods and to take delivery." [349] This view apparently does not give due consideration to Article 53 CISG [350] which expressly mentions the buyer's obligation to pay the price, [351] i.e., an element the lack of which characterizes the barter transaction.

Leasing contracts as well, do not fall within the sphere of application of the CISG, [352] not even where they contain a purchase option, [353] since their economic function is different from that of a sales contract. [354] The same appears to be true as far as consignment contracts [page 55] are concerned, which are considered as being excluded from the sphere of application of the CISG as well, [355] although they fell within the scope of the 1964 Hague Convention. [356] Furthermore, a Dutch court [Hof Amsterdam 16 July 1992] [357] recently decided, [358] in conformity with court decisions rendered under the 1964 Hague Conventions, [359] that a distribution contract did not by itself constitute a sale of goods. [360] In doing so, the court pointed out, however, that had the parties entered into any contract for the sale of goods under that distribution contract, this could have been subject to the CISG. [361] And this should be so, independently from whether the distribution agreement was concluded before the CISG's coming into force, as long as the individual sales contracts meet all the temporal requirements laid down in Art. 100 CISG. [362] [page 56]

3. Contracts for the Sale of Made-to-Order Goods and Services

Even though the sales contract as defined above still constitutes the "commercial contract par excellence" [363] and, consequently, the "pillar of the entire system of commercial relations," [364] it is undergoing a change. [365] This change is due to the fact that modern trade not only calls for ready-made-goods, but also for goods to be manufactured and, therefore, for the "sale" of labor and services as well. [366] This is why it is fair to state that the sales contract tends to become more and more a service contract. [367]

The tendency to consider sales contracts also those contracts "which require further activities besides the traditional exchange of goods with money'' [368] has been evident for years not only in the various legal systems, [369] but also in regard to the efforts made in order to unify the international sales law. [370] Indeed, the Draft Conventions of 1935 [371] and 1939, [372] as well as that of 1956 [373] and finally the ULIS of 1964 [374] included a provision dealing with the relation between sales contracts and transactions which call for the manufacture or production of goods. That is why it is not surprising that the draftsmen of the CISG extended its applicability [375] to the point that the CISG also governs contracts [page 57] which are considered to be work contracts: [376] Article 3(1) CISG deals with the Convention's applicability to contracts for the supply of goods to be manufactured or produced, whereas Article 3(2) CISG deals with contracts that include the supply of labor or other services amongst the obligations of the "seller."

As pointed out, the CISG contains some provisions which "confront the scholar with contractual schemes which have uncertain functional characteristics" [377] and "which therefore raise the problem of whether such contracts fall under the sphere of application of the Uniform Sales Law." [378] This is true, above all, in the cases where the seller is liable not only for the delivery of the goods, that is, for a dare, but also for providing labor or services. [379] But it is also true for those cases in which the buyer has to deliver parts of the materials needed for the production of the goods.

Among the contracts falling under the latter category are those contemplated by Article 3(1) CISG, [380] i.e., the contracts for the supply of goods to be manufactured or produced. [381] But there is a limit to the CISG's applicability to these contracts. Indeed, Article 3(1) CISG itself excludes that the contracts where the party who "buys" the goods to be manufactured or produced supplies a "substantial part" of the materials necessary for the manufacture or production can be considered sales. [382] Even though this provision extends the CISG’s applicability [page 58] to other than "classical" sales contracts, [383] it raises some problems as well, [384] since it does not provide for specific criteria to be used in determining whether the materials supplied by the buyer constitute a "substantial part" of the goods necessary to manufacture or produce the goods. [385] Despite this lack of definiteness, it is commonly understood that the supply of accessories does not exclude the CISG's applicability. [386] Conversely, where all the materials are supplied by the buyer, there is no doubt that the CISG is inapplicable. [387]

In order to overcome the difficulties due to the indefiniteness of the concept of "substantial part," [388] legal scholars have tried to identify its main characteristics. In this respect, some authors stated that the "substantial part" is to be looked upon merely from a quantitative point of view." [389] It is here suggested, however, that when one has to determine whether the materials provided by the buyer constitute a "substantial [page 59] part," a qualitative criterion should be used as well, [390] not unlike under the 1964 Hague Conventions. [391] Consequently, "the materials to be provided by the buyer may constitute a substantial part of the goods sold even where their value represents less than 50 per cent of the value of the goods." [392] This does not mean, however, that 15 per cent is sufficient to be considered "substantial," [393] as suggested by Professor Honnold. [394]

Although several courts have already applied Article 3(1) CISG [BGH (Germany) 15 February 1995; ICC Arbitral Award 7660 of 1994; OLG Frankfurt (Germany) 17 September 1991], [395] they have not yet elaborated on the concept of "substantial part." In one case, for instance, the CISG was held inapplicable to a contract according to which the French seller had to manufacture [page 60] goods according to the Italian buyer's specifications [Cour d'appel Chambèry (France) 25 May 1993]. [396] The court held the CISG inapplicable on the grounds that the buyer had provided a "substantial part" of the materials necessary for the manufacture, [397] but in doing so, it did not define what percentage of the materials constituted a substantial part. [398] It appears, however, that the court considered the plans and instructions handed to the "seller" by the "buyer" as being a "substantial part" of the materials necessary for the production of the goods, an analogization which has been rightly criticized. [399]

4. Contracts for the Sale of Labor and Services

The applicability of the Vienna Sales Convention extends not only to contracts for the sale of made-to-order goods. Article 3(2) CISG [400] extends it also to contracts where the "seller" is also obliged to supply services or labor. [401] This provision, which is innovative in respect to the ULIS, [402] was introduced in order to solve the problems arisen under the 1964 Hague Conventions concerning their applicability to contracts for the supply and installation of goods, [403] such as turn-key contracts [404] [page 61] and Lieferverträge mit Montageverpflichtung [405] known in German law. [406]

The criterion to be employed in deciding whether the CISG is applicable to contracts for the supply of goods and labor or services is the "preponderance" of the obligations regarding the supply of services or labor. [407] This criterion seems to generate less difficulties than the "substantial part" criterion laid down in Article 3(1) CISG. [408] Indeed, it seems merely to refer to the comparison between the economic value of the obligations regarding the supply of labor and services and the economic value of the obligations regarding the delivery of the goods. [409] "The sale price of the goods to be delivered must [in other words] be compared with the fee for labor and services, as if two separate contracts have been made," [410] a principle which has already found support in case law [ICC Arbitral Award 7153 of 1992]. [411] Thus, where the economic value of the obligation [page 62] regarding the supply of labor or services is "preponderant," i.e., where it is more than 50 per cent [412] -- this is usually the case in the turn-key contracts [413] and Lieferverträge mit Montageverbindung [414]Cthe CISG is inapplicable. [415]

An issue closely related to the one just examined is whether a contract for the supply of both goods and services or labor is entirely governed by (or excluded from) the CISG or whether the CISG always governs at least the part concerning the supply of goods. [416] Even though both legal scholars [417] and the Official Records of the United [page 63] Nations Conference [418] assert that this question should be answered by resorting to the relevant rules of domestic law, the better view seems to be to the contrary, i.e., the question of severability should be answered by resorting to the principles of the CISG. [419] Otherwise, the mandate (set forth in Article 7(1) of the CISG) to promote uniformity in the Convention's application would not be sufficiently honored. [420] However, since the Vienna Sales Convention as well as most domestic laws resort to party autonomy as the principal criterion in order to solve the problem de quo, [421] the differing views will hardly lead to different results, [422] at least from a practical point of view. [423]

5. The International Sale 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 [page 64] 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 [page 65] 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 [page 66] 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. [page 67]

V. Exclusions from the Convention’s Sphere of Application by Virtue of Article 2

1. General Remarks

For the applicability of the United Nations Sales Convention it is not sufficient that all the above mentioned prerequisites set down in Articles 1 and 3 of the CISG exist. [451] The Convention's sphere of application, as it results from these Articles, is restricted by several provisions, among others, by Article 2 of the CISG. [452]

The importance of Article 2 CISG results from its excluding certain categories of international sales contracts from the CISG's sphere of application. [453] These exclusions, which are analogous, but not identical to the ones contemplated by the ULIS, [454] can be divided into three categories [455] (and not into two, as it has been argued) [456] depending on the reasons for the exclusions from the CISG's field of application. The [page 68] exclusions are based either on the purpose of the acquisition of the goods (Article 2(a)), or on the type of sales contract (Article 2(b) and (c)), or on the kind of goods sold (Article 2(d), (e) and (f)). [457]

Even though there is dispute among legal scholars as to the number of categories of sales contracts excluded from the sphere of application of the CISG, most legal scholars agree upon the importance of the restrictions contained in Article 2. [458] Indeed, it is commonly understood that the exclusions of Article 2 are further reaching than those contained in the ULIS. [459] This is evidenced, for example, by the exclusion of auction sales from the sphere of application of the 1980 Uniform Sales Law, [460] an exclusion not contained in the ULIS. [461] According to the Official Records of the United Nations Conference , this was due to [page 69] the draftsmen's intent to avoid a conflict between CISG rules and special rules to which auction sales are often subject under national law. [462]

 

2. Exclusions of Consumer Contracts: The Definition of Consumer Contracts

In addition to this type of sale, Article 2 of the CISG also excludes the sale of goods bought for personal use from the Sales Convention's sphere of application. [463] Even though it has been argued that this exclusion has no antecedent in the 1964 Hague Conventions, [464] its rationale inspired the Article 5(2) ULIS exclusion, [465] although the latter has a more restrictive scope of application. [466]

This exclusion, [467] which, despite the proclaimed irrelevance of the civil or commercial nature of the contract [468] leads de facto to a limitation [page 70] of the CISG's sphere of application to commercial contracts, [469] has been justified, on the one hand, on the ground that the CISG should not be applicable to contracts having only local relevance, [470] and on the other hand, on the ground that there are only a few cases where the consumer contract is international. [471] However, a more convincing justification for the exclusion of sales of goods bought for personal use, i.e., for the exclusion of consumer contracts, [472] seems to be the intent of the draftsmen to avoid a conflict between CISG rules and domestic laws aimed at consumer protection. [473] [page 71]

Having recognized that the Article 2(a) exclusion "intends to ensure that the domestic consumer-protection laws are not affected by the Uniform Law for International Sales," [474] we must now focus on the prerequisites an international sales contract must meet in order to be excluded by virtue of Article 2(a) from the CISG's sphere of application. The criterion by which sales contracts are excluded ex Article 2(a) from the Convention's sphere of application is represented by the purpose for which the goods are bought: [475] the goods must be bought for a non commercial purpose, [476] i.e., for "personal" use. [477] However, this does not necessarily mean that the contract must be concluded for either commercial or industrial purposes [478] in order to be governed by the Vienna Sales Convention. Indeed, the CISG also applies where the goods are bought for professional use; [479] consequently, where a professional photographer buys a camera to use it in his business, the application of the Uniform Sales Law is not excluded. [480] The same is true [page 72] where a lawyer buys an office machine in order to use it in his law firm. [481]

In order to determine whether a sales contract falls within the Article 2(a) exclusion, only the purpose at the time of purchase is relevant, [482] that is, it is irrelevant that the real use the buyer makes of the good is different than the intended one. [483] Consequently, the Sales Convention will not apply where the goods are bought for an intended personal use, [484] even though the buyer later changes his mind and uses them for commercial purposes. [485] For the determination of the applicability of the Article 2(a) exclusion it is also relevant to determine whether the intended personal use is an exclusive one or not: [486] where the goods are bought exclusively for personal use, the CISG is not applicable, [487] while, conversely, it is applicable where the purpose is not an exclusively personal one, [488] even though the personal use might be the primary purpose of the purchase. [489]

3. The Recognizable Purpose of the Purchase of Goods and the Burden of Proof

The problem of determining whether a specific sale falls within the Article 2(a) exclusion (and therefore is not governed by the Vienna Sales Convention) is accentuated by Article 2(a) requiring for the inapplicability of the Convention that the (non commercial) purpose of [page 73] the purchase be known [490] (or could have been known) [491] to the seller at the time of the conclusion of the contract. [492] Consequently, it is irrelevant whether the seller knows of the non commercial purpose of the purchase after the conclusion of the contract. [493] The rationale for this exclusion is the need for certainty of law: the seller has to know whether the Uniform Sales Law or his domestic sales law is applicable. [494]

One of the interesting problems concerning this "prerequisite" relates to its burden of proof. [495] Indeed, there has been (and still is) dispute among legal scholars as to its allocation. Some authors assert that the Convention does not deal with any procedural questions [496] and, consequently, that this question should be left to domestic procedural law. [497] The better view seems to be to the contrary, [498] that is, the allocation [page 74] of the burden of proof is governed by the Uniform Sales Law, at least in some cases. [499]

In respect of the issue de quo, the burden of proof is not always placed on the seller, as has been suggested. [500] Since the buyer, as well, might be interested in the CISG's application, [501] the best solution is to adopt a more flexible rule, according to which the burden of proving the seller's impossibility of knowing (or being able to know) the buyer's purpose is placed on the party claiming the applicability of the Vienna Sales Convention. [502]

In addition to the question of the burden of proof, many authors have also dealt with the issue as to the criteria to be used in deciding whether the "personal use" purpose is recognizable. [503] In this regard, various indicia have been identified from which to infer the non commercial purpose of a sales contract [504] and, therefore, the inapplicability of the Sales Convention. [505] It has been stated, [506] for example, that the goods' destination to a non commercial use can be inferred from their being generally destined to personal use, [507] as in the case of the [page 75] purchase of clothing [508] or food. [509] On the other hand, the purchase of several pieces of the same type of goods, even where they are generally destined for personal use, might lead to the opposite presumption, [510] that is, that they are bought for something other than a personal use. [511]

There are other indicia that do not relate to the nature of the goods, but to the "buyer." [512] Where, for instance, the buyer concludes a contract acting as an agent for an enterprise or providing an enterprise's address, then his intent to eventually use the goods for non commercial purposes does not seem to be recognizable. [513] The same is true where the buyer concludes a sales contract using an enterprise's letter head, or where he uses an enterprise's office during the bargaining process. [514]

However, Article 2(a) CISG provides that the international sale of goods need not necessarily occur for personal use [515] in order to be excluded from the CISG's scope of application. [516] Indeed, Article 2(a) compares family and household use to personal use. [517] However, it is doubtful whether the express contemplation of "family [page 76] and household use" adds anything to the sphere of application of the exclusion of the sale of goods bought for personal use, since the former exclusions merely represent examples of "personal uses.'' [518] However, those who argue that "family or household use" have a meaning different and independent from "personal use," must not define these terms (family and household) by resorting to domestic law, [519] but by resorting to an interpretation which has regard to the Convention's international character and to the promotion of uniformity in its application. [520] This is why it has also been suggested that these concepts be interpreted with a sociological basis, [521] rather than with a legal one. [522] Thus, the purchase of goods for a god-child [523] or a cohabiting partner [524] will fall within the Article 2(a) exclusion.

4. Exclusions of Sales Based on the Nature of the Goods Sold: Negotiable Instruments and Money

As already pointed out, [525] the Article 2 exclusions are not only based on the purpose behind the acquisition of the goods [526] or on the type of sales contract (such as the auction sales [527] or the sales on [page 77] execution or otherwise by authority of law mentioned in Article 2(c) [528]), but also on the kind of goods sold (Article 2(d), (e) and (f)). [529]

Article 2(d), not unlike Article 5(1)(a) of the ULIS [530] as well as older Draft Conventions, [531] excludes the sales of stocks, shares, investment securities, negotiable instruments, and money from the Convention's sphere of application [532] in order to avoid a conflict between CISG rules and domestic rules which are often compulsory. [533] The view which held that the exclusion was necessary to avoid differences in the Convention's application which could arise from the excluded commercial papers not being considered "goods" in some legal systems, [534] is not tenable, since the Convention could have easily adopted a different concept of "goods" which could have included commercial papers as well. [535] [page 78]

The commercial paper referred to in Article 2(d) (which some authors consider to be a superfluous provision, because the concept of "goods," which can be deduced from the Convention, is sufficient to exclude the commercial papers listed in the provision de quo) [536] includes bills of exchange, cheques, [537] as well as other "instruments calling for the payment of money." [538] The sales of documents controlling the delivery of goods, such as warehouse receipts and bills of lading, [539] are, on the contrary, governed by the CISG rules, [540] for the real subject of those sales are the goods, rather than the documents. [541]

Article 2(d) expressly excludes the sale of money from the sphere of application of the Vienna Sales Convention. [542] If it is true, as has been suggested, [543] that in the sense of the Vienna Sales Convention [page 79] "money" means "money which is legal tender in a country," [544] then there is no reason why the CISG should not apply to the sale of money which is no longer in use. Consequently, the purchase of vintage coins from the last century by a store owner made with the intention of reselling them should be subject to the Uniform Sales Law. [545] And the same appears to be true with reference to the aforementioned negotiable instruments: if a museum, for example, intends to buy a number of shares which only have historical or artistical value, there is no reason why this sale should not be governed by the CISG.

5. The Exclusions of Ships, Vessels, Hovercraft, Aircraft and Electricity (Article 2(e) and (f))

The exclusions of the sale of ships, vessels, hovercraft and aircraft fall within the same category as the exclusion of commercial paper and money, [546] that is, sales excluded on the basis of the nature of the goods sold. [547] These exclusions, [548] which according to the Official Records of the United Nations Conference are due to the existence, in some legal systems, of rules according to which the excluded "goods" are treated as immovables, [549] have, at least partially, been provided for by the ULIS. [550] Indeed, Article 5(1)(b) of the ULIS [551] excluded the sale of ships, vessels and aircraft from the sphere of application of the 1964 Uniform Sales Law. [552] However, it did not mention the sale of hovercraft. [553] The CISG's innovation (which goes back to a proposal of the [page 80] Indian delegation at the Vienna Conference [554]) has been introduced in order to make sure that the regime of the ships and vessels apply to hovercraft as well, [555] independently from whether hovercraft are to be considered ships, vessels or aircraft. [556]

The sphere of application of the CISG's Article 2(e) exclusion is broader than the ULIS' Article 5(1)(b) exclusion for another reason, as well. [557] Whereas the ULIS merely excluded the ships, vessels and aircrafts which were subject to registration by virtue of national law, [558] the CISG, by canceling this criterion for exclusion, broadened the sphere of application of the exclusion of the sale of the foregoing "goods." [559]

The cancellation of the registration requirement has some advantages. It avoids, for instance, the examination of the difficult question as to what which ships, vessels or aircrafts are subject to the registration requirement and, therefore, fall within the scope of the exclusion. [560] However, it raises the question as to whether sales of smaller boats fall within the scope of the Article 2(e) exclusion. [561] The view, [page 81] held by several authors, [562] according to which the concept of "ship" (or "vessel") is limited to larger ships (or vessels) only, does not seem to be grounded in the text of the Vienna Sales Convention. [563] The better view is that the size of a watercraft is not a relevant criterion for the exclusion of a sale from the sphere of application of the Convention. [564] But this does not mean that all purchases of small watercraft are excluded from the CISG's sphere of application. [565] It only means that the exclusion from the Article 2(e) exception must be based upon a criterion different from the size of the watercraft, such as the functional characteristics of the watercraft. [566] Consequently, the sale of a watercraft which does not have the function ships or vessels have, i.e., the sale of a watercraft which is not permanently destined for the transport of goods or persons, does not fall within the exclusion de quo (independently from its size). [567] This is why the sale of a row boat [568] or sailing boat [569] should be governed by the Convention. [570] Indeed, these watercraft must be considered sporting goods [571] rather than means of transport. [572]

This problem is not the only one leading to doctrinal dispute. There is also disagreement among scholars as to whether the sale of [page 82] components of the goods excluded by Article 2(e) is subject to the exclusion. Some authors argue that such a sale falls within the sphere of the exclusion, at least where the components are essential elements of the good excluded ex Article 2(e). [573] Although this view is held by a learned author, [574] the better view is to the contrary, [575] as evidenced by a Hungarian Supreme Court decision [United Technologies (Pratt & Whitney) v. Malev Hungarian Airlines, Legfalsobb Biróság 25 September 1992] [576] applying the Vienna Sales Convention to a sales contract concerning aircraft engines, which certainly constitute an "essential element" of the aircraft. [577]

Finally, one has to mention the exclusion from the Convention's sphere of application of sales contracts regarding electricity. [578] According to some authors, the exclusion de quo can be justified on the ground of electricity's "unique" nature [579] or "on the ground that in many legal systems electricity is not considered to be goods." [580] Neither justification appears to be convincing. Indeed, the first one overlooks the fact that there are other goods the sale of which can create "unique" problems, [581] such as the sale of gas [582] and crude oil [583] [page 83] which, on the contrary, are governed by the Sales Convention. [584] The second one is not convincing, "because the Convention may create its own definition of goods." [585] Indeed, the exclusion of electricity sales from the sphere of application of the Vienna Sales Convention cannot be justified.

VI. CISG and Party Autonomy

1. General Remarks

Notwithstanding the presence of all the requirements for the application of the Convention, the CISG does not necessarily have to apply. [586] Indeed, by virtue of Article 6 of CISG, [587] the parties may exclude the Convention's application. [588]

By providing for this possibility, the draftsmen of the Convention de quo reaffirmed one of the general principles [589] embodied in the 1964 Hague Conventions, [590] that is, the principle according to which the primary source of the rules governing international sales contracts is party autonomy. [591] Thus, the drafters clearly acknowledged the Convention's [page 84] dispositive nature [592] and the "central role which party autonomy plays in international commerce and, particularly, in international sales." [593]

As far as party autonomy is concerned, [594] it must be pointed out that Article 6 of the Vienna Sales Convention refers to two different lines of cases: [595] one where the Convention's application is excluded in its entirety (by means of the application of a principle of private international law), [596] the other where the parties derogate from the substantive rules [597] of the Convention. [598] These two situations differ from each other in that the former does, according to the CISG, not encounter [page 85] any restrictions, [599] whereas the latter is limited in the cases where at least one of the parties has its place of business in a Contracting State whose legislation requires a contract of sale to be concluded in or evidenced by writing and therefore has made an Article 96 reservation. [600] This reservation prevents the application of the principle of "informality," that is, the parties are not allowed to derogate from the writing requirement. [601]

2. Implied Exclusion of the CISG and Choice of the Applicable Law

Party autonomy also played a very important role under the ULIS. [602] 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 [page 86] 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 [page 87] 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] [page 88]

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] [page 89] 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 [page 90] 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]

3. Exclusion of the CISG by Virtue of Standard Contract Forms and Choice of Forum

The choice of the law of a non-Contracting State does not constitute the sole kind of implicit exclusion which can be used to bar the Convention's application. [633] Indeed, in certain situations, and this was also true under the 1964 Hague Conventions, [634] the use of standard contract forms can exclude the Convention's application, [635] as long as (a) their contents are so profoundly influenced by the rules and the concepts of a specific legal system that their use is incompatible with the rules of the Convention and implicitly manifests the parties' intention to have the contract governed by that legal system [636] and (b) their use tends at the same time to exclude the application of the CISG as a whole. [637] Where, on the contrary, standard contract forms are intended [page 91] to merely regulate specific issues in contrast with the Convention, one must presume that only a partial exclusion of the CISG is wanted. [638]

Furthermore, the choice of a forum as well can lead to the exclusion of the Convention's application, [639] and the same is true with reference to the choice of an arbitration tribunal, [640] provided that two requirements are met: (a) one must be able to infer from the parties' choice their clear intention to have the domestic law of the State where the forum or arbitral tribunal is located govern their contract, [641] and (b) the forum or arbitral tribunal must not be located in a Contracting State, [642] otherwise the Vienna Sales Convention is applicable. [643]

Finally, the parties can exclude the Convention's application by agreeing that specific issues of their contract be subject to specific provisions of a law different than the Uniform Sales Law, provided, however, that those issue are fundamental ones [644] and that from the subjection of those issues to a domestic sales law one can infer the parties' clear intention to have the contract governed by a law different from [page 92] the uniform one, as pointed out by various court decisions rendered in respect of the Hague Conventions. [645]

It is, however, not always necessary that the parties agree upon the exclusion of the CISG for it to be inapplicable. [646] Indeed, the buyer can exclude the CISG unilaterally: by declaring that the goods are bought for personal use. According to Article 2(a) CISG, a similar statement will lead to the exclusion of the CISG's applicability.

4. Express Exclusions of the Vienna Sales Convention

In addition to problems concerning the implicit exclusion of the Vienna Sales Convention, problems can also arise with respect to its explicit exclusion. In this respect, two lines of cases have to be distinguished: the exclusion with and the exclusion without indication of the law applicable to the contract between the parties. [647]

Nulla quaestio in the case in which the Convention's application is excluded with the indication of the applicable law, an indication which can, not unlike under the Hague Conventions, [648] also be made in the course of a legal proceeding, at least where this is admissible by virtue of the applicable rules of civil procedure, [649] even though the parties will normally make their choice before the conclusion of the contract. [650] In [page 93] this case, the judge has to apply the law chosen by the parties, [651] and it is this law on the basis of which he has to decide upon the validity of the choice of law, at least where the applicable rules of private international law correspond to those laid down in the 1980 Rome Convention. [652] Where the parties' choice of law is invalid, the contract should be governed by the law to be determined on the basis of the rules of private international law of the forum, [653] rather than by the Vienna Sales Convention. [654]

Quid iuris, however, in the case of an express exclusion without indication of the applicable law? [655] In this case, the preferable view, held by most legal scholars, [656] is the one according to which "if the parties merely agree that the Convention does not apply, rules of private international law would determine the applicable domestic law." [657] [page 94] And whenever these rules refer to the law of a Contracting State, its domestic sales law, not the uniform one, should apply. [658]

Undoubtedly, this rule applies in the cases in which the Convention is excluded in toto. [659] However, its application to the cases in which the Convention's application is excluded only partially created disagreement among legal scholars. Some authors favor the view according to which the issues dealt with in the excluded provisions must be settled, according to Article 7(2) of the CISG, [660] in conformity with the Convention's general principles. [661] The better view seems to the contrary: the rules to substitute the excluded CISG provisions are to be determined, not unlike the case of an exclusion in toto of the Convention, by applying the rules of private international law (of the forum State) [662] -- without resorting to the general principles of the CISG -- otherwise the exclusion would have no practical meaning. Indeed, it would make little sense to substitute specific solutions provided for by the Convention and which, therefore, are necessarily in conformity with its general principles, with solutions "in conformity with the general principles on which [the Convention] is based." [663]

5. Applicability of the CISG and Opting-In

As stated, the Vienna Sales Convention expressly provides for the parties' possibility of excluding its application. [664] On the contrary, the Convention does not address the issue of whether the party may make [page 95] the Convention applicable when it would otherwise not apply, [665] that is, where the prerequisites for its application are not met. [666]

This gap did not exist in the ULIS which contained a provision, Article 4, [667]that expressly provided for the parties' possibility of "opting-in." [668] However, this omission should not be interpreted as preventing the parties from being entitled to do so. [669] This is evidenced by the fact that the proposal (made by the German Democratic Republic), [670] [page 96] according to which the Convention should apply even where the preconditions for its application are not met, was rejected on the sole ground that to get to the admission of such possibility, an express provision was not necessary, [671] because of the already existing principle of party autonomy. [672]

As far as the significance of the parties' "opting-in" is concerned, it must be emphasized that by virtue of the "opting-in," the Convention becomes part of the contract not unlike any other contractual clause, [673] consequently, it must be presumed, that "[t]he mandatory rules of the applicable law are ... not affected by this [opting-in]." [674]

6. Summary

In order to decide whether the Vienna Sales Convention is applicable, it is not sufficient, unlike under the 1964 Hague Conventions, [675] to consider the internationality of the sales contract. [676] Indeed, in order [page 97] for the CISG to be applicable, a substantial relation between the contract and a State which has ratified or acceded to it is required (Article l). [677] Furthermore, the Convention governs the contract only where its application is not excluded either by virtue of party autonomy (Article 6) [678] or by virtue of the Convention itself (Article 2). [679]

However, the existence of all preconditions for application does not mean that all the issues arising from an international sales contract are governed by the Convention. There are, indeed, issues expressly excluded from the sphere of application of the Convention. In that regard, Article 4 of CISG [680] states that both the validity of the contract [681] and the transfer of property [682] are not governed by the Convention. [683] Moreover, Article 5 of the CISG [684] states that the Convention does not deal with the liability of the seller for death or personal injury caused by the goods to any person. [685] [page 98]

Thus, a first conclusion can be drawn: the most important issue is the one of the Convention's applicability. This is why the knowledge of the rules dealing with its sphere of application are (and always will be) essential to the Convention's application.

VII. The Examination and Notification in Case of Non-Conformity of the Goods

1. Introduction

One of the most important issues of the CISG -- apart, of course, from its applicability -- appears to be the issue of the examination of the goods bought and the notice to be given to the seller in case of non-conformity of the goods, [686] for which the CISG provides an exhaustive set of rules [687] derived from its predecessor, the ULIS. [688]

The complexity as well as the importance of this issue [689] becomes apparent, if one considers the consequences of the lack of a proper notification, an issue which was very much debated during the 1980 Diplomatic Conference, [690] as evidenced by the Official Records of the United Nations Conference. [691] According to the wording of Article 39 CISG, [692] it appears that the failure to give proper notice not only [page 99] "would bar the full range of remedies: a claim for damages (Art. 45(1)(b) and 74-77), requiring performance by the seller (Art. 46), avoidance of the contract (Art. 49) and reduction of the price (Art. 50)," [693] but also that it would exclude all claims after two years, independently from whether the non-conformity was discoverable during that time. [694] However, Article 39 cannot be considered alone. [695] Indeed, the CISG contains two provisions, Articles 40 [696] and 44, [697] which mitigate the rigor of the foregoing provision and which were introduced upon the insistence of the developing countries, [698] which considered the loss of all rights and the absolute exclusion of all claims after two years as being too harsh a solution. [699] This is why one will focus not only on Article 39, but also on the articles with which it is interrelated, such as the aforementioned ones, as well as Article 38, which stresses the importance of a timely examination of the goods, which, however, is relevant "only for the preparation of the notification that Article 39 requires." [700]

2. The Occasion which Triggers the Need to Notify

At this point, it is important to examine when the buyer is required to notify sellers of the lack of conformity. In this regard, it has [page 100] been said that the concept of "lack of conformity" [701] relevant under Article 39 CISG is to be derived from Article 35 CISG. [702] According to this provision, [703] there is lack of conformity, [704] for example, when there is a defect in quality, as in cases [705] where shoes bought do not have the color agreed upon in the contract [OLG Frankfurt (Germany) 18 January 1994], [706] or where their front part has an ornament the parties had not agreed upon [LG Aachen (Germany) 3 April 1990]. [707] However, according to a very recent German Supreme Court decision [BGH 8 March 1995], there is no lack [page 101] of quality where mussels bought contain a quantity of a dangerous substance higher than that indicated as a limit by the government of the country where the buyer has its place of business. [708]

Furthermore, there is lack of conformity, not unlike under the ULIS, [709] where there is a defect in respect of the quantity, the description and the packaging of the goods, [710] independently from the circumstances originating the defects. [711] And even though Article 39 CISG merely refers to the "lack of conformity of the goods," it is here suggested that the notice requirement also applies where the defect relates to the documents rather than to the goods themselves, [712] not unlike under the ULIS, on the grounds not only that "the Convention is drafted on the assumption that goods will often be delivered by way of documents," [713] but also because otherwise Article 34 CISG, [714] which allows for the seller's right to cure any lack of conformity in the documents, would have only scarce value. [715]

Quid iuris where the seller delivers an aliud, i.e., goods quite different from those specified in the contract? Does the buyer in this case [page 102] have to notify the seller in order not to lose the right to rely on the lack of conformity? Under the ULIS, this question did not cause any difficulties, since Article 33(b) ULIS [716] expressly stated that the delivery of an aliud could be analogized to the delivery of non-conforming goods. [717] Even though the CISG does not expressly provide for a similar solution, it must not be doubted that the notification requirement applies in this line of cases as well. [718] Thus, "[n]otification must also be given where entirely different goods are delivered." [719] A different solution would contrast with the ratio of Article 39 CISG: the seller has to be put in a position where he can examine the goods to ascertain whether a claim is justified and, if so, cure any lack of conformity. [720] [page 103]

[Note that several recent court decisions have stated that the ratio behind Article 39 CISG is the need for the seller to be put in a position to know whether his claim for the payment of the price can be barred by any counterclaim, see, e.g., [BGH (Germany) 8 March 1995; OLG Düsseldorf (Germany) 8 January 1993.]

3. The Discovery of the Defect (Article 38)

Before discussing the time requirement for a proper notice as laid down in Article 39 CISG, it is useful to focus, at least briefly, on Article 38 CISG, this Article being prefatory to Article 39. [721] Indeed, it is Article 38 [722] which, by laying down the rule according to which the buyer must examine the goods, or cause them to be examined, within as short a period of time as is practicable under the circumstances of the case, sets forth the time when the buyer ought to have discovered the defect [OLG Düsseldorf (Germany) 8 January 1993], [723] i.e., the time after the lapse of which the buyer has only a reasonable period of time within which to notify the seller of the lack of conformity in order not to lose his rights. [724] It must be pointed out, however, that even though the examination of the goods generally constitutes a prerequisite for the application of the notice requirement, the [page 104] lack thereof does not per se [725] lead to the loss of the buyer's rights, [726] not unlike under the ULIS. [727] This is true, for instance, where the buyer does not inspect the goods and the lack of conformity cannot be discovered by examining the goods. [728] The contrary is true, too: "[i]f the buyer discovers a non-conformity without examining the goods, he ... has to notify the seller." [729]

As far as the period of time is concerned within which the inspection must occur, it must be pointed out that Article 38 CISG, not unlike its predecessor, Article 38 ULIS, does not fix a specific time limit. [730] However, the CISG's period of time differs from that provided for by Article 38 ULIS according to which the examination had to be made "promptly," [731] since it requires that the inspection be made within a "short period." [732] Contrary to what statements made by various commentators have suggested, [733] an immediate examination is not necessary, [734] although it surely would avoid all doubts [LG Aachen (Germany) 3 April 1990]. [735] [page 105]

From what has just been said, it follows that one should refrain from applying solutions elaborated in respect of the time requirement set forth in Article 38 ULIS to that laid down in Article 38 CISG. [736] Indeed, whereas the ULIS formula gave the same (very short and rigid) [737] indication for every case and, thus, lacked flexibility, [738] "the [1980] Convention has adopted a more flexible criterion than ULIS, because it allows an appropriate reference to different situations." [739] This does not mean, however, that all circumstances must be taken into consideration, but only the objective ones. [740] Therefore, "[i]mpediments relating personally to the buyer or to those in charge of examining the goods are not relevant," [741] unlike a general strike which, for instance, must be considered as being relevant under Article 38 CISG. [742] In respect of the goods bought, the aforementioned rule results not only in the "short period" for inspection being longer where the goods to be examined are -- from a technological point of view -- more sophisticated, [743] but also in its being shorter where the goods bought are perishable. [744] [page 106]

As far as the inspection itself is concerned, the period for which commences generally [745] after the receipt of the goods, [746] Article 38 CISG does not specify what criteria should be used. However, from the legislative history as well as from the text of Article 38 itself, it can be derived that, unlike under the ULIS, [747] the criteria for inspection cannot be based upon "the law or usage of the place where the examination takes place,'' [748] mainly because of the international nature of the contract. [749] As far as the standard for inspection is concerned, it has also been suggested that the buyer (or someone of his staff or even a third person authorized to do so) [750] does not have to make extraordinary efforts; [751] it is sufficient that in inspecting the goods he employs the skills of a reasonable person of the same kind, [752] i.e., of a reasonable person involved in a contract of the same type in the particular trade concerned. [753] Indeed, "a party would not be expected to discover a lack of conformity of the goods if he neither had nor had available the necessary technical facilities and expertise, even though other buyers [page 107] in a different situation might be expected to discover [the] lack of conformity." [754] However, where previous deliveries of the same goods by the same seller lacked conformity, the standard in inspecting the goods has to be higher, as pointed out by a German court [LG Stuttgart 31 August 1989]. [755]

4. The Time for Notice and Its Contents (Article 39)

As mentioned above, [756] from the time he discovers or ought to have discovered the lack of conformity, the buyer must send [757] notice of it to the seller "within a reasonable time.'' [758] But what is a "reasonable time" under Article 39 CISG? It is here suggested that the "reasonable time" cannot be analogized to the period of time required under Article 39(1) ULIS, [759] which asked for a "prompt" notification. Indeed, the time requirement of ULIS was shorter. [760] This is why one must be careful in using case decisions rendered in applying the ULIS. [761] In this respect, two basic rules can be established: (a) a notice which under the ULIS was considered late, does not necessarily have to be considered as being late under the CISG; (b) a notice considered to be given in time under the ULIS is to be considered in time under the CISG as well.

However, the CISG time requirement is not only more generous from a temporal point of view, but it is also more flexible than that of the ULIS. [762] Indeed, in determining the "reasonable time" one must [page 108] have regard to the circumstances of the case, [763] for instance whether the buyer intends to reject the goods or keep them and claim damages. [764] In determining the period of time de quo, other circumstances have to be taken into account as well, [765] such as the perishability of the goods. [766] Indeed, where the goods are perishable, the "reasonable time" period must be shorter, [767] and this is why it is not surprising that a German court has recently decided that a notice given 7 days after the delivery of gherkins is unreasonable, i.e., too late [OLG Düsseldorf 8 January 1993; see, however, BGH 8 March 1995, also involving perishable goods (mussels) in which the German Supreme Court stated that a one month period would have been "reasonable"]. [768] Where the goods are not perishable, the period for notice may be longer. However, [page 109] stating, as two very recent arbitral awards have done, that two months are "reasonable," [Austrian Arbitral Award 4318 and Austrian Arbitral Award 4366 (both dated 15 June 1994] [769] appears to be exaggerated.

Furthermore, the terms of the contract are to be taken into consideration as well. [770] And since Article 39 is dispositive, [771] the parties may agree upon a specific time period within which the notice of lack of conformity has to occur, [772] as pointed out by several court decisions [LG Giessen (Germany) 5 July 1994; LG Baden-Baden (Germany) 14 August 1991; OLG Saarbrücken (Germany) 13 January 1993]. [773]

Apart from the relative [774] time period for notice required by Article 39(1), the CISG also contains an absolute, [775] inflexible "outer time limit" [776] beyond which no notice, not even one that would satisfy the Article 39(1) requirements, can avoid the loss of the buyer's right to rely on the lack of conformity. [777] This latter period -- which, compared to some domestic law rules, has been considered as being pro-buyer [778] -- differs from the former one not only on the grounds of its [page 110] inflexibility, but also because it starts to run from the time the goods are actually handed over to the buyer, [779] without it being possible to interrupt its running. [780] Even though in some instances this rule may lead to harsh results, as in the case where "an importer has to meet domestic claims for a latent nonconformity which becomes apparent more than two years after delivery but is unable to claim against the seller because the importing contract is governed by the convention," [781] this provision was considered as being necessary in order to protect the seller against claims which may arise long after the delivery of the goods. [782]

In order to bar the loss of the right to rely on the lack of conformity, it is not sufficient, however, that the buyer notifies the seller in time. In effect, according to Article 39(1) CISG, the buyer must also "specify the lack of conformity" in order to give the seller the possibility to decide how to react to the buyers claim [783] (by examining the goods himself, by remedying the lack of conformity by repair or by delivering substitute goods). [784] Thus, the lack of conformity must be so [page 111] specific as to enable the seller to take that decision. [785] Not unlike under the ULIS, [786] a notice that merely states that the goods are defective cannot be considered a proper notice in the sense of Article 39(1). [787] The same is true in respect of a notice concerning defective fashion goods which says no more than "poor workmanship and improper fitting" [LG München (Germany) 3 July 1989] [788] or a notice regarding defective shoes which just states that "the goods are defective in all makings" [OLG Frankfurt (Germany) 18 January 1994]. [789] A notice which merely states that the shoes bought "are partially very badly stitched" [790] does not fulfill the Article 39(1) requirement either. [791] This does not mean, however, that the buyer must specify the defects in all details, since that would signify to locate the risk of the breach of contract with the buyer. [792] However, the notice must contain the indication of the defective goods, [793] their approximate quantity [794] as well as the result of the inspection of the goods. [795] As far as the form of the notice is concerned, Article 39 does not require any specific form; thus, it can be given both in writing or orally, [796] and also via phone [LG Stuttgart (Germany) 31 August 1989]. [797] [page 112]

5. The Mitigation of the Consequences of an Improper Notice (Article 40 and 44)

As mentioned above, [798] according to Article 39 CISG an improper notice by the buyer leads to the loss of his right to rely on the lack of conformity, i.e., an improper notice bars the full range of the buyer's remedies, from the avoidance of the contract [799] to the reduction of the price. [800]

However, according to Article 40 CISG, [801] an improper notice by the buyer does not lead to the loss of his right to rely on the lack of conformity, if this lack of conformity relates to facts which the seller knew or could not have been unaware of and which he did not disclose to the buyer -- and this is true even if more than two years from the date of delivery of the defective goods have passed. [802] This provision, the language of which corresponds nearly literally to that of Article 40 ULIS, [803] relaxes the rigor of the consequences of an improper notice laid down in Article 39, [804] on the grounds that "[i]n such situations, the seller has no reasonable basis for requiring the buyer to notify him of these facts.'' [805] In order for a missing disclosure to lead to the seller's impossibility of relying upon Articles 38 and 39, it is, however, not necessary that the seller does not disclose the lack of conformity in bad faith. [806] Unlike under the German Commercial Code, for instance, which contains a similar provision which is, however, limited to [page 113] deceit, [807] according to Article 40 CISG gross negligence as well is relevant. [808]

The aforementioned provision is not the only one by virtue of which the rigor of an improper notice of the lack of conformity is relaxed. [809] During the 1980 Vienna Diplomatic Conference, [developing] countries raised their voices against the "drastic" rule [810] set forth in Article 39. [811] Despite some reservations, [812] this criticism finally led to the inclusion of Article 44 [813] which maintains the remedies of price reduction and compensatory damages, except for loss of profit, [814] in cases where the buyer has a reasonable excuse for his failure to give required notice, [815] i.e., for not giving a notice at all or for giving a notice which is not specific enough. [816] According to the text of Article 44, this rule does not, however, affect the two-year cut-off period provided for in paragraph (2) of Article 39. [817] Thus, after the expiration of two years after the delivery of the goods, the buyer loses his rights to rely on the lack of conformity, even though he may have a "reasonable excuse." [818] [page 114]

In regard to Article 44 CISG, the main question is to what extent it will serve as a means of relaxation of the rule set forth in Article 39(1). The answer to this question depends on how the vague [819] "reasonable excuse" criterion will be interpreted. In this respect, some legal scholars have pointed out that Article 44 CISG will rarely become applicable, since a buyer who discovers or ought to have discovered a defect can hardly be excused for not giving a proper notice. [820] Other legal writers, on the contrary, have asserted that the provision de quo will become rather important, since it may put a considerable burden on the seller, especially because of the "reasonable excuse" criterion being vague and open to an interpretation advantageous to the buyer. [821]

At this point it is too early to foresee how the provision will be applied by the courts, [822] although it is very probable that it will be applied restrictively, because of its being an exception to a general rule (Article 39(1)). [823] Despite this uncertainty, it can be predicted that in the application of the "reasonable excuse" criterion, regard will be had to the circumstance that it resulted from a compromise [824] intended to mitigate the harsh consequences of Article 39(1). In other words, in its application regard will be had to the need to reach equitable results, [825] [page 115] a goal which can be reached by, among other means, resorting to "more individualized considerations than would otherwise be relevant under Article 39(1).'' [826]

VIII. The Issue of the Rate of Interests on Sums in Arrears

1. The Issue of Interest Rates in General

The last issue to be discussed in this paper, the issue of interests on sums in arrears, was one of the most debated issues during the 1980 Vienna Conference. [827] And although this issue has been examined very often not only in legal writing, [828] but in many court decisions [829] and several arbitral awards [830] as well, it still creates difficulties, for the reasons that will be pointed out infra. [831] [page 116]

[The decisions and awards cited in notes 829 and 830 are: Court decisions. Argentina: Elastar v. Bettcher, Juzgado National de Primera Instancia 20 May 1991. Germany: LG Stuttgart 31 August 1989; LG Hamburg 26 September 1990; OLG Frankfurt 13 June 1991; LG Frankfurt 16 September 1991; LG Heidelberg 3 July 1992; OLG Frankfurt 18 January 1994; KG Berlin 24 January 1994; OLG Düsseldorf (6 U 119/93) 10 February 1994; OLG München 2 March 1994; OLG Frankfurt 20 April 1994. Arbitral Awards. ICC Arbitral Award 7153 of 1992; Austrian Arbitral Award SCH - 4318 of 15 June 1994; Austrian Arbitral Award SCH - 4366 of 15 June 1994.]

This issue did not, on the contrary, cause any difficulties under the ULIS, since Article 83 ULIS [832] provided for "a rule for interest in arrears in the event of payment in arrears of the price which provided for one percent above the official discount rate in the creditor's country." [833] This formula has not been retained by the drafters of the Vienna Sales Convention, although there were various attempts to do so. [834] Apart from these attempts to fix the rate of interest in the same way as the ULIS, other attempts [835] were made to precisely determine the rate of interests, but they were not successful either. [836] The German view in favour of a fixed interest rate was rejected, [837] as was the view of the Czechoslovakian Delegation, according to which the applicable rate of interest should be the discount rate prevailing in the country of the debtor. [838] The same is true with the viewpoint held jointly by Denmark, Finland, Greece and Sweden, according to which interest [page 117] should be calculated on the basis of the customary rate for commercial credits at the creditor's place of business. [839]

The different political, [840] economic [841] and religious [842] views made it impossible to agree upon a formula to calculate the rate of interest. [843] Thus, the Vienna Sales Convention contains a provision -- considered to work as a compromise among the different views presented during the Vienna Conference [844] -- Article 78, [845] which limits itself to merely providing for "the general entitlement to interest" [846] in [page 118] case of payments in arrears. [847]

[The statement Article 78 limits itself to merely providing for "the general entitlement to interest" has often been repeated in judicial applications of Article 78; see, among others, German cases: OLG Frankfurt 13 June 1991; OLG Koblenz 17 September 1993; OLG Frankfurt 18 January 1994; OLG München 2 March 1994.]

In other words, Article 78 only sets forth the obligation to pay interest as a general rule, [848] and it does so independently from the damage caused by the payment in arrears, [849] as pointed out by several court decisions, which expressly stated that the entitlement to interests does not exclude the possibility to claim damages ex Article 74 [AG Oldenburg (Germany) 24 April 1990; LG Hamburg (Germany) 26 September 1990; OLG Frankfurt 18 January 1994]. [850] And since Article 78 does not set forth a time starting from which interests may be calculated either, [85l] it has been said that "Art. 78 is more conspicuous for the questions it fails to answer than the questions it answers. In particular, it does not stipulate the rate of interest or how the rate is to be determined by a tribunal in the absence of explicit guidance in the Convention." [852] [page 119]

2. Interest Rates and Gap-Filling

The lack of a specific formula to calculate the rate of interest on sums in arrears has led some courts as well as several legal writers to consider this issue as being a gap praeter legem, i.e., as being governed by, but not expressly settled in, the CISG, whereas other courts and legal scholars consider the issue de quo as falling outside the scope of application of the CISG, i.e., as being a gap intra legem. [853]This had necessarily to lead to diverging solutions, since under the CISG, the aforementioned kinds of gaps have to be dealt with differently. [854] According to Article 7(2) CISG, the gaps praeter legem (or internal gaps) have to be filled by resorting to the general principles on which the Convention is based or, in the absence of such principles, by having recourse to the law applicable by virtue of the rules of private international law. [855] On the contrary, if an issue is considered as falling outside the Convention's scope of application, [856] i.e., if it is an external gap, it must be solved in conformity with the law applicable by virtue of the rules of private international law [for a recent application, see OLG Koblenz (Germany) 16 January 1992], [857] i.e., without any tentative recourse to the "general principles" of the CISG. [858]

Unfortunately, the CISG does not set forth any useful criterion to determine in concreto when a gap is to be considered as being a lacuna praeter legem as opposed to a lacuna intra legem, [859] although this distinction appears to be quite important for the consequences in which it [page 120] results. [860] Undoubtedly, the setting forth of a criterion to be used to decide whether a gap must be considered a lacuna intra legem or one praeter legem would have favored the uniform application of the Vienna Sales Convention. [861]

3. The Issue of the Rate of Interest in Scholarly Writing

The absence of such a criterion raises, as already mentioned above, [862] the question of whether the lack of a formula fixing the rate of interest must be dealt with as a lacuna praeter legem or as a lacuna intra legem. [863]

On the one hand, it has been said that the issue of determining the rate of interest is not governed by the Vienna Sales Convention [864] and that it is, therefore, governed by the applicable domestic law. [865] Although many scholars hold this view, they appear not to agree on how to determine the applicable domestic law. Indeed, some scholars favor the view according to which the applicable domestic law is to be determined by virtue of the rules of private international law, [866] thus, making [page 121] applicable, "in general, the subsidiary law applicable to the sales contract [since no] special connecting points seem to have developed for the entitlement to interest." [867] Other scholars, [868] however, argue in favor of either the application of the law of the creditor, independently from whether this is the lex contractus, or the application of the law of the debtor. [869]

On the other hand, there are a few authors holding the contrasting view according to which the issue de quo has to be dealt with as a lacuna praeter legem, on the grounds that "[t]he mandate of Article 7(1) to construe the Convention to promote 'uniformity in its application' requires us to seek a principle governing the scope of Article 78 that can be considered as a basis for uniform application of the Convention." [870] Indeed, the "[d]eference to domestic law ... seems inconsistent with the policy underlying Article 78." [871] Thus, it has been suggested that "the interest to be paid is defined by the function of the assessment of damages, i.e., to put the seller in the same position he would have been had the sum been paid in time," [872] a formula which, however, must be criticized for leading to a confusion of the line between damages and interest which Article 78 has expressly drawn. [873]

4. The Issue of the Rates of Interest in Judicial Applications

The aforementioned dispute is not merely a doctrinal one, as evidenced by the number of different solutions adopted in the courts. These different solutions can mainly be divided into two categories: [page 122]

those favoring the view that the rate of interest has to be calculated on the basis of the domestic law [German cases cited: LG Stuttgart 31 August 1989; AG Oldenburg 24 April 1990; LG Hamburg 26 September 1990; OLG Frankfurt 13 June 1991; LG Frankfurt 16 September 1991; OLG München 3 March 1994][874]; and

those holding that the issue de quo must be resolved by resorting to the "need to promote uniformity in the application" of the CISG and, thus, to the general principles of the Convention.

In regard to this latter category, several cases are worth mentioning. On the one hand, there are two decisions of Argentinean courts [Juzgado Nacional de Primera Instancia en lo Comercial No. 7 of 20 May 1991 and Juzgado Nacional de Primera Instancia en lo Comercial No. 10 of 6 October 1994], [875] which invoked Article 9 CISG [876] in order to solve the issue of the applicable rates of interest [877] and "determined the amount of interest payable according to the relevant trading customs," [878] thus "avoid[ing] the difficult problem of determining which domestic law applies." [879] On the other hand, one must mention two recent arbitral awards of the Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich [Arbitral Award SCH-4318 of 15 June 1994; and Arbitral Award SCH-4366 of 15 June 1994] [880]according to which "the applicable interest rate is to be determined autonomously on the basis of the general principles underlying the Convention,'' [881] on the grounds that recourse to [page 123] domestic law would lead to results contrary to those promoted by the CISG, at least in those cases where the applicable domestic law would be that of a country which expressly prohibits the payment of interest. [882] This is why in the foregoing awards the issue of the rate of interest was solved by resorting to the general principle of full compensation, [883] which led to the application of the law of the creditor, since it is he who has to borrow money in order to be as liquid as he would be had the debtor paid the sum he owed in due time. This solution, however, contrasts with the legislative history: during the 1980 Diplomatic Conference a proposal to link the rate of interests to the law where the creditor had its place of business was rejected. [884] Independently from this criticism, it is doubtful whether the solution suggested by the aforementioned arbitral awards really offers a new solution, as it wanted to do according to the awards themselves. As has been rightly pointed out by one commentator, [885] the arbitral awards do not lay down a uniform substantive law rule derived from the general principles of the CISG. They merely lay down a conflict of laws rule, since this rule refers to the law of the State where the creditor has his place of business, an approach which, in the end, does not offer anything new but a uniform rule of private international law which, for the reason mentioned above, [886] is to be rejected.

As far as the court decisions are concerned, where the issue de quo is solved by resorting to domestic law, a distinction must be made: there are, on the one hand, cases applying the domestic law by virtue of the rules of private international law [AG Oldenburg (Germany) 24 April 1990; LG Hamburg (Germany) 26 September 1990; OLG Frankfurt (Germany) 13 June 1991], [887] on the other hand, cases where the domestic law of the creditor is applied without, however, it being the law made applicable by the rules of private international law [LG Stuttgart (Germany) 31 August 1989; LG Frankfurt (Germany) 16 September 1991]. [888]

Even though many solutions which differ greatly from each other can be found both in scholarly writing and judicial practice, there [page 124] seems to be the tendency to apply the lex contractus, i.e., the law which would be applicable to the sales contract if it were not subject to the Vienna Sales Convention. [889] Thus, in respect of the formula to calculate the rate of interest, the interest rate of the country of the seller generally applies, [890] at least where the rules of private international law of the forum are based upon criteria comparable to those set forth by the 1980 EEC Convention on the Law Applicable to Contractual Obligations. [891] Absent a choice of law, this Convention makes applicable the law with which the contract has the closest connection, as already mentioned above. [892] This is presumed to be the law where the party who is to effect the "characteristic performance'' [893] has its habitual residence, [894] and since the characteristic performance has to be effected by the seller, [895] it is the interest rate of the country where the seller has its place of business which generally is applicable.

Quid iuris, however, where the seller's law does prohibit the payment of interest? In this line of cases, the claim does not become unenforceable as suggested by several authors. [896] It is here suggested, that Article 78 remains enforceable even in this line of cases, but that in order to calculate the rate of interest recourse should be had to the level of interest generally applied in international commerce in the particular trade concerned. [897] [page 125]

IX. Conclusion

At this point, after examining some of the most crucial issues of the CISG, the sphere of application of the CISG, [898] the issue of the notification of non-conformity of the goods [899] as well as the issue of the rate of interest on sums in arrears, [900] one should, once again, stress why overviews of the existing case law as well as the doctrinal writing are, at least in abstracto, useful for practical purposes.

Article 7(1) CISG expressly states, inter alia, that in the interpretation of the CISG regard is to be had to its international character and the need to promote uniformity in its application. This signifies, as already pointed out supra, [901] that regard is to be had to what other courts have already done and, where there are no "precedents," to the solutions proposed by legal scholars. Since, however, the language in which either the doctrinal papers or the court decisions are written might well cause some problems for those who are not familiar with these languages, any overview which is written in a more common language and, thus, provides, at least indirectly, a "translation" of the material otherwise not too easily accessible, is to be welcomed, since it will -- in abstracto -- help to reach the Convention's ultimate goal, the promotion of uniformity. [page 126]


FOOTNOTES

* 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.

1. See, for instance, Stefan Rozmaryn, Foreword, in UNIFICATION OF THE LAW GOVERNING INTERNATIONAL SALES OF GOODS. THE COMPARISON AND POSSIBLE HARMONIZATION OF NATIONAL AND REGIONAL UNIFICATIONS VII, VIII (John O. Honnold ed., Paris 1966) (stating that "[t]he reduction of divergencies between [different] sets of norms and the harmonization of their intrinsic content could represent a further step in the development of international economic relations").

2. See, for instance, Art. 3(c) of the Treaty Establishing the European Economic Community, which provides for "an internal market characterized by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital." By stating so, the EEC Treaty impliedly acknowledges that the unification of law favors international trade.

3. See, e.g., James J. Callaghan, U.N. Convention on Contracts for the International Sale of Goods: Examining the Gap-Filling Role of CISG in Two French Decisions, 14 J.L. & COM. 183, 185 (1995) (stating that "[e]nhancing certainty in the realm of international sales will greatly facilitate the flow of international trade and serve the interests of all parties engaged in commerce"). For similar statements, see also Paul H. Neuhaus & Jan Kropholler, Rechtsvereinheitlichung -- Rechtsverbesserung?, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 73, 77 (1981).

4. See also Michael Kabik, Through the Looking-Glass: International Trade in the "Wonderland" of the United Nations Convention on Contracts for the International Sale of Goods, 9 INT'L TAX & BUS. LAW. 408, 409 (1992) (stating that "[e]fforts have long been underway to promote international trade by unifying and harmonizing international commercial law").

5. Francesco Galgano, IL DIRITTO PRIVATO FRA CODICE E COSTITUZIONE 6 (2d ed., Bologna 1980).

6. Daniela Memmo, Il contratto di vendita internazionale nel diritto uniforme, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 180, 181 (1983).

7. See for a similar statement, Errol P. Mendes, The U.N. Sales Convention & U.S.-Canada Transactions; Enticing the World's Largest Trading Bloc to Do Business under a Global Sales Law, 8 J.L. & COM. 109, 112 (1988).

8. Francesco Galgano, Il diritto uniform la vendita internazionale, in ATLANTE DI DIRITTO PRIVATO COMPARATO 211, 211 (Francesco Galgano & Franco Ferrari eds., 2d ed., Bologna 1993).

For a similar statement, see also Petar Sarcevic, Foreword, in INTERNATIONAL CONTRACTS AND CONFLICTS OF LAWS: A COLLECTION OF ESSAYS VII, VII (Petar Sarcevic ed., London/Dordrecht/Boston 1990) stating that international commercial law has "to reduce the obstacles to international trade caused by the divergences of municipal laws." The same view is expressed by Roy Goode, Reflections on the Harmonization of Commercial Law, in COMMERCIAL LAW AND CONSUMER LAW: NATIONAL AND INTERNATIONAL DIMENSIONS 3, 3 (Ross Cranston & Roy Goode eds., Oxford 1993), when the author states that international law has "to reduce the impact of national boundaries."

9. Sergio Carbone & Marco Lopez de Gonzalo, Art. 1, NUOVE LEGGI CIVIL COMMENTATE 2, 2 (1989).

10. Memmo, supra note 6, at 181.

11. For more detailed information on the history of the unification of international sales law, see E. Allan Farnsworth, The Vienna Convention: History and Scope, 18 INT'L LAW. 17 (1984); JOHN O. HONNOLD, DOCUMENTARY HISTORY OF THE UNIFORM LAW FOR INTERNATIONAL SALES (1989); John O. Honnold, Uniform Law for International Trade - Progress and Prospects, 20 INT'L LAW. 635 (1986); Kazuaki Sono, The Vienna Sales Convention: History and Perspective, in INTERNATIONAL SALE OF GOODS; DUBROVNIK LECTURES 1 ff. (Petar Sarcevic & Paul Volken eds., 1986) [hereinafter INTERNATIONAL SALE OF GOODS].

12. Ernst Rabel's role in the unification of international sales law has been stressed by several authors; see, e.g.., Michael J. Bonell, Introduction to the Convention, in COMMENTARY ON THE INTERNATIONAL SALES LAW, THE VIENNA SALES CONVENTION 3, 3 (Milan 1987).

13. The International Institute for the Unification of Private Law (UNIDROIT) was set up in Rome in 1926 under the aegis of the League of Nations.

For an overview of the Institute's activities, see, among others, Mario Matteucci, Unidroit. The First Fifty Years, in 1 NEW DIRECTIONS IN INTERNATIONAL TRADE LAW xvii (UNIDROIT ed., 1977); Riccardo Monaco, The Scientific Activity of Unidroit, id., xxvii; J.G. Starke, The Current Activities of the UNIDROIT, 64 AUSTR. L.J. 685 ff. (1990).

14. For an overview of the different bodies promoting the unification and harmonization of (commercial law), see Herbert Dolzer, International Agencies for the Formulation of Transnational Economic Law, in THE TRANSNATIONAL LAW OF INTERNATIONAL COMMERCIAL TRANSACTIONS 61 ff. (Norbert Horn & Clive M. Schmitthoff eds., 1982).

15. For the text of this draft, see Projet d'une loi internationale sur la vente (S.d.N. 1935-U.D.P. Projet I); for comments on this draft, see Gutterdige, BRITISH YEARBOOK OF INTERNATIONAL LAW 80 ff. (1935); Ernst Rabel, Der Entwurf eines einheitlichen Kaufgesetzes, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 3 ff. (1935); Ernst Rabel, A Draft of an International Law of Sales, 5 U. CHI. L. REV. 543 (1938).

16. See, for more detailed historical remarks on the early history of the unification process of sales law, Peter Schlechtriem, Bemerkungen zur Geschichte des Einheitskaufrechts, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT 27 (Peter Schlechtriem ed., Baden-Baden 1987).

17. For more specific details on the 1951 Hague Conference (Jan. 1-10), see, e.g., Ernst Rabel, Die Haager Konferenz über die Vereinheitlichung des Kaufrechts, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 212 (1952); Ernst Rabel, The Hague Conference on the Unification of Sales Law, 1 AM. J. COMP. L. 58 (1952).

18. For a detailed study of the different Draft Conventions, see Michel Borysewicz, Convention et projets de convention sur la vente internationale de marchandises, in LES VENTES INTERNATIONALES DE MARCHANDISES 16 (Paris 1981).

19. See Convention Relating to the Uniform Law of International Sale of Goods, July 1, 1964, with Annex, Uniform Law of International Sale of Goods, reprinted in 13 AM. J. COMP. L. 453 (1964).

For a discussion of this Convention, see, e.g., A. Astolfi, Cenni introduttivi sul regolamento giuridico della vendita commerciale internazionale, DIRITTO DEGLI SCAMBI INTERNAZIONALI 35 ff. (1965); JORGE BARRERA-GRAF, LA REGOLAMENTACION UNIFORME DE LAS COMPRAVENTAS DE MERCADERIAS (Mexico City 1965); Giorgio Bernini, The Uniform Laws on International Sale: The Hague Conventions of 1964, 3 J. WORLD TRADE 671 (1969); L.A. Ellwood, Hague Uniform Laws Governing the International Sale of Goods, INT'L & COMP. L.Q. 38 (Sup. Pub. No. 9, 1964); Gyula Eörsi, The Hague Conventions of 1964 and the International Sale of Goods, 11 ACTA JURIDICA ACADEMIAE SCIENTIARUM HUNGARICAE 321 (1969); R.H. GRAVESON ET AL., THE UNIFORM LAW OF INTERNATIONAL SALES ACT 1967 (London 1968); Andreas Heldrich, Die Haager einheitlichen Kaufgesetze, NEUE JURISTISCHE WOCHENSCHRIFT 2156 (1974); John O. Honnold, Uniform Law of the International Sale of Goods: The Hague Conventions of 1964, 30 LAW & CONTEMP. PROBS. 326 (1965); Philippe Kahn, La Convention de La Haye du ler Juillet 1964 portant loi uniforme sur la vente internationale d'objets mobiliers corporels, REVUE TRIMESTRIELLE DE DROIT COMMERCIAL 689 (1964); Hans-Georg Landfermann, Neues Recht für den internationalen Kauf, NEUE JURISTISCHE WOCHENSCHRIFT 385 (1974); Otto Riese, Die Haager Konferenz über die internationale Vereinheitlichung des Kaufrechts von 2.-25. April 1964: Verlauf der Konferenz und Ergebnisse hinsichtlich der materiellen Vereinheitlichung des Kaufrechts, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 1 (1965); K.C.T. Sutton, Hague Conventions of 1964 and the Unification of the Law of International Sale of Goods, 7 UNIV. QUEENSLAND L.J. 145 (1970-72); André Tunc, Les Conventions de La Haye du ler juillet 1964 portant loi uniforme sur la vente internationale d'objets mobiliers corporels. Une étude de cas sur l'unification du droit, REVUE INTERNATIONAL DE DROIT COMPARÉ 547 (1964).

20. See Convention Relating to the Uniform Law of the Formation of Contracts for the International Sale of Goods, July 1, 1964, with Annex, Uniform Law on the Formation of Contracts for the International Sale of Goods, reprinted in 13 AM. J. COMP. L. 472 (1964).

Several papers have been written on the ULF; see, e.g., Michael Aubrey, The Formation of International Contracts, with Reference to the Uniform Law on Formation, 14 INT'L & COMP. L.Q. 1011 (1965); Ernst von Caemmerer, Die Haager Konferenz über die internationale Vereinheitlchung des Kaufrechts vom 2.-25. April 1964: Die Ergebnisse der Konferenz hinsichtlich der Vereinheitlichung des Rechts des Abschlusses von Kaufverträgen, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 101 (1965); Sergei Cigoj, International Sales: Formation of Contracts, 23 NETH. INT'L L. REV. 257 (1976); Gunnar Lagergren, The Uniform Law on Formation of Contracts for the International Sale of Goods, 10 J. BUS. L. 22 (1966); Giovanni E. Longo, La Convenzione dell'Aja sulla formazione dei contratti di vendita internazionale, banco di prova per un incontro fra ordinamenti "romani" e "Common Law." Un nuovo progetto di studi, RIVISTA DEL DIRITTO COMMERCIALE E DEL DIRITTO GENERALE DELLE OBBLIGAZIONI 96 ff. (1966); Mario Matteucci, Verso l'unificazione internazionale del diritto commerciale: la legge uniforme sulla formazione del contratto, IL DIRITTO DELL' ECONOMIA 460 (1966).

21. For similar statements, see, e.g., Piero Bernardini, La compravendita internazionale, in RAPPORTI CONTRATTUALI NEL DIRITTO INTERNAZIONALE 79, 83 (Milan 1991); Michael J. Bonell, La convenzione di Vienna sulla vendita internazionale: origine, scelte e principi fondamentali, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 715, 716 (1990); Riccardo Luzzatto, Vendita (dir. internaz. priv.), in 46 ENCICLOPEDIA DEL DIRITTO 502, 507 (Milan 1993); Michel Pelichet, La vente internationale de marchandises et le conflit de lois, RECEUIL DES COURS DE L'ACADÉMIE DE DROIT INTERNATIONAL DE LA HAYE 9, 32 (1987); Burghard Piltz, INTERNATIONALES KAUFRECHT. DAS UN-KAUFRECHT (WIENER ÜBEREINKOMMEN VON 1980) in PRAXISORIENTIERTER DARSTELLUNG 8 (Munich 1993).

22. The Hague Conventions were enacted in Belgium, Great Britain, the Federal Republic of Germany, Gambia, Israel, Italy, Luxembourg, The Netherlands and San Marino.

Note, however, that according to Harold J. Berman, The Law of International Commercial Transactions (Lex Mercatoria), 2 J. INT'L DISP. RESOL. 235, 290 n.160 (1988), the Hague Conventions came into force only in eight countries.

23. For UNCITRAL's history, its structure, and its goals, see, among others, René David, La Commission des Nations Unies pour le droit commercial international, ANNUAIRE FRANÇAIS DE DROIT INTERNATIONAL 433 (1970); E. Allan Farnsworth, UNCITRAL: Why? What? How? When?, 20 AM. J. COMP. L. 314 (1972); Berthold Goldman, Les travaux de la Commission des Nations Unies pour le Droit commercial international, JOURNAL DU DROIT INTERNATIONAL 747 (1979); Rolf Herber, Die Arbeiten des Ausschusses der Vereinten Nationen für internationales Handelsrecht (Uncitral), RECHT DER INTERNATIONALEN WIRTSCHAFT 577 (1974); Gerold Herrmann, The Contribution of UNCITRAL to the Development of International Trade, in THE TRANSNATIONAL LAW OF INTERNATIONAL COMMERCIAL TRANSACTIONS, supra note 14, 35; John O. Honnold, The United Nations Commission on International Trade Law: Mission and Methods, 27 AM. J. COMP. L. 201 (1979); B.W.M. Trompenaars, UNCITRAL en haar mandaat, in 1 MOLENGRAFICA 3 (D. Kokkini-Latridou & F.J.A. van der Velden eds., 1989). For a list of recent papers on the activities on UNCITRAL, see Bibliography of Recent Writings Related to the Work of UNCITRAL, 23 INT'L J. LEGAL INFO. 66 (1995).

24. See G.A. Resolution 2205, reprinted in 1 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 65 (1968-1970) (establishing that the UNCITRAL "shall have for its object the promotion of the progressive harmonization and unification of the law of international trade ...").

25. See also John O. Honnold, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION 53 (2d ed., Deventer 1991), stating that "[t]he crucial question was this: Would it be possible to obtain widespread adoption of the 1964 Conventions? ... It became evident that the 1964 Conventions, despite the valuable work they reflected, would not receive adequate adherence... . The UNCITRAL thereupon established a Working Group of 14 States ... and requested the Working Group to prepare a [new] text."

26. Whereas earlier drafts distinguished between rules relating to the formation of international sales contracts and those relating to the rights and duties of both buyer and seller deriving from international sales contracts, the 1978 Draft Convention was a result of the Commission's decision "to integrate the draft convention on the formation of contracts and the draft convention on international sale of goods into a single text." Sono, supra note 11, at 5.

27. The proceedings of the 1980 Diplomatic Conference as well as its result are reprinted in UNITED NATIONS CONFERENCE ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, OFFICIAL RECORDS: DOCUMENTS OF THE CONFERENCE AND SUMMARY RECORDS OF THE PLENARY MEETINGS AND OF THE MEETINGS OF THE MAIN COMMITTEES (Vienna, 10 March-11 April 1980) (United Nations ed., 1981).

28. For an overview of the various names and abbreviations used instead of the Convention's official title, see Axel Flessner & Thomas Kadner, CISG? Zur Suche nach einer Abkurzüng für das Wiener Ubereinkommen über Verträge über den internationalen Warenkauf vom 11. April 1980, ZEITSCHRIFT FÜR EUROPÄISCHES PRIVATRECHT 347 (1995).

29. See the United Nations Convention on Contracts for the International Sale of Goods [hereinafter: CISG], reprinted in 19 INT'L LEGAL MATERIALS 668 (1980). The other official versions (Arabic, French, Chinese, Russian and Spanish) are reproduced in THE CONVENTION FOR THE INTERNATIONAL SALE OF GOODS: A HANDBOOK OF THE BASIC MATERIALS 169 (Daniel B. Magraw & Reed R. Kathrein eds., 2d ed., 1990). For an unofficial Dutch version of the Convention, see Roeland Bertrams & F.J.A. van der Velden, OVEREENKOMSTEN IN HET INTERNATIONAAL PRIVATRECHT EN HET WEENSE KOOPVERDRAG 184 ff. (1994).

30. For this conclusion, see also R.J.C. Munday, Comment, The Uniform Interpretation of International Conventions, 27 INT'L & COMP. L.Q. 450 (1978), where it is stated that '[t]he principal objective of an international convention is to achieve uniformity of legal rules within the various States party to it. However, even when outward uniformity is achieved following the adoption of a single authoritative text, uniform application of the agreed rules is by no means guaranteed, as in practice different countries almost inevitably come to put different interpretations upon the same enacted words." (emphasis added).

31. This can occur, for instance, when the uniform law convention itself can give rise to different autonomous interpretations. In this case, the uniformity of the result would indeed be nothing more than a coincidence: Where, for example, there are three equally plausible autonomous interpretations and two interpreters who construe the same provisions independently, the chance that there will be a uniform result amounts only to 33%, or, in other words, the probability of diverging interpretations is 67%.

For a similar line of reasoning, see also Michael F. Sturley, International Uniform Laws in National Courts: The Influence of Domestic Law in Conflicts of Interpretation, 27 VA. J. INT'L L. 729, 738 (1986).

32. Sergio Carbone, L'ambito di applicazione ed i criteri interpretativi della convenzione di Vienna, in LA VENDITA INTERNAZIONALE. LA CONVENZIONE DELL' 11 APRILE 1980 (Milan 1981).

33. For this conclusion see, e.g., Franco Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, 24 GA. J. INT'L & COMP. L. 183, 202 (1994). See also Michael J. Bonell, Art. 7, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 65 at 72 (stating that "[t]o have regard to the 'international character' of the Convention means first of all to avoid relying on the rules and techniques traditionally followed in interpreting ordinary domestic legislation").

34. See, for the danger of interpreting the Convention in the light of domestic law, John O. Honnold, The Sales Convention in Action -- Uniform International Words: Uniform Application?, 8 J.L. & COM. 207, 208 (1988), where the author states that "one threat to international uniformity in interpretation is a natural tendency to read the international text through the lenses of domestic law."

35. See Art. 7(1) CISG: "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

36. See, e.g., Article 18 of the EEC Convention on the Law Applicable to Contractual Obligations (reprinted in 19 INT'L LEGAL MATERIALS 1492, 1496 (1980)); Article 4 of the UNIDROIT Convention on International Factoring (reprinted in 27 INT'L LEGAL MATERIALS 943, 945 (1988)); Article 6 of the UNIDROIT Convention on International Financial Leasing (reprinted in 27 INT'L LEGAL MATERIALS 931, 933 (1988)).

37. Several papers have been written on the interpretation of the CISG; see, apart from the papers quoted in notes 33 & 34, Jorge A. Goddard, Reglas de Interpretacion de la Convencion sobre Contratos de Compraventa Internacional de Mercaderias, REVISTA DE INVESTIGACIONES JURIDICAS 9 ff. (1990); Michael J. Bonell, L'interpretazone del diritto uniforme alla luce dell'art. 7 della Convenzione di Vienna sulla vendita internazionale, RIVISTA DI DIRITTO CIVILE II 221 ff. (1986).

38. For the use of this expression, see Bernard Audit, LA VENTE INTERNATIONALE DE MARCHANDISES 47 (Paris 1990); Michael J. Bonell, Art. 7, in CONVENZIONE DI VIENNA SUI CONTRATTI DI VENDITA INTERNAZIONALE DI BENI MOBILI 21, 21 (Cesare M. Bianca ed., Padova 1991).

39. A similar affirmation can also be found in Honnold, supra note 25, at 136 ("[T]he reading of a legal text in the light of the concepts of our domestic legal system [is] an approach that would violate the requirement that the Convention be interpreted with regard 'to its international character.'" (emphasis in original).

For similar statements, see also a recent decision of the House of Lords, Fothergill v. Monarch Airlines, [1980] 2 All E.R. 696 (H.L.), [1980] W.L.R. 209.

40. For this expression 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, 14 (1981).

41. The danger of forum shopping as a result of diverging interpretations has also been pointed out by HONNOLD, supra note 25, at 142, where the author states that "[t]he settlement of disputes would be complicated and litigants would be encouraged to engage in forum shopping if the courts of different countries persist in divergent interpretations of the Convention."

42. For a discussion of the interpretation of uniform law conventions in general (as opposed to a discussion of the interpretation of the CISG), see most recently Stefania Bariatti, L'INTERPRETAZIONE DELLE CONVENZIONI INTERNAZIONALI DI DIRITTO UNIFORME (Padova 1986).

43. For this conclusion, see also Rolf Herber & Beate Czerwenka, INTERNATIONALES KAUFRECHT. KOMMENTAR ZU DEM ÜBEREINKOMMEN DER VEREINTEN NATIONEN VOM 11. APRIL 1980 ÜBER VERTRÄGE ÜBER DEN INTERNATIONALEN WARENKAUF 47 (Munich 1991).

For somewhat different conclusions, see, however, F.J.A. van der Velden, Indications of the Interpretation by Dutch Courts of the United Nations Convention on Contracts for the International Sale of Goods, in NETHERLANDS REPORTS TO THE TWELFTH INTERNATIONAL CONGRESS OF COMPARATIVE LAW: SYDNEY-MELBOURNE 1986 21, 33-34 (Ewoud Hondius et al. eds., Deventer 1987) (stating that where a source of uniform law is a specific provision of national law, recourse to its domestic interpretation is a logical aid to the interpretation of the uniform law); F.A. Mann, Uniform Statutes in English Law, 99 L.Q. REV. 376, 383 (1983) (stating that "[i]t is simply common sense that if the Convention adopts a phrase which appears to have been taken from one legal system ... where it is used in a specific sense, the international legislators are likely to have had that sense in mind and to intend its introduction into the Convention").

44. The presumed neutrality of the language employed in the CISG has also been pointed out by Bonell, supra note 33, at 74 ("When drafting the single provisions these experts had to find sufficiently neutral language on which they could reach a common understanding"). A similar statement can also be found in Honnold, supra note 25, at 186.

45. See, for instance, Jan Kropholler, INTERNATIONALES EINHEITSRECHT. ALLGEMEINE LEHREN 265 (Tübingen 1974).

46. Giuseppe Benedetti, Art. 4, in CONVENZIONE DI VIENNA SUI CONTRATTI DI VENDITA INTERNAZIONALE DI BENI MOBILI, supra note 38, 9 at 9.

47. For this conclusion, see also Ferrari, supra note 33, at 201.

48. See also Fritz Enderlein et al., INTERNATIONALES KAUFRECHT: KAUFRECHTSKONVENTION. VERJÄHRUNGSKONVENTION. VERTRETUNGSKONVENTION. RECHTSANWENDUNGSKONVENTION 61 (Berlin 1991); Rolf Herber, Art. 7, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECT 94 (Peter Schlechtriem ed., 2d ed., Munich 1995).

49. For this conclusion, see Honnold, supra note 25, at 136.

50. Art. 7(1), quoted supra note 35.

51. See supra notes 30 & 31 and their accompanying text.

52. For a similar statement, see, e.g., Bonell, supra note 33, at 74-75, where the author states that an "important reason for the autonomous interpretation of the Convention relates to the Convention's ultimate aim, which is to achieve world-wide uniformity of international sale contracts. To this end it is not sufficient to have the Convention adopted by the single States. It is equally important that its provisions be interpreted in the same way in various countries."

53. See Ferrari, supra note 33, at 204; Herber, supra note 48, at 94.

54. Dietrich Maskow, The Convention on the International Sale of Goods from the Perspective of the Socialist Countries, in LA VENDITA INTERNAZIONALE, supra note 32, 39 at 54.

55. See Ferrari, supra note 33, at 205.

56. For the necessity of having regard to other countries' decisions, see, for example, Herber & Czerwenka, supra note 43, at 48; Albert H. Kritzer, GUIDE TO PRACTICAL APPLICATIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 109 (1989); Susanne Cook, Note, The Need for Uniform Interpretation of the 1980 United Nations Convention on Contracts for the International Sale of Goods, 50 U. PITT. L. REV. 197, 199 (1988).

57. Bonell, supra note 33, at 91.

58. As for a reference to the persuasive power of foreign court decisions in interpreting the CISG, see Fritz Enderlein & Dietrich Maskow, INTERNATIONAL SALES LAW 56 (1992), where the authors state that "[w]hat matters ... is not a prejudicial effect of rulings by foreign courts or arbitrational tribunals and not that the decision taken by an organ, which by accident entrusted first to deal with a specific legal issue, is attached a particularly great importance; rather, the existing material in regard to relevant rulings has to be taken account of when giving the reasons for a decision."

59. For this suggestion, see also Audit, supra note 38, at 48; Enderlein et al., supra note 48, at 61; Ferrari, supra note 33, at 206 ff.; Herber & Czerwenka, supra note 43, at 49; Martin Karollus, UN-KAUFRECHT 11 (Vienna/New York 1991).

60. For a discussion of the role of doctrinal writing in the unification of law, see Edgar Bodenheimer, Doctrine as Source of the International Unification of Law , 34 AM. J. COMP. L. (Supplement) 67 (1986); Jan Kropholler, Die Wissenschaft als Quelle der internationalen Rechtsvereinheitlichung, ZEITSCHRIFT FÜR VERGLEICHENDE RECHTSSWISSENSCHAFT 143 (1986).

61. For this affirmation, see Honnold, supra note 25, at 144.

62. For this affirmation, see Ferrari, supra note 33, at 207.

63. For a reference to the departure from the refusal to make recourse to doctrinal writing by English judges, see John O. Honnold, Uniform Words and Uniform Application: The 1980 Sales Convention and International Juridical Practice, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 115 at 126, where the author states that "in the United Kingdom, the former practice against citation of living authors has been relaxed ... . [C]ourts resort to writers if there is no juducial statement on the point or (a point significant for our topic) in considering decisions of foreign courts in a foreign tongue."

In respect of the United States it has been pointed out by Honnold, supra note 34, at 208, that "[t]he traditional barriers to the use of scholarly writing in legal development broke down a long time ago in this country and is breaking down in citadels of literalism in other parts of the common law world, especially in the handling of international legal materials."

64. For short comments and overviews occasioned by the entry into force of the CISG, see, among others, Michael J. Bonell, L'entrata in vigore della Convenzione di Vienna sulla vendita e le sue conseguenze nella prassi delle contrattazioni commerciali internazionali, DIRITTO DEL COMMERCIO INTERNAZIONALE 415 (1987); Rolf Herber, Gedanken zum Inkafttreten des UN-Kaufrechtsübereinkommens, RECHT DER INTERNATIONALEN WIRTSCHAFT 340 (1987); Ulrich Magnus, Das UN-Kaufrecht tritt in Kraft, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 123 (1987); Robert W. Schaaf, Entry into Force in 1988 of UN Convention on Contracts for the International Sale of Goods, 15 INT'L J. LEGAL INFO. 56 (1987).

65. For a similar assertion, see, e.g., Frank Diedrich, Lückenfüllung im Internationalen Einheitsrecht. Möglichkeiten und Grenzen richterlicher Rechtsfortbildung im Wiener Kaufrecht, RECHT DER INTERNATIONALEN WIRTSCHAFT 353 (1995).

According to the FINANCIAL TIMES, September 21, 1993, Business Section 1, the CISG represents the "biggest success so far achieved by inter-governmental attempts at unification of commercial laws."

66. The Vienna Sales Convention is in force in about fifty countries: Argentina (Jan. 1, 1988); Australia (Apr. 1, 1989); Austria (Jan. 1, 1989); Belarus (Nov. 1, 1990); Bosnia and Herzegovina (Jan. 1, 1988); Bulgaria (Aug. 1, 1991); Canada (May 1, 1992); Chile (March 1, 1991); China (Jan. 1, 1988); Cuba (Dec. 1, 1995); Czech Republic (Apr. 1, 1991); Denmark (March 1, 1990); Ecuador (Feb. 1, 1993); Egypt (Jan. 1, 1988); Estonia (Oct. 1, 1994); Finland (Jan. 1, 1989); France (Jan. 1, 1988); Georgia (Sept. 1, 1995); Germany (Jan. 1, 1991); Guinea (Feb. 1, 1992); Hungary (Jan. 1, 1988); Iraq (Apr. 1, 1991); Italy (Jan. 1, 1988); Lesotho (Jan. 1, 1988); Lithuania (Feb. 1, 1996); Mexico (Jan. 1, 1989); Moldova (Nov. 1, 1995); the Netherlands (Jan. 1, 1992); New Zealand (Oct. 1, 1995); Norway (Aug. 1, 1989); Romania (June 1, 1992); Russian Federation (Sept. 1, 1991); Slovakia (Apr. 1, 1991); Slovenia (Jan. 1, 1988); Spain (Aug. 1, 1991); Sweden (Jan. 1, 1989); Switzerland (March 1, 1991); Syrian Arab Republic (Jan. 1, 1988); Uganda (March 1, 1993); Ukraine (Feb. 1, 1991); USA (Jan. 1, 1988); Yugoslavia (Jan. 1, 1988); Zambia (Jan. 1, 1988).

For a list of Contracting States and their declarations and reservations, see most recently Journal of Law and Commerce CISG Contracting States and Declarations Table, 14 J.L. 7 COM. 235 (1995).

67. An exhaustive list of works devoted to the CISG cannot be given, considering the number of papers dealing with it. For a detailed list of English papers, see, among others, Peter Winship, The UN Sales Convention: A Bibliography of English-Language Publications, 28 INT'L LAW. 401 ff. (1994).

For a list comprising papers written in other languages as well, see, most recently, Michael R. Will, INTERNATIONALE BIBLIOGRAPHIE ZUM UN-KAUFRECHT (Bundestelle für Außenhandelsinformation ed., 4th ed.); see also Walter Rondino, Bibliography. Vienna Convention on the International Sale of Goods, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, at 851; Peter Winship, A Bibliography of Commentaries on the United Nations International Sales Convention, 21 INT'L LAW. 585 (1987).

68. For the most recent papers discussing the judicial application of the CISG, see Callaghan, supra note 3, 183 ff.; Louis Del Duca & Patrick Del Duca, Practice under the Convention on International Sale of Goods (CISG): A Primer for Attorneys and International Traders, 27 UCC L.J. 331 (1995); Harry M. Flechtner, More U.S. Decisions on the U.N. Sales Convention: Scope, Parol Evidence, "Validity," and Reduction of Price under Article 50, 14 J.L. & COM. 153 (1995); Ulrich Magnus, Stand und Entwicklungen des UN-Kaufrechts, ZEITSCHRIFT FÜR EUROPÄISCHES PRIVATRECHT 202 (1995); Claude Witz, LES PREMIÈRES APPLICATIONS JURISPRUDENTIELLES DU DROIT UNIFORME DE LA VENTE INTERNATIONALE. CONVENTION DES NATIONS UNIES DU 11 AVRIL 1980 (Paris 1995); Claude Witz, La Convention de Vienne sur la vente internationale de marchandises à l'épreuve de la jurisprudence naissante, Dalloz Chronique 143 (1995); Claude Witz & Gerhard Wolter, Die ersten Entscheidungen französischer Gerichte zum Einheitlichen UN-Kaufrecht, RECHT DER INTERNATIONALEN WIRTSCHAFT 810 (1995).

See also Martin Karollus, Rechtsprechung zum UN-Kaufrecht (II). RECHT DER WIRTSCHAFT 168 (1992); Martin Karollus, Rechtsprechung zum UN-Kaufrecht (II), id., 319 (1991); Ulrich Magnus, Aktuelle Fragen des UN-Kaufrechts, ZEITSCHRIFT FÜR EUROPÄISCHES PRIVATRECHT 79 (1994); Burghard Piltz, Neue Entwicklungen im UN-Kaufrecht, NEUE JURISTISCHE WOCHENSCHRIFT 1101 (1994); Gert Reinhart, Zum Inkafttreten des UN-Kaufrechts für die Bundesrepublik Deutschland: Erste Entscheidungen deutscher Gerichte, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 289 (1990).

69. For a discussion of arbitral awards dealing with the CISG, see Jean-Paul Béraudo, La Convention des Nations Unies sur les contrats de vente internationale de marchandises et l'arbitrage, BULLETIN DE LA COUR INTERNATIONALE DE L'ARBITRAGE DE LA CCI 61 (1994).

70. For a complete list of the first hundred court decisions, see Michael R. Will, INTERNATIONAL SALES LAW UNDER CISG: THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. THE FIRST HUNDRED DECISIONS (Geneva, 1994).

71. See, e.g., the decision of the LG Oldenburg, September 9, 1994, reprinted in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 438 (1995); LG Gieben, July 5, 1994, reported in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 438 (1995).

72. See, for some recent lower court decisions, LG Oldenburg, November 9, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 438 (1995); Cour d'Appel Grenoble, February 22, 1995, quoted in DALLOZ-SIREY 100 (1995).

73. See Rechtbank Amsterdam, October 5, 1994, reprinted in NEDERLANDS INTERNATIONAAL PRIVAATRECHT 195 (1995); Rechtbank Amsterdam, December 7, 1994, reprinted in NEDERLANDS INTERNATIONAAL PRIVAATRECHT 196 (1995).

74. See Cour de Cassation, January 4, 1995, reprinted in Witz, supra note 68, 140.

75. See BGH, March 8, 1995, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 595 (1995); BGH, February 15, 1995, reproduced in WERTPAPIER MITTEILUNGEN 1103 (1995).

76. See OGH, November 10, 1994, published in ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 79 (1995); OGH, October 27, 1994, published in ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 159 (1995).

77. See Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich, Schiedsspruch 4366, June 15, 1994, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 590 (1995); Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich, Schiedsspruch 4318, June 15, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 591 (1995).

78. For a list of items the sale of which has led to a discussion of the applicability of the CISG, see Albert H. Kritzer, The Convention on Contracts for the International Sale of Goods-[Scope, Interpretation and Resources], [CORNELL REVIEW OF] THE CONVENTION ON CONTRACTS FOR THE INT'L SALE OF GOODS [157 (1995)]: "The CISG has been cited in cases involving contracts entered into by parties in the following businesses ... . Adapters, Airplane engines, Bale compressor, Baling press, Bathing suit material, Boots, Building material, Camcorders, Candy, Caravan, Cars, Cast iron products, Cedar shakes, Cheese, Children's shoes, Chinchilla furs, Cloth, Clothes, Coke, Communications equipment, Compressors, Computer, Computer components, Construction material, Corn, Doors, Electronic components, Fabrics, Fashion textiles, Ferrochrome, Filling machine, Frozen chicken, Fruit, Furniture, Garlic, Gas equipment, Gherkins, Granite stones, Granulator, Hearing aids, Ink printers, Jeans, Key press, Kitchen furnishings, Lambs, Latex gloves, Lithographs, Lorry platforms, Machinery, Marble slabs, Market study, Metallic hangar, Motor yacht, Mower, Mussels, Optical equipment, Panelling, Paper sacks, Paper sack factory, Pork fat, Rare hardwood, Rolled metal sheets, Rubber gloves, Sailing yacht, Shirts, Shoes, Shower cabinets, Special screws, Sports articles, Steel bars, Sweaters, Sweet potatoes, Textiles, Tickets for sports event, Tiles, Tin sheets, Veneer machines, Wall tiles, Weight lifting equipment, Windows and doors, Wine, Word processors, Women's clothes, Yarn."

79. See, e.g., Cour de Cassation, January 4, 1995, reprinted in Witz, supra note 68, 140; OLG Köln, February 22, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 972 (1994); Filanto S.p.A. v. Chilewich International Corp., 789 F. Supp. 1229 (S.D.N.Y. 1994); OLG Hamm, September 22, 1992, reproduced in UNILEX [a database devoted to CISG] (1995); Cour d'Appel Paris, April 22, 1992, reprinted in Witz, supra note 68, at 135; LG Baden-Baden, August 14, 1991, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 62 (1992).

For papers on the formation of international sales contracts under the CISG, see, among others, Michael J. Bonell, La formazione del di compravendita, in LA VENDITA INTERNAZIONALE, supra note 32, 113; Ronald A. Brand & Harry M. Flechtner, Arbitration and Contract Formation in International Trade: First Interpretations of the U.N. Sales Convention, 12 J.L. & COM. 239 (1993); Helmut Dilger, Das Zustandekommen von Kaufverträgen im Außenhandel nach internationalem Einheitsrecht und nationalem Sonderrecht, in RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 169 (1981); Gyula Eörsi, Formation of Contract, in WIENER ÜBEREINKOMMEN VON 1980 ÜBER DEN INTERNATIONALEN WARENKAUF 43 (Schweizerisches Institut für Rechtsvergleichung ed., Zurich 1985); E. Allan Farnsworth, Formation of Contract, in INTERNATIONAL SALES. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 3.1 (Nina Galston & Hans Smit eds., 1984); Franco Ferrari, Estudios comparativos en materia de conclusion del contrato en los paises de America del Sur con referencias a la Convencion de Viena sobre la venta internacional, REVISTA DEL DERECHO COMERCIAL Y DE LAS OBLIGACIONES 51 (1992); Alejandro M. Garro, La formacion del contrato en la Convencion de Viena sobre compraventas internacionales y en el proyecto de unification, DERECHO COMPARADO 227 (1988); James E. Joseph, Contract Formation under the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code, 3 DICK. J. INT'L L. 107 (1984); Clark J. Kelso, Note, The United Nations Convention on Contracts for the International Sale of Goods: Contract Formation and the Battle of the Forms, 21 COLUMBIA J. TRANSNAT'L L. 529 (1983); Warren Khoo, Formation of International Sales Contracts, 7 DIGEST OF COMM. L. 130 (1980); Burt A. Leete, Contract Formation under the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code: Pitfalls for the Unwary, 6 TEMP. INT'L COMP. L.J. 193 (1992); Katharina S. Ludwig, DER VERTRAGSSCHLUß NACH UN-KAUFRECHT IM SPANUNGSVERHÄLTNIS VON COMMON LAW UND CIVIL LAW (Frankfurt/Berlin/Bern/New York/Paris/Vienna 1994); Tim N. Logan, The People's Republic of China and the United Nations Convention on Contracts for the International Sale of Goods: Formation Questions, CHINA LAW REPORTER 53; Shahdeen Malik, Offer: Revocable or Irrevocable. Will Art. 16 of the Convention on Contracts for the International Sale Ensure Uniformity?, 25 INDIAN J. INT'L L. 26 (1985); Mantilla Molina, La formacion de los contratos de compraventa internacional de mercaderias, 10 ANUARIO JURIDICO 165 (1983); John E. Murray, An Essay on the Formation of Contracts and Related Matters under the United Nation Convention on Contracts for the International Sale of Goods, 8 J.L. & COM. 11 (1988); Kurt Neumayer, Der Vertragsschluß nach dem Recht des internationalen Warenkaufs (Wiener Übereinkommen von 1980), in FESTSCHRIFT FÜR WERNER LORENZ ZUM 70. GEBURTSTAG 747 (Michael R. Will, ed., Tübingen 1991); Courtney Parrish Smart, Note, The Formation of Contracts in Louisiana under the United Nations Convention for the International Sale of Goods, 53 LA. L. REV. 1339 (1993); Kazuaki Sono, Formation of International Contracts under the Vienna Convention: A Shift above the Comparative Law, in INTERNATIONAL SALE OF GOODS. DUBROVNIK LECTURES, supra note 12, 111; Walter A. Stoffel, Formation du contrat, in WIENER ÜBEREINKOMMEN VON 1980 ÜBER DEN INTERNATIONALEN WARENKAUF 55; Peter Winship, Formation of International Sales Contracts under the Vienna Sales Convention, 17 INT'L LAW. 1 (1983).

80. See Delchi Carrier S.p.A. v. Rotorex Corp., No. 88-CV-1078, 1994 WL 495787, 1994 U.S. Dist. Lexis 12820 (N.D.N.Y. Sept. 9, 1994); International Court of Arbitration, Award No. 7197, reprinted in JOURNAL DU DROIT INTERNATIONAL 1028 (1993).

For a discussion of the foreseeability of damages under CISG, see Franco Ferrari, Comparative Ruminations on the Foreseeability of Damages in Contract Law, 53 LA. L. REV. 1257 (1992); Franco Ferrari, Prevedibilità del danno e contemplation rule, CONTRATTO E IMPRESA 760 (1993); Arthur G. Murphey, Consequential Damages in Contracts for the International Sale of Goods and the Legacy of Hadley, 23 GEO. WASH. J. INT'L L. & ECON. 415 (1989).

81. For a detailed comparison of the 1980 Uniform Sales Law and the 1964 Hague Convention, see Jaksa Barbic, Uniform Law on the International Sale of Goods, Uniform Law on the Formation of Contracts for the International Sale of Goods (1964) and the United Nations Convention on Contracts for the International Sale of Goods (1980), in 4 HAGUE-ZAGREB ESSAYS 3 (C.C.A. Voskuil & J.A. Wade eds., The Hague 1983); Philippe Kahn, ETUDE COMPARÉE DES CONVENTION DE LA HAYE DU 1ER JUILLET 1964 SUR LA VENTE INTERNATIONALE DES OBJETS MOBILIERS CORPORELS ET LA FORMATION DU CONTRAT DE VENTE ET PROJET DE CONVENTION SUR LES CONTRATS DE VENTE INTERNATIONALE DES MARCHANDISES PRÉPARÉE PAR LA CNUDCI (Brussels 1979); Muna Ndulo, The Vienna Sales Convention 1980 and the Hague Uniform Laws on International Sale of Goods 1964: A Comparative Analysis, 38 INT'L & COMP. L.Q. 1 (1989); F.J.A. van der Velden, The Law of International Sales: The Hague Convention 1964 and the Uncitral Uniform Sales Code 1980 -- Some Main Items Compared, in HAGUE-ZAGREB ESSAYS 46 (C.C.A. Voskuil & J.A. Wade eds., The Hague 1983).

82. For this affirmation, see also Memmo, supra note 6, at 188.

83. For this affirmation, see also Ulrich Magnus, Reform des Haager Einheitskaufrechts, in ZEITSCHRIFT FÜR RECHTSPOLITIK 129 (1978).

84. Gyula Eörsi, Problems of Unifying Law on the Formation of Contracts for the International Sale of Goods, 27 AM. J. COMP. L. 311, 311 (1979).

85. See also Franco Ferrari, L'ambito di applicazione della convenzione di Vienna sulla vendita internazionale, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 893, 905 (1994).

86. Note, however, that there are countries which might consider the CISG as not being self-executing, since they regard a convention as being executing only if enacted by their legislature. This is true, for instance, in England.

87. For this qualification, see, e.g., Cook, Note, supra note 56, at 204 n.9 (1988), stating that "[t]here are two types of treaties: those that are self-executing and those that are not self-executing. A self-executing 'operates of itself, without the aid of any legislative provision'-without any enabling legislation. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). The Convention is a self-executing treaty." (emphasis added).

For a very detailed discussion of the concept of self-executing treaty, see, among others Thomas Buergenthal, Self-Executing and Non-Self-Executing Treaties in National and International Law, RECEUIL DES COURS DE L'ACADEMIE DE DROIT INTERNATIONAL DE LA HAYE 303 (1992).

88. Paul Volken, Das Wiener Übereinkommen über den internationalen Warenkauf; Anwendungsvoraussetzungen und Anwendungsbereich, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENENRECHT, supra note 16, 81 at 83.

89. Ferrari, supra note 85, at 905.

90. Paul Volken, The Vienna Convention: Scope, Interpretation, and Gap-Filling, in INTERNATIONAL SALE OF GOODS. DUBROVNIK LECTURES, supra note 12, 19 at 21-22.

91. For similar affirmations, see, for instance, Ferrari, supra note 33, at 195.

92. See Peter Schlechtriem, UNIFORM SALES LAW. THE UN-CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 48 (Vienna 1986), where the author states that "in the outlines, the 1980 Convention follows ULF, the Hague Uniform Law on the Formation of Contracts for the International Sale of Goods."

For a comparison of the provisions on formation of contracts of the Vienna and the Hague Conventions, see Eckard Rehbinder, Vertragsschluß nach UN-Kaufrecht im Vergleich zu EAG und BGB, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENENRECHT, supra note 16, at 149.

93. See, however, Eyal Zamir, European Legal Tradition, the Convention on International Sales and Israeli Contract Law, in EUROPEAN LEGAL TRADITIONS AND ISRAEL 499, 503 (Alfredo M. Rabello ed., Jerusalem 1994), stating that the CISG "is, to a great extent, based on the provisions of the two Hague Conventions" and "[i]n comparison to the two Hague Conventions, hardly any fundamental changes were introduced by the 1980 Vienna Sales Convention."

94. For a very detailed discussion of the role of trade usages and course of dealing under the Vienna Sales Convention as compared to their role under the Hague Conventions, see Stephen Bainbridge, Note, Trade Usages in International Sale of Goods: An Analysis of the 1964 and 1980 Sales Convention, 24 VA. J. INT'L L. 619 (1984).

For an analysis of the role of trade usages under the CISG, see Michael J. Bonell, Die Bedeutung der Handelsbräuche im Wiener Kaufrechtsübereinkommen von 1980, ÖSTERREICHISCHE JURISTISCHE BLÄTTER 385 (1985); Allan E. Farnsworth, Unification of Sales Law: Usage and Course of Dealing, in UNIFICATION AND COMPARATIVE LAW IN THEORY AND PRACTICE 81 (Deventer 1984); Franco Ferrari, La rilevanza degli usi nella convenzione di Vienna sulla vendita internazionale di beni mobili, CONTRATTO E IMPRESA 239 (1994); Alexsandar Golstaijn, Usages of Trade and Other Autonomous Rules of International Trade According to the UN (1980) Sales Convention, in INTERNATIONAL SALES OF GOODS. DUBROVNIK LECTURES, supra note 12, 55; Volker H. Holl & Oliver Kebler, "Selbstgeschaffenes Recht der Wirtschaft" und Einheitsrecht -- Die Stellung der Handelsgebräuche und Gepflogenheiten im Wiener UN-Kaufrecht, RECHT DER INTERNATIONALEN WIRTSCHAFT 457 (1995).

95. For a comparison of the CISG and the Hague Conventions in respect to the battle of the forms, see Graf von Westphalen, Allgemeine Gerschäftsbedingungen und Einheitliches Kaufrecht, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 49.

For a detailed analysis of the issues of the "battle of the forms" under the CISG, see, among others, Henry Gabriel, The Battle of the Forms: A Comparison of the United Nations Convention for the International Sale of Goods and the Uniform Commercial Code; the Common Law and the Uniform Commercial Code, 49 BUS. LAW. 1053 (1994); Christine Moccia, The United Nations Convention on Contracts for the International Sale of Goods and the "Battle of the Forms," 13 FORDHAM INT'L L.J. 649 (1989/90); Kurt Neumayer, Das Wiener Kaufrechtsübereinkommen und die sogenannte "Battle of the Forms," in FREIHEIT UND ZWANG-RECHTLICHE, WIRTSCHAFTLICHE UND GESELLSCHAFTLICHE ASPEKTE 501 (Walther Habscheid et al. eds., Bern 1989); François Vergne, The "Battle of the Forms" under the 1980 United Nations Convention on Contracts for the International Sale of Goods, 33 AM. J. COMP. L. 233 (1985).

96. Mendes, supra note 7, at 199.

97. Id.

98. For similar assertions, see Newell E. Cumming, Comment, United Nations Commission on International Trade Law: Will a Uniform Law in International Sales Finally Emerge?, 9 CA. W. INT'L L.J. 157, 165 (1979) (stating that the Hague Conventions "generated criticism aimed at the composition of participants at the Hague Conference. Critics pointed out that the Conference was dominated by industrialized, free enterprise nations of Western Europe and that many of the developing nations did not have the opportunity to participate in drawing up the text. Their absence in turn, has led to the production of international regulations favoring the stronger, developed nations." (footnotes omitted).

For very similar statements, see also Gyula Eörsi, Regional and Universal Unification of the Law of International Trade, 1967 J. BUS. L. 144, 147; Martin L. Ziontz, Comment, A New Uniform Law for the International Sale of Goods: Is it Compatible with American Interests?, 2 NW. J. INT'L L. & BUS. 129, 134 (1980).

99. Note that the choice to limit the sphere of application of the Sales Convention to "international" sales has been criticized on the grounds that nowadays "[the] differences which one time existed between transnational sales and sales of the same goods within one legal system have no reason." Bonell, supra note 21, at 717.

For a similar statement, see also Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods, 45 OHIO ST. L.J. 265, 269 (1984) (stating that "the very interconnectedness of domestic and international economies motivates the effort to harmonize contract law [and] demonstrates that the international transaction often is neither functionally nor definitionally distinct" from domestic transactions). For a short reference to the advantages of unifying the domestic and transnational law, see Jan Hellner, The UN Convention on the International Sale of Goods: Its Influence on National Sales and Contract Law, in COMMERCIAL AND CONSUMER LAW. NATIONAL AND INTERNATIONAL DIMENSIONS, supra note 8, 41 at 43.

However, one should not forget that the efforts towards the creation of a uniform law governing commercial transactions have always concerned situations characterized by a transnational element; see Bariatti, supra note 42, at 18.

For a more detailed discussion of the limitation of the efforts towards uniform law to "international" situations, see Bernt Lemhöfer, Die Beschränkung der Rechtsvereinheitlichung auf internationale Sachverhalte, in RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 401 (1960).

100. Barbic, supra note 81, at 4, stating that the CISG, ULIS and ULF "have only one common point of departure, notably the one according to which they all apply to contracts of sale of goods between parties whose places of business are in different States...while they fundamentally differ with respect to additional requirements."

For a similar affirmation, see also Franco Ferrari, THE SPHERE OF APPLICATION OF THE 1980 VIENNA SALES CONVENTION 7 (Deventer/Boston 1995).

101. See Carbone & Lopez de Gonzalo, supra note 9, at 3 (stating that the different criteria used by the various Conventions to determine whether a sales contract is an international one, constitute a major difference).

102. For a discussion of when a contract in general can be considered international, see Georges K. Delaume, What is an International Contract? An American and Gallic Dilemma, 28 INT'L & COMP. L.Q. 258 (1979); Rodolfo De Nova, Quando un contratto è internazionale, RIVISTA DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE 666 (1978).

103. For a similar statement, see Peter Schlechtriem, From The Hague to Vienna -- Progress in Unification of the Law of International Sales Contracts?, in THE TRANSNATIONAL LAW OF INTERNATIONAL COMMERCIAL TRANSACTIONS, supra note 14, 125 at 127 (stating that "the basic requirements for [the internationality and, thus for] the application of the Hague Sales Law are two").

104. Ferrari, supra note 100, at 7.

105. See Aldo Frignani, IL CONTRATTO INTERNAZIONALE 262 (Padova 1990) (stating that "the [1964] Uniform Law requires, for its application, two criteria of internationality: the first is a subjective one and refers to the parties of the contract whose place of business have to be located in different States; the second is an objective one and is related to the goods or to the circumstance of the conclusion of the contract").

106. See infra, the text accompanying notes 125-145.

107. Giorgio Sacerdoti, I criteri di applicazione della convenzione di Vienna sulla vendita internazionale: diritto uniforme, diritto internazionale privato e autonomia dei contratti, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 733, 734 (1990).

For a similar statement, see also van der Velden, supra note 81, at 49, stating that under the 1964 Conventions, "the adjective 'international' is defined as having a double meaning, a subjective one, concerning the parties of the contract, and an objective one, concerning the contract of sale itself."

108. See Article 1(2) ULIS: "Where a party to the contract does not have a place of business, reference is to be made to his habitual residence."

For a recent court decision applying the aforementioned provision, see BHG, October 22, 1980, reprinted in NEUE JURISTISCHE WOCHENSCHRIFT 1158 (1981).

109. See Article 1(3) ULIS: "The application of the present Law shall not depend on the nationality of the parties." For a more detailed discussion of this issue, see, e.g. Kahn, supra note 19, at 697 (stating that the citizenship of the parties does not matter, as long as the internationality requirements are met).

110. See Article 1(1) ULIS:

"The present Law shall apply to contracts of sale of goods entered into by the parties whose places of business are in the territories of different States, in each of the following cases:

(a) where the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another;

(b) where the acts constituting the offer and the acceptance have been effected in the territories of different States;

(c) where delivery of the goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected ."

111. van der Velden, supra note 81, at 50.

112. See infra, the text accompanying notes 135 & 136.

113. For a reference to this criticism, see, among others, François Rigaux, Le domaine d'application de la loi uniforme sur la vente internationale des objets mobiliers corporels et de la loi uniforme sur la formation de ces contrats de vente, JOURNAL DES TRIBUNAUX 561, 564 (1972); Rosett, supra note 99, at 274-275.

114. Carbone & Lopez de Gonzalo, supra note 9, at 4.

For a reference to the "erga omnes approach" in defining the sphere of application of the Hague Conventions, see also Marco Lopez de Gonzalo, La vendita internazionale, in 2/2 I CONTRATTI IN GENERALE 901, 907 (Guido Alpa & Mario Bessone eds., Turin 1991).

115. John O. Honnold, UN Convention on Contracts for the International Sale of Goods 1980, 15 J. WORLD TRADE L. 265, 267 (1981), defines this approach as "enthusiastic approach."

116. For this criticism, see also Ferrari, supra note 100, at 7.

117. For a similar definition of the erga omnes approach, see, e.g., Bariatti, supra note 42, at 26 (defining the erga omnes approach conventions as those conventions the application of which does not depend upon a connection with a Contracting State); Nerina Boschiero, Le Convenzioni di diritto materiale uniforme, in 21 TRATTATO DI DIRITTO PRIVATO 259, 267 (Pietro Rescigno ed., Turin, 1987) (stating that the erga omnes approach imposes an obligation on the judges to apply the provisions of the uniform law even in cases where the contract does not have any connection with any Contracting State).

See also Honnold, supra note 115, at 267 (stating that by virtue of the erga omnes approach the Contracting States were directed to apply the 1964 Hague Conventions " ... to any international sale even though it had no contact with any Contracting State").

118. See Sacerdoti, supra note 107, at 734 (stating that "the erga omnes approach excludes the justice of private international law").

119. See Article 2 ULIS: "Rules of private international law shall be excluded for the purpose of the application of the present law, subject to any provision to the contrary in the said Law."

Note, however, that even though the impossibility of making recourse to private international law rules has been criticized (for criticism, see, e.g., Kurt H. Nadelmann, The Uniform Law on the International Sale of Goods: A Conflict of Laws Imbroglio, 74 YALE L.J. 449 (1965)), it has also been considered as being a progress (see, e.g., Rolf Herber, Anwendungsbereich des Uncitral-Kaufrechtsübereinkommens, in DAS UNCITRAL-KAUFRECHT IM VERGLEICH ZUM ÖSTERREICHISCHEN RECHT 28, 37 (Peter Doralt ed., Vienna 1985); Ernst von Caemmerer, Probleme des einheilichen Kaufrechts, ARCHIV FÜR DIE CIVILISTISCHE PRAXIS 121, 122 (1978)).

For a discussion of the role of private international law under the 1964 Hague Conventions, see Konrad Zweigert & Ulrich Drohnig, Einheitliches Kaufrecht und IPR, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 147 (1965).

120. For this expression, see Rolf Herber, Art 1, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 46 at 47; Honnold, supra note 25, at 82.

121. See Frignani, supra note 105, at 306; John O. Honnold, The Sales Convention: Background, Status, Application, 8 J.L. & COM. 1, 6 (1988).

122. For a similar evaluation, see also Boschiero, supra note 117, at 267 (stating that the Hague Conventions' approach goes too far); Sacerdoti, supra note 107, at 736 (stating the same); Schlechtriem, supra note 103, at 127 (stating the same); Peter Winship, The Scope of the Vienna Convention on International Sale Contracts, in INTERNATIONAL SALES. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, supra note 79, 1.1 at 1.11 (stating that the Conventions' approach was "excessive").

123. See for further details Sergio Carbone & Riccardo Luzzatto, I contratti del commercio internazionale, in 11 TRATTATO DI DIRITTO PRIVATO 111, 137 (Pietro Rescigno ed., Turin 1984).

124. Germany, Great Britain, the Netherlands, Luxembourg, San Marino as well as Gambia made reservations restricting the applicability of the 1964 Conventions to cases where both parties to the contract have their place of business in different Contracting States; for a reference to this reservation, see also Frignani, supra note 105, at 263, Sacerdoti, supra note 107, at 736; van der Velden, supra note 81, at 50.

Other reservations have been made as well: Great Britain and Gambia, in addition to the aforementioned reservations, made another reservation limiting the Conventions' applicability even further. According to this reservation, the Conventions were applicable only in the cases where the parties to the contract expressly stated that the Conventions were to be applied; for a reference to this kind of reservation, see, e.g., Herber, supra note 119, at 32.

125. As for criticism of the possibility of making reservations, see Laszlo Reczei, The Area of Operation of the International Sales Convention, 29 AM. J. COMP. L. 513, 516 n.10 (1981).

126. For this argument, see Carbone & Lopez de Gonzalo, supra note 9, at 4 (stating that the experience with the 1964 Conventions' approach in respect to their applicability influenced the solutions adopted by the drafters of the CISG).

127. See Boschiero, supra note 117, at 268 (stating that the Vienna Sales Convention does not require any of the objective elements required by the 1964 Conventions).

128. A similar statement can be found in Herber, supra note 120, at 47 (where the author points out that the universal approach of the 1964 Conventions has been substituted with a compromise provided for by Art. 1(1)(a) and 1(1)(b)).

129. For this conclusion, see Schlechtriem, supra note 103, at 127 (where the author states that the rejection of the 1964 Uniform Laws' approach resulted in the United Nations Sales Law's approach being simpler).

130. See Reczei, supra note 125, at 517 (stating that the Vienna Convention has taken over the subjective criterion of The Hague Conventions).

131. See also Ferrari, supra note 85, at 910, with further references.

Note, however, that this view has been opposed; according to Peter Jen-Huong Wang, Das Wiener Übereinkommen über internationale Warenkaufverträge vom 11. April 1980, in ZEITSCHRIFT FÜR VERGLEICHENDE RECHTSWISSENSCHAFT 184, 187 (1988), the Vienna Sales Convention, not unlike The Hague Conventions, should be applicable only where the sales contract is characterized by a transnational element such as those provided for by the ULIS and ULF.

132. See Article 10(b): "if a party does not have a place of business, reference is to be made to his habitual residence."

133. See also Bernardini, supra note 21, at 89; Boschiero, supra note 117, at 268; Erik Jayme, Art. I in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 27 at 29; Peter Kindler, Die Anwendungsvoraussetzungen des Wiener Kaufrechtsübereinkommens der vereinten Nationen im deutsch-italienischen Rechtsverkehr, RECHT DER INTERNATIONALEN WIRTSCHAFT 776, 777 (1988); Volken, supra note 90, at 24.

According to Volken, supra note 88, at 93, the contracts which are considered as being international under the CISG (or any other uniform law), can be divided into two different categories; those which are governed by the Vienna Sales Convention (or any other uniform law), and those which are not.

134. See OLG Köln, August 26, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT 245, 246 (1995).

135. For a similar affirmation, see, e.g., Carbone & Lopez de Gonzalo, supra note 9, at 4; Ferrari, supra note 85, at 908; Sacerdoti, supra note 107, at 734.

136. Contra, see Schlechtriem, supra note 92, at 27, stating that "[t]he application of the Uniform Law for International Sales requires only that the parties' places of business be in different states, even when the formation and execution both take place in a single state, and even though that state is not a contracting state." The fact that the parties have their places of business in different States does, however, not per se lead to the application of the CISG; for this conclusion, see also Enderlein & Maskow, supra note 58, at 29.

137. For this argument, see, however, Carbone, supra note 32, at 68 (asserting that "the international character of a contractual relationship must be evaluated on the sole basis of the parties having their places of business in different States which must be Contracting States"). (emphasis added).

138. For this affirmation, see LG Hamburg, September 26, 1990, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 400, 401 (1991), where it is expressly stated that in order for a sales contract to be international under the CISG, the parties do not have to have their places of business in different Contracting States.

139. For similar statements, see also Gert Reinhart, UN-KAUFRECHT. KOMMENTAR ZUM ÜBEREINKOMMEN DER VEREINTEN NATIONEN VOM 11. APRIL 1980 ÜBER VERTRÄGE ÜBER DEN INTERNATIONALEN WARENKAUF 13-14 (Heidelberg, 1991); Volken, supra note 88, at 92.

140. Jayme, supra note 133, at 30.

For a similar affirmation, see also Enderlein & Maskow, supra note 58, at 29, stating that "[t]he Convention does not apply, per se, to the relations between parties from different territorial units of States having several relevant legal systems."

141. For this conclusion, see also Ferrari, supra note 100, at 8.

142. See Herber & Czerwenka, supra note 43, at 18, stating that "a contract concluded between parties having their places of business or their residences in the same State is not governed by the Sales Convention, even if the contract has to be executed in a different State."

143. For a similar conclusion, see, e.g., Schlechtriem, supra note 103, at 127, stating that "[h]ow and where the sales is concluded and consummated does not have any bearing."

144. See Article 1(3) CISG: "Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of the Convention."

145. For this conclusion, see also Luzzatto, supra note 21, at 510 n.34; Kurt Siehr, Der internationale Anwendungsbereich des UN-Kaufrechts, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 587, 590 (1988).

Note, however, that the conclusions drawn in the text have lead to criticism directed toward the criterion of internationality of the CISG, which is best summarized by Volken, supra note 90, at 26-27, where the author states that "[the internationality] criterion is too broad in the sense that it considers even those sales as international in which the goods, from their fabrication to their consumption, have never left the original country... . On the other hand, the basic criterion is too restrictive in that it excludes all sales from the Convention between two parties which import and export goods but have their place of business in the same State."

146. Generally it is stated that the parties have to have their places of business in different States at the moment the contract is concluded in order for the sales contract to be an international one (see, e.g., Luigi Rovelli, Conflitti tra norme della Convenzione e norme di diritto internazionale privato, in LA VENDITA INTERNAZIONALE, supra note 32, 89 at 93-94). However, whereas this is certainly true as far as the applicability of Part III of the CISG is concerned, it can be doubted whether the same rule applies to Part II on the Formation of Contract. Indeed, in this respect the better rule appears to be that the parties must have their places of business in different countries at the moment the offer is made, a rule which can be derived by analogy from Art. 100(1), according to which Part II of the CISG applies only when the offer for concluding the contract is made on or after the date when the Convention enters into force.

Furthermore, it must be noted that the change of the place of business in respect to the one relevant for the applicability of Part II and III of the CISG has no influence on the applicability of Part II or III respectively.

147. For a criticism of the draftsmen's omission to define the "place of business," see, e.g., Grigera Naon, The UN Convention on Contracts for the International Sale of Goods, in THE TRANSNATIONAL LAW OF INTERNATIONAL COMMERCIAL CONTRACTS, supra note 14, 89 at 97 (listing the dangers to which the lack of definition leads); Bradley J. Richards, Note, Contracts for the International Sale of Goods: Applicability of the United Nations Convention, 69 IOWA L. REV. 209, 219 (1983).

148. This affirmation can also be found in judicial applications of the ULIS; see, e.g., BGH, June 2, 1982, reprinted in NEUE JURISTISCHE WOCHENSCHRIFT 2730, 2731 (1982); in legal writing, see, for this affirmation, also Ferrari, supra note 85, at 913.

149. See Frignani, supra note 105, at 262 & 307.

150. The Argentinian and Belgian delegates, for example, suggested that a place of business is "a stable place where the entire (or part of) the contract is performed and which has an autonomous power to conduct the bargaining and to conclude the contract" (Carbone, supra note 32, at 69-70). In contrast, the Norwegian delegation, even though it agreed upon the stability requirement, stated that there can be a place of business even without power to conclude the contract, as long as there is power to bargain.

151. For this conclusion, see also Gian Alberto Ferretti, Art. 10, NUOVE LEGGI CIVILI COMMENTATE 43, 43 (1989) (asserting that the place of business is a concept to be determined on a case-by-case basis and to define it requires an examination of the business activities as well as its organization).

152. For this requirement of stability, see, e.g., Schlechtriem, supra note 92, at 42, stating that it can be assumed that the place of business is an establishment of some duration and with certain authorized powers.

153. BGH, June 2, 1982, published in NEUE JURISTISCHE WOCHENSCHRIFT 2730, 3731 (1982).

154. See, for this criticism, Ferretti, supra note 151, at 43.

155. See also Carbone & Lopez de Gonzalo, supra note 9, at 5, arguing that even though it is necessary that there be an autonomous power, it is doubtful whether the power must relate to the possibility of concluding the contract or whether it is sufficient that it relate to the possibility of conducting the bargaining. For an author favoring the former solution, see Reinhart, supra note 139, at 38.

According to Bernardini, supra note 21, at 89, in order to decide whether there is a place of business, it is irrelevant where the conclusion of the contract or its execution takes place. The author suggests that the relevant criterion is represented by the place where the headquarters are established.

156. For these suggestions, see also Ulrich Magnus, WIENER UN-KAUFRECHT (CISG), in J. VON STAUDINGERS KOMMENTAR ZUM BÜRGERLICHEN GESETZBUCH MIT EINFÜHRUNGSGESETZ UND NEBENGESETZEN 39 (Heinrich Honsell ed., 12th ed., Berlin 1994).

157. For this conclusion, see also Honnold, supra note 25, at 79, stating that the concept of "place of business" "as used in Art. 1, should be construed to mean a permanent and regular place of transacting of general business, and would not include a temporary place of sojourn during ad hoc negotiations."

158. For this conclusion, see also Honnold, supra note 25, at 79; Siehr, supra note 145, at 590 n.1.

159. See Franco Ferrari, VENDITA INTERNAZIONALE DI BENI MOBILI. ART. 1-13. AMBITO DI APPLICAZIONE. DISPOSIZIONI GENERALI 30 (1994).

160. See Rosett, supra note 99, at 279, stating that in order to be able to consider a place as being a "place of business," "[n]either having a hotel room or a rented office in a city nor engaging in sales transactions on repeated occasions in the nation appear to suffice."

161. For a basically similar statement, see Honnold, supra note 25, at 181, arguing that "[t]he term 'place of business' in the official French text is établissement and in the official Spanish text is establecimiento -- words that seem to be inconsistent with a temporary stopping place."

162. Note, that the exact determination of the places of business of the party is not only important for the applicability of the Sales Convention, but for other purposes as well; see, e.g., Arts. 12, 20(2), 24, 31(c), 42(1), 57, 69(2), 90, 93(3), 94, 96. For a similar affirmation in legal writings, see Enderlein & Maskow, supra note 58, at 71; Magnus, supra note 156, at 39; OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 19; Jerzi Rajski, Art. 10, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 116 at 117.

163. See also Herber & Czerwenka, supra note 43, at 63, stating that the Hague Uniform Laws did not provide for any solution of the dilemma mentioned in the text.

164. Note, that already 1 Ernst Rabel, 1 DAS RECHT DES WARENKAUFS 51 (Berlin 1936), considered this issue. See also Art. 7(1) of the Draft Uniform Sales Law of 1935, reprinted in RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 3, 10 (1935).

165. For a very detailed discussion of the issue de quo, see, e.g., Gerold Herrmann, Anwendbarkeit des Einheitskaufrechts auf Kaufvertrag mit Zweigniederlasung (Art. 1 Abs. 1 EKG), PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 212, 214 (1983).

166. This view was favored, for instance, by Ulrich Huber, Das Einheitliche Gesetz über den internationalen Kauf, DER BETRIEB 1205, 1205 (1975); Landfermann, supra note 19, at 388.

This thesis has been mostly justified by making reference to the certainty of law: see, e.g., Rolf Herber, Art. I in KOMMENTAR ZUM EINHEITLICHEN KAUFRECHT 7, 10 (Hans Dölle ed., Munich 1976), stating that "[t]he silence of the law [as to the determination of the relevant place of business] leads to the conclusion that the principal place of business is always the decisive one. This solution allows a very clear limitation of the sphere of application of the [uniform] law. The parties thus acquire certainty as to the applicability of the uniform law from the beginning of bargaining process."

167. See Volker Stötter, INTERNATIONALES EINHEITS-KAUFRECHT 132 (Munich 1975).

A third solution has been suggested, which, however, has not been followed by the courts; according to Graveson et al., supra note 19, at 49, the question as to which place of business is to be taken into account in order to determine the internationality of a sales contract in cases where one party has more than one place of business is irrelevant, provided that at least one of the multiple places of business of one party is located in a State different than that in which the other party's place of business is located. In this respect the authors make the following example:

"[W]here the seller has its place of business in States A, B, and C and the buyer has places of business in States C, D and E, would a contract between the parties made entirely at their places of business in State C fall within the Uniform Law? It is suggested that such a contract would satisfy this particular requirement for two reasons: (a) Article 1(1) does not exclude parties who have places of business in the same State: it merely requires that they have places of business in different States and if this condition is satisfied (as in our example), there seems no reason in the text for exclusion of the Uniform Law; (b) the three alternative further conditions set out in Article 1(1) effectively ensure the international character of the contract, so that no questions arises of the application of the Law to purely local contracts."

168. See BGH, June 1, 1982, reprinted in Peter Schlechtriem & Ulrich Magnus, INTERNATIONALE RECHTSPRECHUNG ZU EKG UND EAG. EINE SAMMLUNG BELGISCHER, DEUTSCHER, ITALIENISCHER UND NIEDERLÄNDISCHER ENTSCHEIDUNGEN ZU DEN HAAGER EINHEITLICHEN KAUFGESETZEN 89 (Baden-Baden 1987); for a comment on this decision, see, among others, Daniela Memmo, La "sede d'affari" secondo la disciplina uniforme sulla vendita internazionale nella più recente giurisprudenza della Corte federale tedesca, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 755 (1983).

169. Memmo, supra note 168, at 759 n.10.

170. Note, that Article 10(a) CISG solves the question of which of several places of business of one party is relevant in order to establish whether a contract is international; it does not, however, define the "place of business"; for similar conclusions, see Herber & Czerwenka, supra note 43, at 63.

Contra, in the sense that it is possible to derive a definition of the "place of business" from Article 10(a) CISG, Honnold, supra note 25, at 79. This thesis has been criticized, see, e.g., Richards, Note, supra note 147, at 220.

171. See Article 10(a) CISG: "for the purposes of this Convention: (a) if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract."

172. For this expression, see Rolf Herber, Art. 10, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 113 at 114; Herrmann, supra note 165, at 215.

Note, however, that it is wrong to state that the solution adopted by the CISG has been influenced by the solution given under the Hague Conventions, and this not only because the aforementioned decision of the German Supreme Court is dated 1982, whereas the CISG was approved in 1980, but because it was the CISG [which] actually influenced the German court decision, as evidenced by the fact that the German Supreme Court, in deciding the case, expressly made reference to Art. 10(a) adopted by the Vienna Sales Convention, even though it was not yet in force. For a similar evaluation of the CISG's influence on the German court's solution, see Memmo, supra note 168, at 760.

173. Indeed, the problem of which of several places of businesses was to be relevant in determining the internationality of a sales contract was intended to be solved by making recourse to the "principal place of business theory," as evidenced by the proposal reprinted in 2 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 52 (1971), according to which an article should have been introduced to read as follows: "Where a party has places of business in more than one State, his place of business shall be his principle place of business... ." This proposal has been rejected in favor of Article 10(a); for a brief historical account of Article 10(a), see Rajski, supra note 162, at 116.

174. For this affirmation, see also Ferretti, supra note 151, at 44.

175. For this example, see Ferrari, supra note 159, at 208; Herber & Czerwenka, supra note 43, at 64; Schlechtriem, supra note 92, at 43.

176. For this affirmation, see also Kritzer, supra note 56, at 75-76, listing examples of clauses able to unequivocally determine the relevant place of business.

This solution corresponds to that suggested by courts under the Hague Conventions; see, e.g., BGH, June 2, 1982, reprinted in Schlechtriem & Magnus, supra note 168, 89 at 91, where it is stated that the applicability of the [1964] Uniform Sales Law depends [among others] on the location of the places of business to which the parties wanted the contract to be linked. See also OLG Hamburg, December 19, 1980, partially reprinted in Schlechtriem & Magnus, supra note 168, at 113.

177. For this criticism of Article 10(a), see, for instance, Rajski, supra note 162, at 118, stating that "[o]ne of the problems that may arise in connection with the interpretation of Article 10 concerns the meaning of the 'closest relationship' of the place of business to the contract and its performance."

Similar statements have been made by other authors as well; see Herber, supra note 172, at 133; Vincent Heuzé, LA VENTE INTERNATIONALE DE MARCHANDISES 37 & 86 (Paris 1992).

178. See also Ferrari, supra note 159, at 208.

179. In Filanto S.p.A. v. Chilewich International Corporation, 789 F. Supp. 1229 (S.D.N.Y. 1992), the court did not address the issue of which of several places of business was the "relevant" one, although the buyer had places of business in the United States and England.

180. See also Ferrari, supra note 159, at 208.

181. See also Ferretti, supra note 151, at 44, stating that "Article 10 does not provide for an initial time limit fixing the period of time in which the elements to be taken into account may become apparent; it provides, instead, for a deadline after the expiration of which no new elements can be considered. By doing so, [Article 10(a)] clarifies that those elements must have influenced the formation of the contract."

182. See, for this conclusion, OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 19: "If it was contemplated that the seller would perform the contract at his place of business in State A, a determination that his "place of business" under Article 10(a) was in State A would not be altered by his subsequent decision to perform the contract at his place of business in State B."

183. For this solution, see also Enderlein & Maskow, supra note 58, at 72; Herber, supra note 172, at 114; Magnus, supra note 156, at 145; Dieter Martiny, Kommentar zum UN-Kaufrecht, in 7 MÜNCHENER KOMMENTAR ZUM BÜRGERLICHEN GESETZBUCH 1658 (Hans-Jürgen Sonnenberger ed., 2d ed., Munich, 1989); Piltz, supra note 21, at 39.

Contra, suggesting having recourse to the place of business where the performance takes place, Herrmann, supra note 165, at 214.

184. For this conclusion, see already Ferrari, supra note 100, at 11.

185. For the text of Article 10(a), see supra note 171.

186. The concept of "habitual residence" has often been used in private international conventions; for a list of such conventions, see, e.g., Rajski, supra note 162, at 118 ("The concept of habitual residence is used in a number of other international conventions... .The concept of 'habitual residence' was adopted in the Hague Convention on Civil Procedure of 14 November, 1896. It has been introduced subsequently at a number of international conventions in various domains of private international law, to complement or supplant the traditional connecting factor of domicile... .The essential reason for its success is attributable largely to the difficulties in any attempt to define a general concept of domicile, which varies greatly in the law of different States").

For a discussion of the concept de quo in private international law, see F.A. Mann, Der "gewöhnliche Aufenthalt" im internationalen Privatrecht, JURISTENZEITUNG 466 (1956).

187. Note, that since consumer sales are excluded from the sphere of application of the Vienna Sales Convention (see infra the text accompanying notes 463-89), Article 10(b) will not be applicable very often. For a similar statement, see Peter Schlechtriem, EINHEITLICHES UN-KAUFRECHT 30 (Tübingen, 1981) (the use of habitual residence of a party as an alternative to 'place of business' will rarely be applied to legal transactions governed by the Convention").

188. Note that Rajski, supra note 162, at 118, states that "[since] the concept of habitual residence refers to a situation of fact, the possibility of its different interpretation according to the domestic rules of law appears to be substantially limited."

189. For this definition of habitual residence, see Ferretti, supra note 151, at 44; Herber & Czerwenka, supra note 43, at 64; Piltz, supra note 21, at 39-40.

190. It is here suggested that for the applicability of the CISG it is irrelevant whether the parties know that it is applicable or that it even exists. Similar affirmations can be found, in respect, however, to the 1964 Hague Conventions, in several court decisions; see, e.g., OLG Frankfurt, February 9, 1977, partially reprinted in Schlechtriem & Magnus, supra note 168, 110 at 110.

191. See Article 1(2): "The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract."

192. It is not sufficient that the internationality be apparent to one sole party; see, e.g., Magnus, supra note 156, at 41-42.

193. For this conclusion, see Magnus, supra note 156, at 41.

Since the rationale behind Article 1(2) CISG is to avoid applying the Uniform Law to a contract which to the parties appears to be merely a domestic one (for this affirmation, see also Karollus, supra note 59, at 29), it is not necessary, as, however, suggested by Volken, supra note 90, at 24, that "the parties must consciously have entered into an international contract" in order for the Vienna Sales Convention to be applicable. It is possible that the internationality is evident, but that the parties do not consciously enter into an international contract.

194. It is often stated that the elements on the basis of which to decide whether the internationality of a contract is apparent are objective; see, e.g., Beate Czerwenka, RECHTSANWENDUNGSPROBLEME IM INTERNATIONALEN KAUFRECHT 136 (Berlin/Munich, 1988); Herber, supra note 120, at 57; Karollus, supra note 59, at 29. This means that it is indeed irrelevant whether the parties know about the internationality of the contract (for this conclusion, see also Magnus, supra note 156, at 41).

Contra, Audit, supra note 38, at 19, stating that the parties must know that they have concluded a contract which is to be considered an international one under the CISG.

195. For this conclusion, see Herber, supra note 120, at 57.

196. The internationality is apparent, for instance, when the contract is written in a language other than the one used in the State where the contract is concluded.

197. In cases, for example, where the parties have during the bargaining process exchanged their business cards listing their foreign addresses, the internationality must be considered as being apparent.

198. For some examples of information which makes a contract "appear" to be international, see Magnus, supra note 156, at 42.

199. For similar affirmations, see Hans Hoyer, Der Anwendungsbereich des Einheitlichen Wiener Kaufrechts in DAS EINHEITLICHE WIENER KAUFRECHT. NEUES RECHT FÜR DEN INTERNATIONALEN WARENKAUF 31, 35 (Hans Hoyer & Willibald Posch eds., Vienna 1992); Reinhart, supra note 139, at 17.

200. For this conclusion, see Ferrari, supra note 85, at 915.

201. For this conclusion, see Herber, supra note 119, at 35.

202. OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 15.

203. For the same solution, see also Czerwenka, supra note 194, at 136; Herber & Czerwenka, supra note 43, at 21.

204. See supra the text accompanying notes 135 & 136.

205. Under the Hague Conventions, the sole international character of a sales contract was sufficient for it to be governed by the Conventions (see supra the text accompanying note 116). The Vienna Convention, however, gave up this highly criticized approach; for more details, see also Boschiero, supra note 117, at 269.

206. See Article 1(1) CISG:

"This Convention applies to contracts of sale of goods between parties whose places of business are in different states:

(a) when the States are Contracting States;

(b) when the rules of private international law lead to the application of the law of a Contracting State."

207. It is common understanding that it is not necessary that both prerequisites be met in order for the CISG to be applicable; see, e.g., Ferrari, supra note 159, at 31; Herber, supra note 120, at 53; Memmo, supra note 6, at 205; Herrmann Pünder, Das Einheitliche UN-Kaufrecht -- Anwendung kraft kollisionsrechtlicher Verweisung nach Art. 1 Abs. 1 lit. b. UN-Kaufrecht, RECHT DER INTERNATIONALEN WIRTSCHAFT 869, 869 (1990).

208. See Carbone & Lopez de Gonzalo, supra note 9, at 4.

209. For the evaluation of the criterion laid down in Article 1(1)(a) in terms of leading to the "direct" -- or "immediate" -- application of the CISG, see, e.g., Ferrari, supra note 100, at 13; Ulrich Magnus, Zum räumlich-internationalen Anwendungsbereich des UN-Kaufrechts und zur Mängelrüge, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 390, 390 (1993); Reinhart, supra note 139, at 13.

210. For identical affirmations, see Herber, supra note 120, at 52; Kindler, supra note 133, at 777; Reczei, supra note 125, at 518; Siehr, supra note 145, at 591-593.

211. This was true under the Hague Conventions as well; in this respect, see, e.g., the case decision rendered by the OLG Frankfurt, February 9, 1979, reprinted in Schlechtriem & Magnus, supra note 168, 110-111.

212. For the parties' possibility to exclude the CISG, see infra the text accompanying notes 586-663.

213. For this conclusion, see also Magnus, supra note 156, at 43-44.

214. For this conclusion, see also Boschiero, supra note 117, at 269; Herber & Czerwenka, supra note 43, at 19; Sacerdoti, supra note 107, at 738.

215. For this solution, see also Isaak I. Dore, Choice of Law Under the International Sales Convention: A U.S. Perspective, 77 AM. J. INT'L L. 521, 538 (1981), stating that when the forum State is a third non-Contracting State and its rules of private international law point to a "second non-Contracting State, the forum should apply the domestic law of that state. Finally, when the rules of the forum require the application of its own law, then domestic law would govern."

216. The CISG might still be applicable, but only by virtue of its opting-in. For a discussion of the possibly of opting-in, see infra the text accompanying notes 664-674.

217. See, however, the following recent court decisions which applied the CISG by virtue of its Article 1(1)(a): BGH, March 8, 1995, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 595 (1995); BGH, February 15, 1995, reprinted in Wertpapier-mitteilungen 1103 (1995); LG Oldenburg, November 9, 1994, reported in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 438 (1995); LG Frankfurt, July 13, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 1264 (1994), LG Gieben, July 5, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT 438 (1994); OLG München, March 2, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 1075 (1994); LG Aachen, May 14, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 760 (1993); Compromex, May 4, 1993, published in DIARIO OFICIAL 17 (1993); Metropolitan Court Budapest, March 24, 1992, reported in CASE LAW ON UNCITRAL TEXTS (case 52); LG Heidelberg, July 3, 1992, reported in DIRITTO DEL COMMERCIO INTERNAZIONALE 655 (1993); Tribunal of Buenos Aires, May 20, 1991, reported in CASE LAW ON UNCITRAL TEXTS (case 21).

For an arbitral award applying the CISG by virtue of its Article 1(1)(a), see Arbitral Tribunal ICC, No. 7153, reprinted in JOURNAL DU DROIT INTERNATIONAL 1005, 1005 (1992).

218. For this conclusion, see also Witz, supra note 68, at 24.

219. See infra the text accompanying notes 238-306.

220. See Witz, supra note 68, at 24.

221. For a detailed discussion of the concept of "Contracting State," see Ferrari, supra note 159, at 33-35.

222. See Article 91(2) CISG: "This Convention is subject to ratification, acceptance or approval by the signatory States."

223. See Article 91(3) CISG: "This Convention is open for accession by all States which are not signatory States as from the date it is open for signature."

224. Although Articles 91(2) and 91(3) use different terms, there is no substantial difference between ratification, acceptance, approval and accession with respect to the applicability of the CISG. For a similar statement, see, e.g., Enderlein & Maskow, supra note 58, at 372, arguing that "no difference is made in assessing the importance of a signatory State [i.e., of those States ratifying, accepting or approving the Convention] and States which had acceded later."

225. See Article 99(1) & (2) CISG:

"(1) This Convention enters into force, subject to the provision of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92.

"(2) When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect to that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of ratification, acceptance, approval or accession."

226. See Article 100(1) CISG: "This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph 1(a) or the Contracting State referred to in 1(b) of Article 1."

According to Martin Karollus, Der Anwendungsbereich des UN-Kaufrechts im Überblick, JURISTISCHE SCHULUNG 378, 380 (1993), in order for Part II of the CISG to be applicable, the expedition of the acceptance is sufficient. However, this seems to contrast with the text of Article 100(1) CISG.

227. Enderlein et al., supra note 48, at 300.

228. See the decision rendered by the Italian Supreme Court, Cass. civ., October 24, 1988, reprinted in GIUSTIZIA CIVILE 1888, 1889 (1989).

For other judicial affirmations of Article 100(1), see also Rechtbank Arnhem, May 27, 1993, published in 12 NEDERLANDS INTERNATIONAAL PRIVAATRECHT 327, 328 (1994) (relying upon Art. 100(1) to rightly exclude the applicability of the CISG to a contract concluded in 1990 between a Dutch seller and a German buyer); Rechtbank Arnhem, October 22, 1992, reprinted in 11 NEDERLANDS INTERNATIONAAL PRIVAATRECHT 185, 186 (1993) (justifying the decision not to apply the CISG to an international sales contract concluded in 1991 between an English seller and a Dutch buyer by quoting Art. 100(1)); Hof 's-Hertogenbosch, November 27, 1991, reported in 10 NEDERLANDS INTERNATIONAAL PRIVAATRECHT 337, 338 (1992) (excluding ex Art. 100 -- and 99 -- the CISG's applicability to a contract concluded in 1989 between a German seller and a Dutch buyer).

229. See Article 100(2) CISG: "This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph 1(a) or the Contracting State referred to in subparagraph 1(b) of article 1."

230. Enderlein & Maskow, supra note 58, at 389.

231. For the distribution of the theory of reception in European as well as in South American countries, see respectively Franco Ferrari, A Comparative Overview of Offer and Acceptance Inter Absentes, 10 BOSTON U. INT'L L.J. 171, 197 (1992); Franco Ferrari, Formation of Contracts in South American Legal Systems, 16 LOY. L.A. INT'L & COMP. L.J. 629, 653-654 (1994).

232. Rudolf B. Schlesinger, General Reports, in 1 FORMATION OF CONTRACTS. A STUDY OF THE COMMON CORE OF LEGAL SYSTEMS 75, 159 (Rudolf B. Schlesinger ed., 1968).

233. For a more detailed discussion of the "mail-box-rule," as well as for its distribution, see Franco Ferrari, Formazione del contratto, in ATLANTE DI DIRITTO PRIVATO COMPARATO, supra note 8, 67 at 79 ff.

234. For this conclusion, see also Ferrari, supra note 159, at 34.

235. See Article 92 CISG:

"(1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention.

"(2) A Contracting State which makes a declaration in accordance with the preceding paragraph in respect to Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect to the matters governed by the Part to which the declaration applies."

Up until now, only Denmark, Finland, Norway and Sweden have made use of the possibility provided for by Article 92(1), and, more precisely, of the possibility of excluding Part II of the CISG (for a complete list of reservations made by each signatory State, see, most recently, Journal of Law and Commerce CISG Contracting States and Declarations Table, 14 J.L. & COM. 235 (1995)). These States have excluded the rules on the formation of contracts since their domestic rules are characterized by the so-called Löfte-theory which is not compatible with the rules set out in Part II of the Convention. For a short explanatory reference to the Löfte-theory, see 2 Konrad Zweigert & Hein Kötz, EINFÜHRUNG IN DIE RECHTS-VERGLEICHUNG. INSTITUTIONEN 43 (2d ed., Tübingen 1984).

236. For this conclusion, see also Ferrari, supra note 159, at 35.

237. This effect has also been recognized by Franco Ginatta, Spunti sui criteri di collegamento e le riserve alla Convenzione, in LA VENDITA INTERNAZIONALE, supra note 32, 385 at 387-388, where the author makes the example of a sales contract "concluded between two parties who have decided to derogate from the effect of some provisions of the Uniform Sales Law and who have their places of business in States which have made a reservation according to Article 92(1). In this case, the international sales contract is governed, in respect to certain issues, by the parties' will, in other matters, by the Uniform Sales law and by domestic rules of a given State. This will result ... in dépeçage... ." (emphasis in original).

For a detailed discussion of the phenomenon of dépeçage, see, e.g., Erik Jayme, Betrachtungen zur dépeçage im internationalen Privatrecht, in FESTSCHRIFT FÜR KEGEL 253 (Stuttgart/Berlin/Köln/Mainz. 1987); Willis L.M. Reese, Dépeçage. A Common Phenomenon in Choice of Law, 73 COLUM. L. REV. 58 (1973).

238. For this statement, see also Ferrari, supra note 159, at 35-36.

239. For this definition, see Giuseppe Cassoni, La compravendita nelle convenzioni e nel diritto internazionale privato, RIVISTA DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE 429, 434 (1982).

240. For the text of this paragraph, see supra note 206.

241. See Schlechtriem, supra note 92, at 24 n.45, where the author asserts that the Vienna Sales Convention can be applicable even if both parties do not have their places of business in Contracting States: "In cases where both parties do not have their places of business in Contracting States, Article 1(1)(b) leads to the application of CISG not only by the courts of Contracting States but also by the courts of non-Contracting States, provided the private international law of the non-Contracting State makes applicable the sales law of a Contracting State... ."

See also Enderlein & Maskow, supra note 58, at 29, according to whom the solution provided for by Article 1(1)(b) CISG "enables the Convention to be applied also to contracts between the parties of whom one, or in exceptional cases even two, does not have his place of business in a Contracting State." (emphasis in original)

242. At this point, one has to mention, at least briefly, the issue as to whether the expression "law" is to be considered as including the rules of private international law of the applicable law or whether it merely refers to the "substantive" law, i.e., is a renvoi admissible or not. According to the OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 15, it appears that the "law" referred to in Article 1(1)(b) is the substantive law. This appears even more probable, if one considers that "there is a general reluctance to inquire into the conflict of laws rules recognized by another jurisdiction, as suggested, for example, by the general disapproval of the doctrine of renvoi. This reluctance is supported by the difficulty of the inquiry and the possibility of circularity of the inquiry because of the differences in conflicts rules. The drafting history also suggests that the forum should apply the Convention if its own conflicts rules lead to a Contracting State," Winship, supra note 122, at 1.28.

However, it is here suggested that it is impossible to derive either from the Convention itself or from its legislative history a definite solution of this issue. The answer to the foregoing question must be derived from the rules of private international law of the forum. This means, for instance, that where the relevant conflicts rules are the rules laid down either in the EEC Convention on the Law Applicable to Contractual Obligations or in the 1955 Hague Convention on the Law Applicable to International Sales, no renvoi must be taken into account, these Conventions having excluded its admissibility (see, e.g., LG Aachen, April 3, 1990, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 491 (1990), expressly stating that Article 35 of the German Law introducing the German Civil Code [EGBGB], which corresponds to Article 15 of the EEC Convention, excludes the renvoi; for a reference to this case as well as to this issue in general, see also Witz, supra note 68, at 26 ff.). On the other hand, where the renvoi is admissible according to the conflicts rules of the forum, such as in Austria (for an Austrian case denying the CISG's applicability on the ground that the rules of private international law of the States to whose law the Austrian conflicts rules referred make applicable the law of a non-Contracting State, see Bezirksgericht für Handelssachen, February 20, 1992, published in RECHT DER WIRTSCHAFT 239 (1992)), the courts must inquire into the rules of private international law recognized by the State whose "law" is applicable.

243. For this statement, see also Carbone, supra note 32, at 71-73; Herber & Czerwenka, supra note 43, at 19; Siehr, supra note 145, at 592-593.

For a recent application of Article 1(1)(b), see OLG Dusseldorf, February 12, 1994, published in DER BETRIEB 2492 (1994).

244. For this Convention, see, among others, Michael J. Bonell, Il diritto applicabile alle obbligazioni contrattuali, RIVISTA DI DIRITTO COMMERCIALE 215 (1980); Hélène Gaudemet-Tallon, Le nouveau droit international privé des contrats, REVUE TRIMESTRIELLE DE DROIT EUROPÉEN 215 (1981); Andrea Giardina, La Convenzione comunitaria sulla legge applicabile alle obbligazioni contrattuali, RIVISTA DI DIRITTO INTERNAZIONALE 795 (1981); Antoine Kassis, LE NOUVEAU DROIT EUROPÉEN DES CONTRATS INTERNATIONAUX (Paris, 1993); Peter Kaye, THE NEW PRIVATE INTERNATIONAL LAW OF CONTRACT OF THE EUROPEAN COMMUNITY (1993); Ole Lando, The EEC Convention on the Law Applicable to Contractual Obligations, 24 COMMON MARKET L. REV. 159 (1987); Patrick R. Williams, The EEC Convention on the Law Applicable to Contractual Obligations, 35 INT'L & COMP. L.Q. 1 (1986).

245. In the Netherlands, the EEC Convention on the Law Applicable to Contractual Obligations entered into force on September 1, 1991, by virtue of a statute passed on January 31, 1991.

246. Note, however, that the coming into force of the 1980 Rome Convention on the Law Applicable to Contractual Obligations does not necessarily mean that the issue of what law is to be applied to an international sales contract must be solved by resorting to this Convention. Indeed, since Article 21 states that the Rome Convention "shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party," other rules might govern the foregoing issue, despite the Rome Convention's being in force. Thus, in the European countries where the 1955 Hague Convention on the Law Applicable to International Sales of Goods (reprinted in 1 AM. J. COMP. L. 275 (1952)) is still in force (such as in France and in Italy), one must resort to other rules of this Convention rather than those of the Rome Convention.

For a detailed examination of the rules of the 1955 Hague Convention, see, e.g., Kurt H. Nadelmann, The Uniform Law on the International Sale of Goods: A Conflict of Laws Imbroglio, 74 YALE L.J. 449 (1964).

Note, that the 1955 Hague Convention is supposed to be substituted with the 1985 Hague Convention on the Law Applicable to Sales (reprinted in INTERNATIONAL LEGAL MATERIALS 1573 (1985)); for a detailed discussion of this Convention, see, e.g., Nerina Boschiero, La nuova convenzione dell'Aja sulla legge applicabile alla vendita internazionale, RIVISTA DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE 507 (1986); Ole Lando, The 1955 and 1985 Hague Conventions on the Law Applicable to the International Sale of Goods, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 155 (1993); Ole Lando, The 1985 Hague Convention on the Law Applicable to Sales, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 60 (1987); Y. Loussouarn, La Convention de La Haye d'octobre 1985 sur la loi applicable aux contrats de vente internationale de marchandises, REVUE CRITIQUE DE DROIT INTERNATIONALE PRIVÉ 271 (1986); Campbell McLachlan, The New Hague Sales Convention and the Limits of the Choice of Law Process, L.Q. REV. 591 (1986); Guido Napolitano, Il progetto di una nuova Convenzione sulla legge applicabile alla compravendita internazionale, DIRITTO COMUNITARIO E DEGLI SCAMBI INTERNAZIONALI 19 (1985); Guido Napoletano, La Convenzione dell'Aja del 30 ottobre 1985 sulla legge applicabile alla compravendita internazionale di merci, DIRITTO COMUNITARIO E DEGLI SCAMBI INTERNAZIONALE 31 (1986).

247. For a detailed discussion of the concept of "closest connection," see, for instance, Roberto Baratta, IL COLLEGAMENTO PIÙ STRETTO NEL DIRITTO INTERNAZIONALE PRIVATO DEI CONTRATTI (Padova, 1991).

248. For this conclusion, see also Ferrari, supra note 159, at 36-37.

249. Several papers have been written on the "choice of law" under the EEC Convention; see, e.g., Gerardo Broggini, La scelta della legge applicabile nella convenzione di Roma, FORO PADANO II 47 (1992); Samuel Cohen, The EEC Convention and U.S. Law Governing Choice of Law for Contracts with Particular Emphasis on the Restatement Second: A Comparative Study, 13 MD. J. INT'L L. & TRADE 223 (1989); Benedetto Conforti, La volontà delle parti come criterio di collegamento, in LA CONVENZIONE DI ROMA SULLA LEGGE APPLICABILE ALLE OBBLIGAZIONI CONTRATTUALI 145 (Consiglio Nazionale del Notariato ed., Milan, 1983); Alberto de Donatis, L'AUTONOMIA DELLE PARTI E LA SCELTA DELLA LEGGE APPLICABILE AL CONTRATTO INTERNAZIONALE (Padova, 1991); Anthony J.E. Jaffey, Choice of Law in Relation to Ius dispositivum with Particular Reference to the EEC Convention on the Law Applicable to Contractual Obligations, in CONTRACTS CONFLICTS 33 (Peter North ed., 1982); Friedrich K. Juenger, Parteiautonomie und objektive Anknüpfung im EG-Uberienkommen zum internationalen Vertragsrecht, in RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 57 (1982); Ole Lando, New American Choice-of-Law Principles and the European Conflict of Laws of Contracts, 30 AM. J. COMP. L. 19 (1982); Russell J. Weintraub, How to Choose Law for Contracts and How Not to: The EEC Convention, 17 TEX. INT'L L.J. 155 (1982).

250. See, e.g., Williams, supra note 244, at 11, stating that "[t]he freedom afforded to the contracting parties [by the EEC Convention] to choose the law to govern the contract is a rule currently prevailing in the private international law of all Member States and also in most other countries." (footnotes omitted)

251. See, however, the decision of the Tribunale di Monza, March 29, 1993, reprinted in FORO ITALIANO 916 ff. (1994) [and translated into English in 15 J.L. & COM. (1995)], which expressly states that the rules of private international law to which Article 1(1)(b) refers, do not include the principle of party autonomy and, therefore, it made applicable the domestic sales law to an international sales contract, even though the parties had expressly chosen the law of a Contracting State to be the law applicable to their contractual relationship.

This court decision stating that the parties' choice of law is not part of the private international law referred to in Article 1(1)(b) has been strongly criticized, see, most recently, Franco Ferrari, Diritto uniforme della vendita internazionale: questioni di applicabilità e diritto internazionale privato, RIVISTA DI DIRITTO CIVILE [669-685 (1995)] [translated in 15 J.L. & COM. 159-174 (1995)]; for a critical reference to the foregoing decision, see also Witz, supra note 68, at 25-26.

252. See for example, OLG Dusseldorf, January 8, 1993, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 999 (1993) (applying the CISG -- by virtue of the choice of German law -- to a contract concluded between a Turkish seller and a German buyer at a date at which Germany was a Contracting State but not Turkey).

253. For a discussion of the law applicable to contractual obligations absent choice of law (or where the choice of law is invalid), see, most recently, Manlio Frigo, La determinazione della legge applicabile in mancanza di scelta dei contraenti e le norme imperative nella Convenzione di Roma, in LA CONVENZIONE DI ROMA SUL DIRITTO APPLICABILE AI CONTRATTI INTERNAZIONALI 17 (Giorgio Sacerdoti & Manlio Frigo ed., Milan 1994).

254. See Article 4(1) EEC Convention: "To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country."

255. See, most recently, Rechtbank Amsterdam, October 5, 1994, reprinted in 13 NEDERLANDS INTERNATIONAAL PRIVAATRECHT 195, 195 (1995), stating that when "[de] partijen geen rechtskeuze hebben kenbaar gemaakt, worden ingevolge art. 4 lid 1, van het hier toepasselijke Verdrag van Rome van 19 juni 1980 inzake het recht dat van toepassing is op verbintenissen uit overeenkomst...de koopovereenkomsten beheerst door het recht van het land waarmee zij het nauwst zijn verbonden."

256. For writings on the concept of "characteristic performance," see, among others, J. Blaikie, Choice of Law in Contract: Characteristic Performance and the EEC Contacts Convention, SCOTS LAW TIMES 241 (1983); Hans-Ulrich Jesserun d'Oliveira, Characteristic Obligation in the Draft EEC Obligation Convention, 25 AM. J. COMP. L. 303 (1977); Kurt Lipstein, Characteristic Performance, A New Concept in the Conflict of Law in Matters of Contract for the EEC, 3 NW. J. INT'L L. & BUS. 402 (1981); H. Kaufmann-Kohler, La prestation charactéristique en droit international privé des contrats et l'influence de la Suisse, Schweizer Jahrbuch für Internationales Recht 195 (1989); Massimo Magagni, LA PRESTAZIONE CARATTERISTICA NELLA CONVENZIONE DI ROMA DEL 19 GIUGNO 1980 (Milan 1989); Paolo Michele Patocchi, Characteristic Performance: A New Myth in the Conflict of Laws? Some Comments on a Recent Concept in the Swiss and European Private International Law of Contract, in FESTSCHRIFT FÜR LALIVE 113 (Paris 1993); Nicky Richardson, The Concept of Characteristic Performance and the Proper Law Doctrine, 1 BOND L. REV. 284 (1989).

257. See Article 4(2) EEC Convention:

"Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of the conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated."

258. Kaye supra note 244, at 181.

For this statement, see, in legal writing, also Andrea Giardina, Volontà della parti, prestazione caratteristica e collegamento più significativo, in VERSO UNA DISCIPLINA COMUNITARIA DELLA LEGGE APPLICABILE AI CONTRATTI 3, 14 (Tullio Treves ed., Padova, 1983); Ugo Villani, Aspetti problematici della prestazione caratteristica, in LA CONVENZIONE DI ROMA SULLA LEGGE APPLICABILE ALLE OBBLIGAZIONI CONTRATTUALI 17, 22 (Tito Ballarino ed., Padova, 1994).

See also OLG Koblenz, January 16, 1992, reported in RECHT DER INTERNATIONALEN WIRTSCHAFT 1021, 1024 (1992), expressly stating that "the payment of money does never constitute the characteristic performance."

259. Note, that the presumption set forth in Article 4(2) EEC Convention is rebuttable; see Article 4(5) EEC Convention: Paragraph "shall not apply if the characteristic performance cannot be determined, and the presumption in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country."

260. For judicial applications of the principles set forth in the text, see, among others, OLG Köln, October 16, 1992, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 143, 144 (1993); OLG Frankfurt a.M., September 17, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 950, 951 (1991); LG Frankfurt, September 16, 1991, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 952, 953 (1991); LG Hamburg, September 26, 1990, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 400, 401 (1991); LG Aachen, April 3, 1990, published in RECHT DES INTERNATIONALEN WIRTSCHAFT 491, 492 (1990).

261. See, e.g., Bernard Audit, L'application en France de la convention de Rome sur la loi applicable aux obligations contractuelles, in LA CONVENZIONE DI ROMA SULLA LEGGE APPLICABILE ALLE OBBLIGAZIONI CONTRATTUALI 41, 43 (Verona 1994); Th.M. de Boer, Een Hollandse kijk op het EEG-Overeenkomstenverdrag: het Balenspers-arrest, 42 ARS AEQUI 207, 210 (1993).

262. See, apart from the court decisions quoted supra in note 260, OLG München, March 2, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS REPORT 1075, 1076 (1994); OLG Düsseldorf, February 10, 1994, reported in RECHT DER INTERNATIONALEN WIRTSCHAFT 53, 54 (1995); KG Berlin, January 24, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 683, 683 (1994); OLG Karlsruhe, November 20, 1992, reprinted in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 1316, 1316 (1993); OLG Köln, October 2, 1992, reported in RECHT DER INTERNATIONALEN WIRTSCHAFT 1021, 1024 (1992); OLG Frankfurt, June 13, 1991, published in NEUE JURISTISCHE WOCHENSCHRIFT 3102, 3102 (1991); AG Oldenburg i.H., April 24, 1990, reprinted in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 336, 337 (1991); LG Stuttgart, August 31, 1989, reproduced in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFARHRENSRECHTS 317, 317 (1990).

263. See, most recently, Rechtbank Amsterdam, October 5, 1994, reprinted in 13 NEDERLANDS INTERNATIONAAL PRIVAATRECHT 195, 195 (1995), stating that "[i]ngevolge art. 4, lid 2 van het [Verdrag vam Rome] wordt vermoed dat [het land waarmee de koopovereenkomsten het nauwst zijn verbonden] het land is waar de partij die de kenmerkende prestatie verricht, is gevestigd. [B]ij de koopovereenkomsten [wordt] de kenmerkende prestatie verricht door verkoper."

264. See, e.g., Arbitral Tribunal ICC, No. 7197, reprinted in JOURNAL DU DROIT INTERNATIONAL 1028, 1030 (1993).

265. For the possibility and the effects of a limitation of the scope of Article 1(1)(b), see infra the text accompanying notes 274-306.

266. For a discussion of the problems raised by one of the parties having its place of business in a Contracting reservatory State or by the forum being located in such a State, see infra the text accompanying notes 281-306.

267. For this conclusion, see also Ferrari, supra note 159, at 36; Piltz, supra note 21, at 1102.

268. See Henri Battifol, Observations, ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 144, 144, (1979).

269. See Herber, supra note 119, at 36-37, where the author criticizes the adoption of the choice-of-law application of the CISG and states that it constitutes a regression in respect to the progress made under the 1964 Hague Conventions where recourse to the rules of private international law in view of their applicability was inadmissible. For further criticism, see also Naon, supra note 147, at 98; Karollus, supra note 226, at 379.

270. Many scholars have welcomed the extension of the CISG's sphere of application by the means of Article 1(1)(b); see, e.g., Czerwenka, supra note 194, at 162; Ulrich Huber, Der UNCITRAL-Entwurf eines Ubereinkommens über internationale Warenkaufverträge, RABELS ZEITSCHRIFT FÜR AUSLÄDISCHES UND INTERNATIONALES PRIVATRECHT 413, 424 (1979); Pelichet, supra note 21, at 39; Volken, supra note 88, at 96.

271. Note, however, that according to Schlechtriem, supra note 92, at 24 n.45, the criterion of applicability set forth in Article 1(1)(b) "revives the spectres which were raised in conjunction with the Hague Conventions."

See also Herber, supra note 119, at 36, where the author argues that by virtue of the criterion set forth in Article 1(1)(b), the sphere of application of the CISG corresponds to the "universalist" approach of the Hague Conventions. According to Reinhart, supra note 139, at 14, the sphere of application of the CISG seems to be even more extended than that of the ULIS and ULF.

272. For this statement, see also Boschiero, supra note 117, at 270; Carbone, supra note 32, at 72; Ferrari, supra note 100, at 10.

273. For a recent application of this principle, see OLG Köln, October 2, 1992, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 1021, 1022 (1992).

274. For a criticism of Article 1(1)(b), see, apart from the authors quoted supra in note 269, Gyula Eörsi, A propos the 1980 Vienna Convention on Contract for the International Sale of Goods, 31 AM. J. COMP. L. 333, 353 (1983); Rolf Herber, Anwendungsvoraussetzungen und Anwendungsbereich des Einheitlichen Kaufrechts, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 97 at 99-100; Reczei, supra note 125, at 518-519; Sacerdoti, supra note 107, at 739-740.

275. See also Boschiero, supra note 117, at 271; Ferrari, supra note 159, at 39, with further references.

276. Luzzatto, supra note 21, at 510.

Various authors have stressed that mostly Socialist countries have criticized Article 1(1)(b) for the reasons indicated in the text; see, apart from the authors quoted in the preceding note, Cassoni, supra note 239, at 435; Reczei, supra note 125, at 520-521; Winship, supra note 122, at 508.

Note, however, that according to Volken, supra note 90, at 29, the criticism of the conflicts-of-law application of the CISG is due to other circumstances: "unfortunately ... government officials and contract lawyers are often not very familiar with the principles of private international law. For this reason the Vienna Diplomatic Conference of 1980 accepted a reservation under Art. 95 of the Convention."

277. This consequence has not always been well accepted; see, e.g., Gerold Herrmann, Einheitliches Kaufrechts für die Welt: UN-Übereinkommen über internationale Warenkaufverträge, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 109, 111 (1981) (stating that the introduction of the possibility of making reservations under Article 95 is regrettable); Pelichet, supra note 21, at 41 (stating the same).

278. See Article 95 CISG: "Any State may declare at the time of the deposit of its instruments of ratification, acceptance, approval or accession that it will not be bound by subparagraph 1(b) of article 1 of this Convention."

279. Up to now, only the following States have made an Article 95 reservation: China, the Czech Republic, Slovakia and the United States. For this list, see Will, supra note 70, at 4 ff.

280. The Article 95 reservation does not have any impact on the "direct" application of the CISG, i.e., where the parties to an international sales contract have their places of business in Contracting States -- even if both are reservatory States -- the CISG will apply ex Article 1(1)(a).

281. For this solution, see, among others, Dore, supra note 215, at 537; Malcom Evans, Art. 95, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 654, 656; Pünder, supra note 207, at 872.

282. For a similar conclusion, see Richards, Note, supra note 147, at 222 (stating that where an Article 95 reservation has been declared, the application of the Convention in reservatory States is limited to contracts between parties having their places of business in different Contracting States).

283. See supra the text in note 280.

284. For this conclusion, see also Ferrari, supra note 100.

285. A similar solution has already been suggested by Winship, supra note 122, at 1.32, stating that a court from a reservatory State "might conclude after examining the facts that the law of a Contracting State, such as France, is the applicable law and apply the Convention although not bound by treaty to do so." (emphasis added)

See also Volker Behr, Commentary to Journal of Law and Commerce Case 1: Oberlandesgericht Frankfurt am Main, 12 J.L. & COM. 271, 272-273 (1993), stating that despite the Article 95 reservation, the courts of reservatory States "may very well be in a situation to apply CISG based on private international law. Courts of a State which has made such a reservation are not obliged to apply Article 1(1)(b). But when the State's private international law requires its courts to apply foreign law under which CISG is triggered, the court must apply CISG as part of that foreign law."

286. See supra the text accompanying notes 275 & 276.

287. For this conclusion, see also Pelichet, supra note 21, at 43-44, according to which in the line of cases discussed in the text the Convention is inapplicable only where the rules of private international law of the forum State which has declared an Article 95 reservation lead to the application of the law of the forum. Where, however, the rules of conflict of laws lead to the application of the law of a different Contracting State (independently from whether it is a reservatory or non-reservatory State), the Convention is always applicable.

288. For similar assertions, see Dore, supra note 215, at 538-539 (stating that when the forum is a third Contracting State and its rules of private international law lead to U.S. law, the forum should apply the U.C.C. instead of the Convention, since the United States declared an Article 95 reservation).

289. Evans, supra note 281, at 657.

For similar solutions, see also Heuzé, supra note 177, at 95-96; Karl Neumayer, Offene Fragen zur Anwendung des Abkommens der Vereinten Nationen über den internationalen Warenkauf, RECHT DER INTERNATIONALEN WIRTSCHAFT 99, 101 (1994); Pünder, supra note 207, at 872; SCHLECHTRIEM, supra note 92, at 27; Lajos Vekas, Zum persönlichen und räumlichen Anwendungsbereich des UN-Einheitskaufrechts, RECHT DER INTERNATIONALEN WIRTSCHAFT 342, 344 (1987); Lajos Vekas, Diskussionsbeitrag, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 108 at 109.

290. Several authors favor this solution; see, e.g., Czerwenka, supra note 194, at 159; Beate Czerwenka, Diskussionsbeitrag, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 109 at 109; Ferrari, supra note 159, at 41; Herber, supra note 64, at 342; Gerold Herrmann, Anwendungsbereich des Wiener Kaufrecht-Kollisonrechtliche Probleme, in WIENER KAUFRECHT. DER SCHWEIZERISCHE AUSSENHANDEL UNTER DEM ÜBEREINKOMMEN ÜBER DEN INTERNATIONALEN WARENKAUF 83, 89 (Eugen Bucher ed., Bern, 1991); Ole Lando, The 1985 Hague Convention on the Law Applicable to Sales, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 65, 82 (1987); Luzzatto, supra note 21, at 510; Burghard Piltz, Internationales Kaufrecht, NEUE JURISTISCHE WOCHENSCHRIFT 615, 619 (1989); Siehr, supra note 145, at 602.

291. For this argument, see also Ferrari, supra note 159, at 42; Kindler, supra note 133, at 778.

292. For this line of reasoning, see, e.g., Boschiero, supra note 117, at 272.

293. See, e.g., LG Hamburg, September 26, 1990, reported in RECHT DER INTERNATIONALEN WIRTSCHAFT 1015 (1990); OLG Frankfurt, June 13, 1991, published in NEUE JURISTISCHE WOCHENSCHRIFT 3102 (1991); OLG Frankfurt, September 17, 1991, reported in NEUE JURISTISCHE WOCHENSCHRIFT 633 (1992).

294. For a reference to this case law, see Magnus, supra note 68, at 205.

295. See the German statute introducing the CISG from July 5, 1989, published in BUNDESGESETZBLATT II 586 (1989).

296. In this regard, see UN Depositary Notification C.N. 365.1989, Treaties-3, dated March 16, 1990, where it is stated that "[t]he Government of the Federal Republic of Germany holds the view that Parties to the Convention that have made a declaration under article 95 of the Convention are not considered Contracting States within the meaning of subparagraph (1)(b) of article 1 of the Convention. Accordingly, there is no obligation to apply -- and the Federal Republic of Germany assumes no obligation to apply -- this provision when the rules of private international law lead to the application of the law of a Party that has made a declaration to the effect that it will not be bound by subparagraph (1)(b) or article 1 of this Convention."

For a short reference to this statute, see also Enderlein et al., supra note 48, at 294.

297. This is why the decision of the OLG Dusseldorf, July 2, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 845 (1993), has been criticized. In this case, the German court applied the CISG to a contract concluded between a German buyer and an American seller before the CISG entered into force in Germany and despite the statute mentioned in the text.

298. See, e.g., BGH, December 4, 1985, published in ENTSCHEIDUNGEN ZUM WIRTSCHAFTSRECHT 166 (1986); OLG Karlsruhe, April 14, 1978, reported in RECHT DER INTERNATIONALEN WIRTSCHAFT 544 (1978).

For a reference to this case law in support of the applicability in cases where the rules of private international law of a forum located in a Contracting State lead to the law of a Contracting reservatory State, see Herber, supra note 120, at 55.

299. See, e.g., Boschiero, supra note 117, at 272; Dore, supra note 215, at 537-538; Luzzatto, supra note 21, at 510-511; Jean-Pierre Plantard, Un nouveau droit uniforme de la vente internationale: La Convention des Nations Unies du 11 avril 1980, JOURNAL DU DROIT INTERNATIONAL 311, 321 (1988); Pünder, supra note 207, at 872; Reinhart, supra note 139, at 15; Sacerdoti, supra note 107, at 742.

300. See also Ferrari, supra note 85, at 923-924.

301. See, e.g., Rechtbank Amsterdam, December 7, 1994, published in 13 NEDERLANDS INTERNATIONAAL PRIVAATRECHT 196 f. (1995); Rechtbank Amsterdam, October 5, reported in 13 NEDERLANDS INTERNATIONAAL PRIVAATRECHT 195 (1995).

The applicability of the CISG in cases where the forum is located in non-Contracting States cannot be based upon Article 1(1)(b), since the courts of non-Contracting States are not bound by this Article (see Pünder, supra note 207, at 872). For a more detailed criticism of the reasoning behind the two aforementioned Dutch court decisions, see Franco Ferrari, CISG Art. 1(1)(b) and Related Matters: Brief Remarks on the Occasion of a Recent Dutch Court Decision, NEDERLANDS INTERNATIONAAL PRIVAATRECHT 317 ff. (1995).

302. See, e.g., Arbitral Tribunal ICC, No. 7197, reported in JOURNAL DU DROIT INTERNATIONAL 1028, 1031 (1993).

303. For this solution, see also Kindler, supra note 133, at 778; Pelichet, supra note 21, at 44; Siehr, supra note 145, at 610.

304. For this solution, see also Ferrari, supra note 159, at 42-43.

305. See, e.g., Herber, supra note 120, at 54; Magnus, supra note 156, at 50; Pelichet, supra note 12, at 38-39; Plantard, supra note 299, at 321; Pünder, supra note 207, at 872; Reinhart, supra note 139, at 14.

306. See, e.g., LG München, July 3, 1989, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 316 (1990); LG Stuttgart, August 31, 1989, reported in RECHT DER INTERNATIONALEN WIRTSCHAFT 984 (1989); LG Aachen, April 3, 1990, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 491 (1990); AG Oldenburg, April 24, 1990, reported in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 336 (1991); LG Hamburg, September 26, 1990, reprinted in EUROPÄISCHE ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT 181 (1991); AG Frankfurt, January 31, 1991, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 345 (1991); OLG Frankfurt, June 15, 1991, reported in RECHT DER INTERNATIONALEN WIRTSCHAFT 591 (1991); LG Baden-Baden, August 14, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 62 (1992); Rechtbank Amsterdam, October 5, 1994, published in NEDERLANDS INTERNATIONAAL PRIVAATRECHT 195 (1995); Rechtbank Amsterdam, December 7, 1994, reported in NEDERLANDS INTERNATIONAAL PRIVAATRECHT 196 (1995).

307. For this statement, see also Magnus, supra note 156, at 51.

308. For an arbitral tribunal applying the CISG to an international sales contract both parties to which had their place of business in Contracting States, see Arbitral Tribunal ICC, No. 7153, reported in 14 JOURNAL OF LAW AND COMMERCE 217 (1995).

309. See, e.g., Arbitral Tribunal ICC, No. 7197, reported in JOURNAL DU DROIT INTERNATIONAL 1028 (1993).

310. See Arbitral Tribunal ICC, No. 5713, reported in YEARBOOK OF COMMERCIAL ARBITRATION 70 (1990).

311. Id.

312. See Watkins-Johnson Co. 7 Watkins Johnson Ltd. v. The Islamic Republic of Iran & Bank Saderat Iran (Award No. 429-370-1).

313. See Peter Schlechtriem, Vienna Sales Convention 1980 (recent developments) -- Developed Countries, paper presented at the Conference for International Business Law (Singapore, September 1992), stating that "[b]y applying the CISG as trade usages, regardless of whether it was applicable as law, the doors for the application of the CISG are wide open. It has to be assumed that this [arbitral award, No. 5713] is not an exceptional case."

314. For criticism, see, among others, Richard Hyland, Note on ICC Arbitration Case No. 5173 of 1989, in 2 GUIDE TO PRACTICAL APPLICATIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 3 (Albert H. Kritzer ed., 1994, loose-leafed.).

315. See, e.g., John C. Reitz, A History of Cutoff Rules as a Form of Caveat Emptor: Part I -- The 1980 U.N. Convention on the International Sale of Goods, 36 AM. J. COMP. L. 437, 471 n.127 (1988), stating that "[m]erchants custom does not appear to have played as significant a role in the drafting of the CISG. Proponents of the notice rule, for example, do not appear to have based their arguments to any significant extent on custom."

316. See Hyland, supra note 314, at 11, stating, with reference to the provisions of the CISG applied by the Arbitral Tribunal ICC in case No. 5713, that "the source of the CISG's conformity provisions was not a uniform commercial practice, as found, for example, in standard terms frequently employed in international commercial contracts. Rather, those provisions represent a careful political compromise between those states that demanded shorter periods for inspection and notice of defects and those states that had hoped that the CISG would permit even longer periods. In other words, there is no reason to believe that the CISG rules on this question rest on the generalized trade practice."

317. See Hyland, supra note 314, at 12-13, stating that "[d]eveloped legal systems generally apply to a contract the law that was in force at the time the contract was concluded... . The notion of freedom of contract is thought to mandate that, absent very good reasons, the law in force at the time the contract is concluded will continue to govern that contract despite modifications in the applicable law. Thus, the CISG could not be applied, even by analogy, to the contract."

318. For a series of State court decisions holding that the CISG is inapplicable to contracts concluded before its coming into force, see the decisions quoted supra in note 228. See also Camara Nacional de Apelaciones en lo Commercial, March 15, 1991, reported in CASE LAW ON UNCITRAL TEXTS (case 22).

319. See Arbitral Tribunal ICC, No. 6281, published in 15 YEARBOOK OF COMMERCIAL ARBITRATION 96 (1990).

320. For a distinction between the spatial and personal prerequisites on the one hand, and the prerequisites ratione materiae on the other hand, see also Carbone & Lopez de Gonzalo, supra note 9, at 4-5, Ferrari, supra note 159, at 44.

321. For a reference to where to find the official French and English texts of the CISG, see supra note 29.

322. It has often been pointed out that the Hague Conventions did not define the "sales contract"; see, among others, Frignani, supra note 105, at 264; Herber, supra note 166, at 8.

323. See also Philippe Kahn, Convention de Vienne du 11 avril 1980. Caractères et domaine d'application, DROIT ET PRATIQUE DU COMMERCE INTERNATIONAL 385, 387 (1989); Fabio Padovini, Der internationale Kauf: Von den Haager Konventionen zur Wiener Konvention -- Erfahrungen und Aussichten, ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 87, 91 (1987); Piltz, supra note 21, at 23; Claude Samson, La Convention des Nations Unies sur les contrats de vente internationale de marchandise: Etude comparative des dispositions de la Convention et des règles de droit québécois en la matière, 23 CAHIERS DE DROIT 919, 927 (1982).

324. For this justification, see Bernardini, supra note 21, at 85 (stating that the definitions of sales contracts which can be found in the various legal systems do not differ to the point that an express definition became necessary); Memmo, supra note 6, at 189 (stating that "as far as the concept of 'sale' is concerned, there are no such differences which require the legislature to define it"); Fabio Padovini, La vendita internazionale dalle convenzioni dell'Aja alla convenzione di Vienna, RIVISTA DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE 47, 52 (1987) (asserting that "the Vienna Sales Convention does not contain any definition of a sales contract. This lack [of definition], which can be justified for several aspects, is not very important since the concept of sale is substantially the same in the different legal systems").

325. See, for example, Lopez de Gonzalo, supra note 114, at 906, according to whom the choice of not defining the sales contract can be justified on the ground that the differences cannot be overcome: "This choice [of not defining the sales contract] is based upon the opportunity of avoiding to burden the drafting of the conventional text with diagnostic questions on which no consensus could be found, given the different legal traditions, and which in practice do not cause too many interpretative questions."

For an overview of several definitions of sales contracts to be found in some European codes, see, e.g., Del Duca & Del Duca, supra note 68, at 348 n.35 (quoting the French, German and Italian definitions to be found in the respective civil codes).

326. For this conclusion, see also Enderlein & Maskow, supra note 58, at 27 (stating that "[t]he description of what is a contract of sale, whose existence is the first decisive criterion for the application of the Convention, follows in particular from the provisions on the obligations of the seller (Article 30) and of the buyer (Article 53). Both taken together could be conceived as a definition of the contract of sale"); Kritzer, supra note 56, at 69 (stating that the Convention does not contain a section on the definition of the sales contract. However, taken together, Articles 30 and 53, which identify the elements of a sale, are said to constitute a definition).

For a discussion of the rights and duties of both buyer and seller, see, e.g., Fritz Enderlein, Rights and Obligations of the Seller under the UN Convention on Contracts for the International Sale of Goods, in INTERNATIONAL SALE OF GOODS. DUBROVNIK LECTURES, supra note 12, 133; E. Allan Farnsworth, Rights and Obligations of the Seller, in WIENER UBEREINKOMMEN, supra note 79, 83; Friedrich Niggemann, Die Pflichten des Verkäufers und die Rechtsbehelfe des Käufers, in DAS EINHEITLICHE WIENER KAUFRECHT, supra note 199, 77; Jean-Pierre Plantard, Droits et obligations de l'acheteur, in WIENER UBEREINKOMMEN, supra note 79, 111; Willibald Posch, Die Pflichten des Käufers und die Rechtsbehelfe des Verkäufers, in DAS EINHEITLICHE WIENER KAUFRECHT, supra note 199, 143; Peter Schlechtriem, Die Pflichten des Käufers und die Folgen ihrer Verletzung, insbesondere bezüglich des Beschaffenheit der Ware, in WIENER KAUFRECHT, supra note 290, 103; Leif Sevón, Obligations of the Buyer under the UN Convention on Contracts for the International Sale of Goods, in INTERNATIONAL SALE OF GOODS. DUBROVNIK LECTURES, supra note 12, 203; Pierre Tercier, Droits et obligations de l'acheteur, in WIENER UBEREINKOMMEN, supra note 79, 119; Pierre Widmer, Droits et obligations du vendeur, in WIENER UBEREINKOMMEN, supra note 79, 91; Wolfgang Wiegand, Die Pflichten des Käufers und die Folgen ihrer Verletzung, in WIENER UBEREINKOMMEN, supra note 79, 143.

327. Memmo, supra note 6, at 189.

Bernardini, supra note 21, at 85, as well, points out, that the economic function of exchange of goods for a price constitutes a center of reference to be used in order to identify without contrasts a uniform definition of the sales contract as governed by the CISG.

328. See Article 1(3) CISG: "Neither the nationality of the parties nor the civil or commercial character of the parties or the contract is to be taken into consideration in determining the application of this Convention."

329. See Del Duca & Del Duca, supra note 68, at 350, stating that "[i]n determining whether a particular transaction qualifies as a 'sale of goods' and is therefore subject to the CISG, the general understanding within the international community of what constitutes a 'contract for the sale of goods' (subject to any specific provision in the CISG to the contrary) would therefore appear to be applicable. Such an approach would be consistent with the rule of construction set forth in Art. 7."

330. For a very similar definition based as well upon Articles 30 and 53, see Maximilian Endler & Jan Daub, Internationale Softwareüberlassung und UN-Kaufrecht, COMPUTER UND RECHT 601, 601 (1993); Herber & Czerwenka, supra note 43, at 16; Magnus, supra note 156, at 30; Piltz, supra note 21, at 23.

331. See, for a more detailed discussion of this issue, Ferrari, supra note 159, at 46-47.

332. For an overview of legal systems based upon the rule according to which the conclusion of a sales contract immediately transfers the property of moveables (provided that the goods are specified, existing and belonging to the seller), see Francesco Galgano, Il trasferimento della proprietà per atto tra vivi. Il trasferimento della proprietà in civil law e common law, in ATLANTE DI DIRITTO PRIVATO COMPARATO, supra note 8, 103, 104-105; Rabel, supra note 164, at 29; Rodolfo Sacco, Le transfert de la propriété des choses mobilières détérminées par acte entre vifs en droit comparé, RIVISTA DI DIRITTO CIVILE 452 (1979).

333. For a discussion of this principle as well as of other principles which can govern the transfer of moveable goods, see Ulrich Drobnig, Transfer of Property, in TOWARDS A EUROPEAN CIVIL CODE 345 (Arthur Hartkamp et al. eds., Dordrecht, 1994); Franco Ferrari, Vom Abstraktionsprinzip und Konsensualprinzip zum Traditionsprinzip. Von den Möglichkeiten der Rechtsvereinheitlichung im Mobiliarsachenrecht, ZEITSCHRIFT FÜR EUROPÄISCHES PRIVATRECHT 52 (1993).

334. For a detailed discussion of the principles governing the transfer of moveable property in the Germanic legal systems (Austria, Germany and Switzerland), see, apart from the authors quoted in the preceding note, Franco Ferrari, Principio consensualistico ed "Abstraktionsprinzip," CONTRATTO E IMPRESA 889 (1992); Herbert Kronke, Il trasferimento della proprietà mobiliare per atto tra vivi. Il trasferimento della proprietà nel diritto tedesco, in ATLANTE DI DIRITTO PRIVATO COMPARATO, supra note 8, 108.

335. For this conclusion, see also Ferrari, supra note 159, at 46.

336. For a criticism of the exclusion of the transfer of property from the matters governed by the Uniform Sales Law, see Franco Ferrari, Abstraktionsprinzip, Traditionsprinzip e consensualismo nel trasferimento di beni mobili. Una superabile divaricazione?, RIVISTA DI DIRITTO CIVILE 729, 756-757 (1993).

337. See Article 4 CISG: "This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with:

(a) the validity of the contract or of any of its provisions or of any usage;

(b) the effect which the contract may have on the property in the goods sold."

338. For this affirmation, see also Magnus, supra note 156, at 77 & 83-84.

For a detailed analysis of the effects of the exclusion mentioned in the text, see Sampson, The Title-Passage Rule: Applicable Law under the CISG, 16 INT'L TAX J. 137 (1990).

339. See, e.g., LG Hamburg, September 26, 1990, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 400, 402 (1991).

340. See, in this respect, Herber & Czerwenka, supra note 43, at 16 (stating that the contracts modifying international sales contracts fall inside the scope of the CISG); Magnus, supra note 156, at 30 (stating the same).

Note, that this was true under the 1964 Hague Conventions as well; see, e.g., OLG Hamburg, March 3, 1982, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 435 f. (1982).

341. For this reasoning as well as for this conclusion, see also Ferrari, supra note 159, at 47-48; Herber, supra note 120, at 50.

342. See Article 73 CISG:

"(1) In the case of a contract for delivery of goods by instalments, if the failure of one party to perform any of his obligation in respect of any instalment constitutes a fundamental breach of contract with respect to that instalment, the other party may declare the contract avoided with respect to that instalment.

"(2) If one party's failure to perform any of his obligations in respect of any instalment gives the other party good grounds to conclude that a fundamental breach will occur with respect to future instalments, he may declare the contract avoided for the future, provided that he does so within a reasonable time.

"(3) A buyer who declares the contract avoided in respect of any delivery may, at the same time, declare it avoided in respect of deliveries already made or of future deliveries, if, by reason of their interdependence, those deliveries could not be used for the purpose contemplated by the parties at the time of the conclusion of the contract."

343. This view is favored, for instance, by Giorgio De Nova, L'ambito di applicazione ratione materiae della Convenzione di Vienna, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 749, 749 (1990); Herber, supra note 274, at 103; Magnus, supra note 156, at 30.

Note, however, that several authors have expressed doubts as to whether contracts for the delivery of goods by instalments fall inside the scope of the CISG; see, e.g., Padovini, supra note 323, at 91, stating that in order to be able to apply the Vienna Sales Convention to contracts for the delivery of goods by instalments the CISG must be interpreted very broadly.

344. See BGH, March 28, 1979, published in NEUE JURISTISCHE WOCHENSCHRIFT 1779 (1979).

345. See, e.g., Graveson et al., supra note 19, at 52 (stating that the 1964 Uniform Sales Laws did not apply to pure exchange contracts); Riese, supra note 19, at 18-19 (stating the same); Volken, supra note 90, at 33 (stating the same).

346. For this solution, see Ferrari, supra note 159, at 49; Herber, supra note 120, at 50; Hoyer, supra note 199, at 37; Huber, supra note 270, at 419; Karollus, supra note 59, at 25; Roland Loewe, INTERNATIONALES KAUFRECHT 27 (Vienna 1989); Magnus, supra note 156, at 32; Reinhart, supra note 139, at 13; Winship, supra note 122, at 1.24.

347. See, e.g., Brigitta Lurger, Die Anwendung des Wiener UNCITRAL-Kaufrechts-übereinkommens 1980 auf den internationalen Tauschvertrag und sonstige Gegengeschäfte, ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 415, 421 (1991).

348. For this view, see, e.g., Enderlein & Maskow, supra note 58, at 28, stating that "[a]n overwhelming number of arguments in our view speaks in favor of applying the Convention even in this case [barter]."

See also De Nova, supra note 343, at 749-750, stating that he favors the view that international countertrade transactions fall inside the scope of the CISG.

349. Enderlein & Maskow, supra note 58, at 28.

See also Dietrich Maskow, Art. 53, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 383, 386, stating that the Uniform Sales Law should apply to barter transactions as well, since "in genuine barter contracts both parties are sellers. Therefore, the Convention would not necessarily be excluded."

350. See Article 53 CISG: "The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention."

351. For this line of argument, see Piltz, supra note 21, at 24.

352. For this conclusion, see also Karollus, supra note 226, at 380; Magnus, supra note 156, at 33; Piltz, supra note 21, at 28.

353. See Enderlein & Maskow, supra note 58, at 28 (stating that "[t]he Convention cannot be applied to leasing contracts even if they contain a purchase option"). See also Ferrari, supra note 159, at 50.

Doubtful of this conclusion, see Laszlo Reczei, The Rules of the Convention Relating to Its Field of Application and to Its Interpretation, in PROBLEMS OF UNIFICATION OF INTERNATIONAL SALES LAW 53, 74 (1980), stating that "[i]t is not clear ... whether a leasing-contract, which guarantees to the leaseholder an option for the purchase of the object of lease, comes within the domain of the Convention. There are legal systems which do not consider leasing-contracts without option as leasing. According to others, an option qualifies the leasing-contract as sales contract."

354. For this reasoning, see, with further references, Ferrari, supra note 159, at 50; Magnus, supra note 156, at 33.

It is here suggested that, not unlike leasing contracts, hire-purchase contracts are excluded from the sphere of application of the CISG (for this conclusion, see also Czerwenka, supra note 194, at 146). The reason behind this exclusion is the economic function of this type of contract, which is not comparable to that of a sales contract.

Contra, in the sense that hire-purchase contracts do fall within the CISG's scope, see Herber, supra note 120, at 49; Magnus, supra note 156, at 33.

355. For a similar affirmation, see Winship, supra note 122, at 1.24, stating that consignment arrangements "under which the ... supplier will take back unsold units might not be within the convention because title to the goods may not be transferred to the consignee and payment is conditional on resale."

356. See LG Münster, August 25, 1977, reported in Schlechtriem & Magnus, supra note 168, at 107, applying the 1964 Hague Conventions to a consignment contract.

357. See Hof Amsterdam, July 16, 1992, published in NEDERLANDS INTERNATIONAAL PRIVAATRECHT 711 ff. (1992).

358. See, for a summary of the facts, Del Duca & Del Duca, supra note 68, at 349.

359. See OLG Koblenz, May 24, 1985, reported in Schlechtriem & Magnus, supra note 168, at 364.

360. See Hof Amsterdam, July 16, 1992, published in NEDERLANDS INTERNATIONAAL PRIVAATRECHT 711, 716 (1992), stating that the lower court "heeft terecht goordeeld dat het Weens Koopverdrag i.c. toepassing mist daar het geen regels inhoudt m.b.t. een exclusiviteitsovereenkomst als waarop [de principaal geintimeerde] haar vordering baseert."

For another court decision excluding distribution contracts from the sphere of application of the CISG, see OLG Koblenz, September 17, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 934 (1993).

361. See Hof Amsterdam, July 16, 1992, published in NEDERLANDS INTERNATIONAAL PRIVAATRECHT 711, 716 (1992), stating that "[het Weens Koopverdrag] zou wellicht, hetzij ten overloede en met voorbijgaan van eventuele problemen van overgangsrecht overwogen, van toepassing zijn indien het geschil van partijen een (of meer) van de individuele koopovereenkomsten zou betreffen die ter uitvoering van de 'kaderovereenkomst' gesloten werden, maar daarvan is geen sprake nu het geschil de gestelde kaderovereenkomst zelf betreft."

For a similar affirmation in legal writing, see Piltz, supra note 21, at 1102.

362. This solution was prevalent under the 1964 Hague Conventions; see, e.g., BGH, April 4, 1979, published in NEUE JURISTISCHE WOCHENSCHRIFT 1782 ff. (1979).

363. Galgano, supra note 5, at 6.

364. Memmo, supra note 6, at 181.

365. For a similar affirmation, see Ferrari, supra note 159, at 77 ff., with further references.

366. For a similar affirmation, see Honnold, supra note 25, at 105, stating that "a modern sales law must include transactions which call for the manufacture or production of goods... ."

Note that a similar statement can already be found in Kahn, supra note 19, at 693; Rabel, supra note 164, at 54.

367. See Ferrari, supra note 159, at 78.

368. Memmo, supra note 6, at 189.

369. In this respect, it is sufficient to note that already in 1936, Rabel, supra note 164, at 54, stated that "the contract by virtue of which the entrepreneur binds himself to produce goods by using a material he has to provide is considered a sales contract in England, Scandinavia and in the United States."

370. See, e.g., Ferrari, supra note 159, at 78.

371. See Article 2 of the 1935 Draft Convention.

372. See Article 2 of the 1939 Draft Convention.

373. See Article 10 of the 1956 Draft Convention.

374. See Article 6 ULIS: "Contracts for the supply of goods to be manufactured or produced shall be considered to be sales within the meaning of the present Law, unless the party who orders the goods undertakes to supply an essential or substantial part of the materials necessary for such manufacture or production."

375. Several authors have pointed out that comparing sales contracts for the supply of goods to be manufactured or produced as well as contracts for the supply of both goods and labor or services to "traditional" sales contracts results in the extension of the CISG's sphere of application; see, e.g., De Nova, supra note 343, at 751; Magnus, supra note 156, at 67.

376. For a similar statement, see Enderlein & Maskow, supra note 58, at 36, stating that "[the] inclusion of contracts for the delivery of goods to be manufactured (machines, manufactured goods) or produced (agricultural produce, raw materials) at the time of the conclusion of the contract in sales contracts means that the CISG can be applied also to certain contracts which are considered to be work contracts."

For a detailed discussion on the relationship between work contracts and the CISG, see Peter Gauch, Werkvertrag und "WienerKaufrecht," BAURECHT 23 ff. (1993).

377. Bernardini, supra note 21, at 85.

378. Id.

379. See also Memmo, supra note 6, at 189, stating that the CISG governs even those contracts "where the seller is bound not only to the delivery, but where he is also liable for the preliminary [phase of preparing the goods to be sold]."

380. See Ferrari, supra note 159, at 79.

381. See also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 17, stating that Article 3(1) of the Uniform Sales Law "provides that the sale of goods to be manufactured or produced by the seller to the buyer's order is as much subject to the provisions of this Convention as the sale of ready-made-goods." See also Piltz, supra note 21, at 26 (stating the same).

382. See Article 3(1) CISG: "Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production."

Note, that even though the aforementioned Article was derived from a provision of the 1964 Hague Conventions, these Articles differ, at least at first sight, very much from each other, since the 1964 provision only excluded the extension of the convention's sphere of application in respect of such contracts in which the buyer did not only supply the "substantial" part, but also the "essential" part of the materials necessary for the manufacture or the production of the goods (for the text of the relevant provision, see supra in note 374). The difference is, however, only a terminological one, as will be pointed out infra in note 388.

383. For this affirmation, see already Ferrari, supra note 159, at 77-78.

384. See Magnus, supra note 156, at 69.

385. For this criticism, see also Rosett, supra note 99, at 280, stating that Article 3 explicitly includes contracts for goods to be manufactured unless the goods are incidental to supplying labor and services without providing guidance concerning the determination of the meaning of the "incidental" criterion.

For similar affirmations, see also Sergio M. Carbone & Marco Lopez de Gonzalo, Art. 3, NUOVE LEGGI CIVILI COMMENTATE 8, 8 (1989); Memmo, supra note 6, at 189.

386. For this conclusion, see also Ferrari, supra note 159, at 81; Magnus, supra note 156, at 70; Memmo, supra note 6, at 189.

387. For this solution, see Ferrari, supra note 159, at 81.

388. Note, that problems in respect of Article 3(1) can also arise for reasons different from the indefiniteness of the concept de quo. In this respect it is sufficient to recall that while the English text uses the expression "substantial part," the official French version uses the expression "partie essentielle." In this regard, see also Kritzer, supra note 56, at 73, where the author states that "[t]he problem here may be caused as much by a translation variance as by the absence of a precise definition of the term 'substantial' in the Convention."

It is doubtful, whether the French expression "partie essentielle" is intended to have a different meaning than the English expression "substantial part." For a reference to this problem, see also Honnold, supra note 25, at 106 (stating that the French expression is due to the fact that "[t]he drafters of the French version had difficulty with the concept of 'substantial' and used the phrase 'une partie essentielle'); Richards, Note, supra note 147, at 231 n.152.

389. This view is held, for instance, by Thomas Carsten Ebenroth, Internationale Vertragsgestaltung im Spannungsverhältnis zwischen ABGB, IPR-Gesetz und UN-Kaufrecht, JURISTISCHE BLÄTTER 682, 684 (1986); Alejandro Garro & Alberto Zuppi, COMPRAVENTA INTERNACIONAL DE MERCADERIAS 74 (Buenos Aires 1989); Herber & Czerwenka, supra note 43, at 28; Nicole Lacasse, Le champ d'application de la Convention des Nations Unies sur les contrats de vente internationale de marchandises, in ACTES DU COLLOQUE SUR LA VENTE INTERNATIONALE 23, 29 f. (Nicole Lacasse & Louis Perret eds., Montreal 1989); Magnus, supra note 156, at 69; Piltz, supra note 21, at 26; Reinhart, supra note 139, at 20.

Some authors prefer to use a "criterion of value"; see, e.g., Honnold, supra note 25, at 106 (stating that the only commensurable relationship between the materials provided by the buyer and those necessary for the production or manufacture of the goods to be sold is one based on value); Winship, supra note 122, at 1.24 (stating that it is difficult to determine whether the materials provided by the buyer are a "substantial part" of the materials necessary for the production unless one uses a measure which looks to value). However, this criterion does not differ from the one mentioned in the text, since the latter refers to an economic evaluation of the relationship between materials provided by the buyer and those provided by the seller.

390. For this conclusion, see also Audit, supra note 38, at 26.

391. Despite the different wording of the relevant articles provided for by the CISG and the 1964 Hague Conventions respectively (for a reference to the different texts, see supra note 388), several authors hold the view that there is no difference between the decisive criteria for the applicability of the Conventions to the kinds of contracts at hand; see, e.g., Richards, Note, supra note 147, at 231 (stating that "[d]espite the deletion of 'essential' from the CISG, the nature of the materials supplied will be a factor in deciding whether a 'substantial' amount of the materials will be supplied"); Rolf Herber, Art. 3, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 68 at 69.

Arguing that there is no space for an approach which takes into account the quality of the goods provided by the buyer, see Warren Khoo, Art. 3, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 41 at 42, stating that "[u]nder paragraph (1), unlike the parallel provision in ULIS, the materials supplied need not be essential for the manufacture or production. Nor is it sufficient to take the transaction out of the Convention that the material supplied is an essential part."

392. Carbone & Lopez de Gonzalo, supra note 385, at 8.

393. See also Magnus, supra note 156, at 70.

394. See Honnold, supra note 25, at 106, stating that "[i]t seems that a tribunal might well conclude that 15% is 'substantial.' "

For a criticism of this view, see also Enderlein & Maskow, supra note 58, at 36, stating that "[s]ubstantial is not preponderant as in Article 2; it may even be less than one half. We doubt, however, that 15 per cent will be sufficient, as believes Honnold." See also Enderlein et al., supra note 48, at 48; Ferrari, supra note 159, at 82.

395. See, e.g., BGH, February 15, 1995, published in WERTPAPIER-MITTEILUNGEN 1103 (1995); Arbitral Tribunal ICC, No. 7660, reported in UNILEX; OLG Frankfurt, September 17, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 950 (1991).

396. See Witz, supra note 68, at 34-35.

397. It has been stated (Magnus, supra note 68, at 70) that the materials provided by the buyer must be necessary for the manufacture or production of the goods, i.e., it is not sufficient that they serve a different purpose, as packaging material does, for instance.

398. For a summary of this case in the light of the issues discussed in the text, i.e., the lacking definition of substantial part, see also Del Duca & Del Duca, supra note 68, at 352 f.

399. See Witz, supra note 68, at 34-35.

400. See Article 3(2) CISG: "(2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnished the goods consists in the supply of labor or services."

401. For a very detailed comparative study of the categories of contracts for the supply of labor and/or services as opposed to contracts for the supply of goods, see Werner Lorenz, Contracts for the Work on Goods and Building Contracts, in 8/8 INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW 1 (1980).

402. For this affirmation, see also Ferrari, supra note 159, at 82; Magnus, supra note 156, at 67; Richards, Note, supra note 147, at 233.

403. For this justification of the introduction of Article 3(2) CISG, see, e.g., Schlechtriem, supra note 92, at 31, stating that Article 3(2) "attempts to regulate a question that proved to be difficult in ULIS, namely whether a contract for both the delivery and the installation of goods is covered by the Uniform Law for International Sales."

404. That Article 3(2) has been introduced in order to solve the problems concerning the extension of the CISG's applicability to turn-key-contracts can be deduced from the statements to be found in 7 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 98 (1976).

For a reference to the CISG's applicability to turn-key-contracts, see also Ferrari, supra note 159, at 83-84 (excluding that turn-key-contracts fall within the scope of the CISG).

405. For a detailed discussion on whether the Lieferverträge mit Montageverpflichtung were governed by the ULIS, see Ulrich Huber, Diskussionsbeitrag, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 107 at 107-108; Memmo, supra note 6, at 191.

406. For a detailed discussion of the Lieferverträge mit Montageverpflichtung in German law, see Maria Droste, DER LIEFERVERTRÄGE MIT MONTAGEVERPFLICHTUNG (Heidelberg, 1991), where the author (at 157 ff.) also discusses the issue of the CISG's applicability to these kinds of contracts.

407. Note, that "[w]hen the terms 'labor' or 'services' are used to characterize non-sales obligations, then this is obviously done to express that human labor which is owed, irrespective of whether it has a form giving effect or not. If it is only the result of labor which is owed, like in many contracts on the preparation of scientific or technological results (project contracts), then there exists a sales contract in the sense of the CISG in any case." Enderlein & Maskow, supra note 58, at 38.

408. However, according to Schlechtriem, supra note 92, at 31, the criterion of "preponderance" as well "is likely to prove difficult to interpret and to apply. Therefore, the parties should attempt to reach clear agreement in their contract."

409. For a similar affirmation, see Ferrari, supra note 159, at 83; Garro & Zuppi, supra note 389, at 74-76; Herber & Czerwenka, supra note 43, at 29; Karollus, supra note 59, at 24; Magnus, supra note 156, at 70-71; Schlechtriem, supra note 187, at 17.

Note, however, that some authors have argued that the "preponderance" must be evaluated having regard to other criteria as well; see, e.g., Richards, Note, supra note 147, at 240, stating that in order to determine the "preponderance" of the obligations consisting in the supply of services and labor or those consisting in the supply of goods "[a] two-part test involving a quantitative judgment of the predominant part of the agreement and a subjective judgment of the intent of the parties and the purpose of the agreement should be used."

Based upon the fact that a United Kingdom's proposal to use a "major in value" criterion in order to distinguish sales contracts from the contracts for the supply of labor and services was rejected (for this proposal, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 84); Reinhart, supra note 139, at 21, states that "a quantitative criterion is not sufficient to determine the preponderance of either the obligations regarding the supply of goods or those consisting in the supply of labor or services."

410. Schlechtriem, supra note 92, at 31.

411. See, e.g., Arbitral Tribunal ICC, No. 7153, published in English in 14 J.L. & COM. 217 (1995), which concerned a contract concluded in 1989 by an Austrian Seller and a Yugoslavian Buyer for the furnishing and assembling of materials to be used in the construction of a hotel in Czechoslovakia (for a summary of the facts, see also Callaghan, supra note 3, at 196). However, the arbitral tribunal dealt with the issue of whether the contract was one of sale by merely stating that "given that the text of the contract is unequivocal in this respect, and that no contrary provision emerges from the plaintiff's mail, the court of arbitration assumed that the type of contract in question here was a sales contract, such that the Convention applies." Per se, this statement does not support the rule mentioned in the text. However, it has been stated that the tribunal's aforementioned conclusion "was ... supported by a bill addressed to the defendant which made apparent that the price to be paid for the assembly of the materials was of a completely secondary order of magnitude compared to that of the purchase of the materials. The arbitrator thus correctly examined the economic value of the benefits furnished in order to conclude that the contract at issue came within the purview of the Vienna Convention." Dominique Hascher, Commentary on International Court of Arbitration, Matter No. 7153 IN 1992, 14 J.L. & COM. 220, 222-223 (1995).

412. There is no doubt among legal scholars that a "preponderant" part is more than a "substantial part" and that the former has to mean more than 50%. For similar statements, see, e.g., Enderlein & Maskow, supra note 58, at 37 (stating that "the 'preponderant' part is bigger than a substantial part and has to mean more than half"); Honnold, supra note 25, at 106 (stating that "a 'substantial' part would be less than preponderant"); Schlechtriem, supra note 92, at 32 (stating that "[p]reponderant in this sense should be considerably more than 50% of the price").

413. Several authors have pointed out that the "preponderance" test prevents the United Nations Convention to be applicable to turn-key-contracts; see, e.g., Czerwenka, supra note 194, at 145; Herber, supra note 391, at 70; Richards, Note, supra note 147, at 243.

According to some authors, however, turn-key-contracts are not per se excluded from the sphere of application of the Convention (see, e.g., Magnus, supra note 156, at 72), but only where the "preponderance" test leads, in concreto, to their exclusion; see, for instance, Peter Schlechtriem, Einheitliches UN-Kaufrecht. Das Ubereinkommen der Vereinten Nationen vom 11. April 1980 über Verträge über den internationalen Warenkauf (CISG), JURISTENZEITUNG 1037, 1039.

414. See Herber & Czerwenka, supra note 43, at 28-29.

415. See Richards, Note, supra note 147, at 234.

416. For a discussion of this issue, see, among others, Honnold, supra note 25, at 108; Magnus, supra note 156, at 68-69.

417. See, e.g., Schlechtriem, supra note 92, at 32, stating that in the contracts for the supply of goods and labor or services it is difficult "to decide whether there are, in fact, two separate contracts, and, for example, whether the delivery is subject to the Uniform Law for International Sales while the installation contract is governed by domestic law. Domestic law should decide whether these two contracts can be distinguished." (footnotes omitted, emphasis added)

This solution has also been advanced by Lacasse, supra note 389, at 31; Samson, supra note 323, at 928-929.

418. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16-17, stating that "the question whether the seller's obligations relating to the sale of goods and those relating to the supply of labor or services can be considered as two separate contracts (under what is sometimes called the doctrine of 'severability' of contracts), will be resolved in accordance with the applicable national law."

419. See, for instance, Czerwenka, supra note 194, at 146 note 696; Herber & Czerwenka, supra note 43, at 29.

420. For this view, see also Enderlein & Maskow, supra note 48, at 38.

421. See also Magnus, supra note 156, at 68.

422. For this statement, see also Herber, supra note 391, at 70; Piltz, supra note 21, at 27; Peter Schlechtriem, Anwendungsvoraussetzungen und Anwendungsbereich des UN-Ubereinkommens über den internationalen Warenkauf (CISG), AKTUELLE JURISTISCHE PRAXIS 339, 347.

423. See Ferrari, supra note 159, at 86.

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.

451. For a similar conclusion, see Ferrari, supra note 159, at 56.

452. It is commonly understood that Article 2 of the CISG restricts the sphere of application of the 1980 Uniform Sales Law resulting from Articles 1 and 3. For a similar statement, see, e.g., Boschiero, supra note 117, at 276; Sergio M. Carbone & Marco Lopez de Gonzalo, Art. 2, NUOVE LEGGI CIVILI COMMENTATE 6, 7 (1989); Magnus, supra note 156, at 55; Schlechtriem, supra note 92, at 28.

453. See Article 2 CISG:

"This Convention does not apply to sales:

(a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;

(b) by auction;

(c) on execution or otherwise by authority of law;

(d) of stocks, shares, investment securities, negotiable instruments or money;

(e) of ships, vessels, hovercraft or aircraft;

(f) of electricity."

454. See Article 5 ULIS:

"(1) The present Law shall not apply to sales:

(a) of stocks, shares, investment securities, negotiable instruments or money;

(b) of any ship, vessel or aircraft, which is or will be subject to registration;

(c) of electricity;

(d) by authority of law or on execution or distress."

(2) The present Law shall not affect the application of any mandatory provision of national law for the protection of a party to a contract which contemplates the purchase of goods by that party by payment of the price by instalments.

455. For this tripartite, see Enderlein et al., supra note 48, at 45; Karollus, supra note 226, at 380; Samson, supra note 323, at 928.

456. For the bipartition, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7 (basing the exclusions on the characteristics of the contractual relationship created by the parties and on the nature of the goods sold); Honnold, supra note 25, at 96 (categorizing the exclusions on the basis of the nature of the transactions and of the nature of the goods).

457. For a similar tripartite, see also Enderlein & Maskow, supra note 58, at 32 (stating that "[t]here are three types of restrictions in this article [Article 2]; -- those based on the purpose for which the goods were purchased (subpara. (a)), -- those based on the type of sales contract (subparas. (b) and (c)), -- those based on the kinds of goods sold (subparas. (d), (e) and (f))"); Warren Khoo, Art. 2, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 34 at 37 (stating the same); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating the same); Volken, supra note 90, at 34 (stating the same).

458. Note, however, that Magnus, supra note 156, at 56, points out that the exclusions contained in Article 2 are not based upon a specific concept. The exclusions appear, above all, to be arbitrary.

459. See, for a similar affirmation, Rolf Herber, Art. 2, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 59 at 59.

460. Even though auction sales are not subject to the Vienna Sales Convention, this does not mean that sales at commodity exchanges are excluded from the CISG's sphere of application (for this conclusion, see Heuzé, supra note 177, at 76). Indeed, the sales at commodity exchanges being "rather rapidfire communication of offers and acceptances" (Honnold, supra note 25, at 98 note 3), they cannot be considered auction sales. For a similar argument, see Mark Kantor, The Convention on Contracts for the International Sales of Goods: An International Sales Law, INT'L L. PRACTICUM 10 (N.Y.S. Bar Association, Autumn 1988) (stating that "sale on commodity exchanges are not sales by 'auction' but rather extremely quick communications of offers and acceptance. Therefore, so long as a commodities trading contract is between companies with places of business in different Contracting States and the transaction is not otherwise excluded from coverage under the Convention, the Convention is applicable to international sale of goods consummated on such ... exchanges ...").

For a similar conclusion, see Audit, supra note 38, at 29; Ferrari, supra note 159, at 57 n.7 (stating that the CISG can be applicable to commodity exchange transactions).

461. It has often been stated that the exclusion of auction sales constitutes one of the innovative characteristics of the Vienna Sales Convention; see, e.g., Khoo, supra note 457, at 36 (stating that "[p]aragraph (b) excepting 'auction[s]' has no precedent in ULIS. It was introduced by the Working Group in 1970... . There is a similar provision in the 1974 Limitation Convention"), see also Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating the same); Magnus, supra note 156, at 55.

462. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that "[s]ubparagraph (b) of this article [Article 2] excludes sales by auction from the scope of the Convention. Sales by auction are often subject to special rules under the applicable national law and it was considered desirable that they remain subject to those rules even though the successful bidder was from a different State."

Note, however, that some authors have justified the exclusion de quo differently; see, e.g., Enderlein & Maskow, supra note 58, at 34-35 (stating that the exclusion of sales by auction is due rather to the intent to avoid a conflict between CISG rules and party autonomy: "the rules for auctions are mostly created by the very institutions which had such auctions; and the participants in the auction are obliged to accept those conditions"). For a similar justification of the Article 2(b) exclusion, see Reczei, supra note 353, at 70.

463. See Magnus, supra note 156, at 56-61.

464. For a similar statement, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating that the Article 2(a) exclusion "has no antecedent in the 1964 Hague Conventions"); Boschiero, supra note 117, at 276 (stating the same); Czerwenka, supra note 194, at 148; Reinhart, supra note 139, at 18 (stating the same).

465. For a similar affirmation, see Memmo, supra note 6, at 196, stating that "the consideration of this question has already emerged during the drafting of the uniform laws of the Hague of 1964 and has been incorporated in Article 5(2) of the ULIS."

See also Schlechtriem, supra note 92, at 28, stating that "the exclusion intends to ensure that domestic consumer-protection laws are not affected by the Uniform Law for International Sales; Article 2(a) thereby fulfills the same function as article 5(2) of ULIS."

466. For this conclusion, see Herber & Czerwenka, supra note 43, at 23, stating that the scope of the exclusion of Article 5(2) of the ULIS is more restricted than the one contained in Article 2(a) of the CISG.

467. The importance of this exclusion has already been stressed by the commentators on the 1978 Draft of the CISG; see, e.g., Ibrahim Fadlallah, Le projet de convention sur la vente de marchandises, JOURNAL DU DROIT INTERNATIONAL 755, 764 (1979); John O. Honnold, The Draft Convention on Contracts for the International Sale of Goods: An Overview, 27 AM. J. COMP. L. 223, 227 (1979); Ulrich Magnus, Reform des Haager Einheitskaufrecht, ZEITSCHRIFT FÜR RECHTSPOLITIK, 116, 131 (1978).

468. See Article 1(3) CISG quoted supra in note 328.

469. For this conclusion, see Ferrari, supra note 159, at 59; Garro & Zuppi, supra note 389, at 80; Herber, supra note 459, at 61; Reinhart, supra note 139, at 18; Wang, supra note 131, at 186.

470. For this argument, see Herber, supra note 459, at 60; Magnus, supra note 156, at 56; 2 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 56 (1971).

For a criticism of this justification, see Reczei, supra note 353, at 70.

471. For this argument, see, e.g., OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that "most consumer sales are domestic transactions and it was felt that the Convention should not apply to the relatively few cases where consumer sales were international"); Bernardini, supra note 21, at 87 (stating the same); Michael J. Bonell, La revisione del diritto uniforme della vendita internazionale, GIURISPRUDENZA COMMERCIALE I 116, 123 (1980) (stating the same); Note, United Nations Convention on Contracts for the International Sale of Goods: Creating Uniformity in International Sales Law, 12 FORDHAM INT'L L.J. 727, 746 (1989) (stating the same); Schlechtriem, supra note 187, at 13 (stating the same).

472. It has often been pointed out that the exclusion from the sphere of application of the CISG of the sale of goods bought for the purposes mentioned in Article 2(a) corresponds to the exclusion of consumer sales; for a similar affirmation, see, e.g., Bernardini, supra note 21, at 87; De Nova, supra note 343, at 749; Ferrari, supra note 159, at 60; Garro & Zuppi, supra note 389, at 81-82. This is also evidenced by the fact that the first Draft Conventions (for the history of Article 2(a), see, e.g., Czerwenka, supra note 194, at 148 f.; Khoo, supra note 457, at 34-36) contained a definition of "consumer sale" (for such a definition, see, e.g., 2 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 55 (1971), defining the consumer sale as a sale "of a kind and in quantity ordinarily bought by an individual for personal, family or household use") which in the early 1970's had been abandoned (for this decision, see 6 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 51 (1975)) in favor of the expression "sale of goods bought for personal, family or household use." For a similar affirmation, see also Ferrari, supra note 159, at 60; see also Magnus, supra note 159, at 55.

473. For a similar justification of the Article 2(a) exclusion, see, e.g., Honnold, supra note 25, at 96-97 (stating that "[i]n UNCITRAL attention was drawn to the development of national legislation and case law designed to protect consumers; it was agreed that the Convention should not supersede these rules"); Note, supra note 471, at 746 (stating that "the drafters wanted to ensure that domestic consumer-protection laws were not minimized by the Sale of Goods Convention"); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (arguing that "[a] rationale for excluding consumer sales from the scope of this Convention is that in a number of countries such transactions are subject to various types of national laws that are designed to protect consumers. In order to avoid any risk of impairing the effectiveness of such national laws, it was considered advisable that consumer sales should be excluded"). See also Magnus, supra note 156, at 56.

474. Schlechtriem, supra note 92, at 28, where the author also points out that there are still some overlapping areas in which the rules of the 1980 Uniform Sales Law as well as domestic rules will apply: "The exception to the exclusion of Article 2(a) -- where the seller cannot recognize the character of the purchase -- can lead to overlapping when domestic consumer protection law does not use such a criterion. Above all, domestic consumer protection laws sometimes intervene when the goods purchased are intended for occupational or even commercial use."

475. For this conclusion, see Ferrari, supra note 159, at 61; Magnus, supra note 156, at 56.

476. It is commonly understood that the criterion by which sales contracts are excluded ex Article 2(a) is represented by the non commercial purpose of the sale of goods; for a similar statement, see, e.g., Enderlein & Maskow, supra note 58, at 33 (stating that "[t]hose contracts are mostly excluded from the Convention's scope of application which in many countries are regarded as civil law contracts (in contrast to trade law contracts). That criterion, however, is not applied with regard to the character of the parties to a contract, which would have to be defined, but rather, to the purpose of the goods"); Memmo, supra note 6, at 194 (stating the same).

477. Various legal scholars have stressed the fact that the commercial nature of the goods is irrelevant; what matters is the commercial purpose of the sale contract; for similar affirmations, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating the same); Honnold, supra note 25, at 97 (stating that "[t]he character of the goods is not decisive"); Kritzer, supra note 56, at 71 (stating that the Article 2(a) exclusion "is an exclusion of consumer sales; it is not an exclusion of consumer goods"); Magnus, supra note 156, at 56 (making a similar statement).

478. For a similar conclusion, see Herber & Czerwenka, supra note 43, at 380.

479. For this conclusion, see also Herber, supra note 459, at 61; Karollus, supra note 226, at 380; Magnus, supra note 156, at 57; Piltz, supra note 21, at 34; Schlechtriem, supra note 425, at 278.

480. For this example, see also Garro & Zuppi, supra note 389, at 81; Honnold, supra note 25, at 97; Magnus, supra note 156, at 57.

For this and other examples, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that "the following situations are within the Convention: the purchase of a camera by a professional photographer for use in his business; the purchase of soap or other toiletries by a business for the personal use of the employees; the purchase of a single automobile by a dealer for resale").

481. For this example, see Schlechtriem, supra note 92, at 28.

482. For a similar statement, see, e.g., Honnold, supra note 25, at 97 (stating that "[t]he phrase 'goods bought for personal, family or household use' refers to the purpose of the buyer at the time of the purchase"); Audit, supra note 38, at 28; Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating the same); Herber & Czerwenka, supra note 43, at 24 (stating the same); Karollus, supra note 59, at 25-26.

483. For a similar conclusion, see also Enderlein & Maskow, supra note 58, at 33 (stating that "late changes in purpose are irrelevant"); Ferrari, supra note 159, at 63 (stating the same); Magnus, supra note 156, at 56-57 (stating that it does not impact on the Article 2(a) exclusion, whether the buyer de facto uses the goods for a purpose different than the one he intended to).

484. For this statement, see also Magnus, supra note 156, at 56-57.

485. Conversely, the CISG will apply, even where the buyer uses the goods for non commercial purposes, if, at the time of the conclusion of the contract, he intended to make a commercial use of them.

486. For a short discussion of this question, see Ferrari, supra note 159, at 63-64.

487. For this solution, see also Czerwenka, supra note 194, at 151-152; Herber & Czerwenka, supra note 43, at 24; Karollus, supra note 59, at 26.

488. For this solution, see also Magnus, supra note 156, at 58.

489. For this solution, see, e.g., Ferrari, supra note 159, at 64; Herber, supra note 459, at 61.

490. This might be the case where the seller expressly states that the intended use is a personal one. Consequently, the seller can, by simply stating so, unilaterally exclude the CISG; for this conclusion, see also Loewe, supra note 346, at 27; Magnus, supra note 156, at 58.

491. As far as this criterion is concerned, it has been said that the CISG is excluded solely where the personal use to be made of the goods was unknown to the seller because of his gross negligence (for this view, see, e.g., Herber & Czerwenka, supra note 43, at 24-25). The preferable view is, however, that any kind of negligence is relevant in order to make the Article 2(a) applicable. See, for this view, Schlechtriem, supra note 187, at 13.

492. For this conclusion, see also Enderlein et al., supra note 48, at 34; Khoo, supra note 457, at 37; Magnus, supra note 156, at 58; Memmo, supra note 6, at 197.

493. For a similar statement, see, e.g., Enderlein & Maskow, supra note 48, at 34 (stating that "[i]n regard to whether the seller 'knew' or 'ought to have known', what matters again is the time of the conclusion of the contract... . It is not sufficient to gain this knowledge only when, for instance, the machine is being installed"); Herber & Czerwenka, supra note 43, at 25 (stating that the seller has to have knowledge (or the possibility of knowing) of the personal use the buyer wants to make of the goods sold at the moment the contract is concluded). See also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16.

494. For this rationale, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16, stating that "[t]he seller might have no reason to know that the goods were purchased for [personal] use... . This information must be available to the seller at least by the time of the conclusion of the contract so that he can know whether his rights and obligations in respect to the sale are those under this Convention or those under the applicable national law." For a similar statement, see Khoo, supra note 457, at 36.

495. For a more detailed discussion of this problem, see Ferrari, supra note 159, at 64-65.

496. For a discussion of the issue of the burden of proof under the CISG, see, most recently, Clemens Antweiler, BEWEISLASTVERTEILUNG IM UN-KAUFRECHT (Frankfurt/Berlin/Bern/New York/Paris/Vienna 1995).

497. This view is taken, for instance, by Khoo, supra note 457, at 39, according to whom the same view was favored by the delegates during the Vienna Conference: "[d]elegations speaking on the burden of proof were all quite definite that it was not the intention to deal in the Convention with any questions concerning the burden of proof. The consensus was that such questions must be left to the court as matters of procedural law."

For the statements of several delegates at the Vienna Conference, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 238-239 & 295-298.

498. See, e.g., Czerwenka, supra note 194, at 150; Karollus, supra note 59, at 26.

499. This view is generally based upon the "unless" clause provided for in Article 2(a). For a similar statement, see, e.g., 6 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 51 (1975); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 238-239.

For a criticism to this view, see Khoo, supra note 457, at 39, stating "this supposed effect of the word 'unless' is not universally accepted, as demonstrated by the discussion on the article defining 'fundamental breach' at the Vienna Conference (now Article 25), an article also containing an 'unless' clause."

500. See, for this suggestion, Honnold, supra note 25, at 97-98, stating that "[t]he structure of Article 2(a) and practical considerations applicable to the allocation of the burden of proof suggest that the buyer has the burden of proving it bought the goods for personal, family or household use; the seller would have the burden of proving that it did not know (and had no means to know) the buyer's purpose." For the same view, see Audit, supra note 38, at 28-29; Carbone & Lopez de Gonzalo, supra note 452, at 7; Karollus, supra note 226, at 380.

501. For this statement, see also Herber, supra note 459, at 62.

502. For this solution, see Schlechtriem, supra note 92, at 28, stating that "[t]he exception for sellers who 'neither know nor ought to have known' that the goods were for private use is deliberately formulated in the negative in order to place the burden of proof firmly on those who claim the exception to the consumer-contracts exclusion and assert that the Convention should apply." (footnote omitted). See also Ferrari, supra note 159, at 65.

503. For this issue, see Herber, supra note 459, at 61-62; Memmo, supra note 6, at 198.

504. Note, that where the contract is concluded by an agent, the non commercial purpose of the purchase must be recognizable to the agent in order to lead to the inapplicability of the Convention.

505. For a discussion of this problem, see Ferrari, supra note 159, at 66.

506. See, for instance, Magnus, supra note 156, at 59.

507. See, e.g., Huber, supra note 270, at 421, stating that the non commercial purpose of the purchase can be deduced from the goods being typically destined to personal use.

508. For this example, see Herber, supra note 459, at 61-62.

509. See Magnus, supra note 156, at 59.

510. Id.

511. For this conclusion, see Ferrari, supra note 159, at 66.

512. See also Herber, supra note 459, at 62.

513. For this solution, see Memmo, supra note 6, at 198.

514. This has already been pointed out by Herber, supra note 459, at 62.

515. The exclusion of "sales of goods bought for personal use" seems to require that the buyer be a person, as opposed to a corporation or enterprise; for a similar conclusion, see Huber, supra note 270, at 422 (stating that "[t]he buyer has to be natural person"); Magnus, supra note 156, at 57; Memmo, supra note 6, at 198 (stating the same).

516. Note that the expression "personal use" does not necessarily signify that the goods must be bought for a use strictly related to the person of the buyer. Consequently, the Article 2(a) exclusion applies, for instance, where the sale is made in order to complete a private collection (for this example, see Herber & Czerwenka, supra note 43, at 24); the same appears to be true as far as concerns the sale of goods which the buyer wants privately to donate to another person (for this example, see Magnus, supra note 156, at 57).

517. See also Magnus, supra note 156, at 57.

518. For this conclusion, see Czerwenka, supra note 194, at 152 (stating that "family and household use" are just examples of "personal use"); Huber, supra note 270, at 422 (stating the same); Memmo, supra note 6, at 196 (stating the same).

519. For this affirmation, see also Ferrari, supra note 159, at 63; Schlechtriem, supra note 187, at 14-15.

520. See Article 7(1) CISG: "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

521. For this suggestion, see Schlechtriem, supra note 92, at 29, stating that "the purpose of Article 2(a) is to allow a broad description, based on sociological evidence, of those persons who are regarded as included in the family or household." See also Herber, supra note 459, at 61.

522. See Magnus, supra note 156, at 58, stating that the concept of "family" in the sense of Article 2(a) CISG is to be interpreted not in the light of family law, but rather on a sociological basis.

523. Several authors have argued in favor of the inclusion of the god-child within the concept of "family"; see, e.g., Herber, supra note 459, at 61; Schlechtriem, supra note 187, at 15.

524. For this suggestion, see Ferrari, supra note 159, at 63; Herber, supra note 459, at 61.

525. See supra text accompanying note 457.

526. See supra text accompanying notes 463-89.

527. See supra text accompanying notes 460-62.

528. As far as the exclusion of sales on execution or otherwise by authority of law is concerned, it might suffice to point out that this exclusion has its antecedent in the ULIS; for a similar statement, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7; Herber & Czerwenka, supra note 43, at 25.

The justification of the exclusion de quo is represented by the sales on execution and other forced sales being "fundamentally different from other transactions because of the inability of the parties to negotiate the terms of the contract." Honnold, supra note 25, at 98. For this justification of the Article 2(c) exclusion, see also Audit, supra note 38, at 29; Enderlein et al., supra note 48, at 47; Heuzé, supra note 177, at 76.

In addition, the sales on execution's exclusion has been justified on the ground that "such sales are normally governed by special rules in the State under whose authority the execution sale is made. Furthermore, such sales do not constitute a significant part of international trade and may, therefore, safely be regarded as purely domestic transactions." OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16.

529. See Garro & Zuppi, supra note 389, at 79, expressly stating that the exclusion of some sales is based upon the goods sold.

530. For the text of Article 5(1)(a) of the ULIS, see supra note 454.

531. Since the early 1930's, the goods listed in Article 2(d) have been excluded from the sphere of application of the various Draft Conventions; for an early statement concerning the necessity of such exclusion, see, e.g., Rabel, supra note 164, at 55.

532. See Piltz, supra note 21, at 31.

533. For this rationale of the Article 2(d) exclusion, see also Schlechtriem, supra note 92, at 30, stating that the exclusion de quo "takes into consideration that international securities and currency transactions are governed by their own rules and laws which are often compulsory."

See also Enderlein et al., supra note 48, at 47, stating that the Article 2(d) exclusion "can be explained by the existence of mandatory domestic rules."

534. For this view, see, e.g., OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (affirming that "in some legal systems such commercial paper is not considered to be 'goods.' Without the exclusion of the sales of such paper, there might have been significant differences in the application of this Convention"); Khoo, supra note 457, at 38 (stating that the Article 2(d) exclusion "serves the purpose of accommodating the thinking of legal systems which do not regard commercial paper and money as 'goods' and which therefore would find it unacceptable that their sale be brought within the scope of the Convention").

535. For this conclusion, see Ferrari, supra note 159, at 70.

536. For a similar statement, see, e.g., Audit, supra note 38, at 29, stating that "the expression 'marchandises' which has been used ... in the Vienna Convention would suffice to justify the exclusion of stocks, negotiable instruments and money from the Convention's sphere of application."

Honnold, supra note 25, at 99, goes even further and states that "[t]he exclusion of the intangible rights listed in Article 2(d) illustrates ... that the sale of 'goods' refers to moveable, corporeal things."

537. For a reference to bills of exchange and cheques as papers excluded from the Convention's sphere of application, see Enderlein & Maskow, supra note 58, at 35; Ferrari, supra note 159, at 71; Magnus, supra note 156, at 63; Reinhart, supra note 139, at 19.

538. Honnold, supra note 25, at 99.

539. For a more detailed list of documents controlling the delivery of goods the sale of which are subject to the CISG, see Herber, supra note 459, at 65.

540. For this conclusion, see also Heuzé, supra note 177, at 37 (stating that documentary sales are not excluded from the CISG's scope of application); Kantor, supra note 460, at 11 (stating that "[t]he reference to 'negotiable instruments' is intended to refer to instruments calling for the payment of money. Instruments such as bills of lading and other documents controlling the delivery of goods, even though characterized as 'negotiable instruments' under Article 3 of the UCC, should be subject to the Convention when employed to effect the delivery of goods"); Karollus, supra note 59, at 21-22 (stating that the sale of documents controlling the delivery of goods is governed by the CISG); Magnus, supra note 156, at 63; OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that Article 2(d) "does not exclude documentary sales of goods from the scope of [the] Convention, even though, in some legal systems, such sales may be characterized as sales of commercial paper"); Schlechtriem, supra note 92, at 30 (arguing that the "[s]ales contracts which name a document as the subject of the sales, because the document controls the delivery of goods, are considered to be within the sphere of application of the Uniform Law for International Sales").

Under the different Draft Conventions, as well, the sale of documents controlling the delivery of goods was not excluded; see, for a similar statement made with reference to various Draft Conventions, Riese, supra note 19, at 35 note 43.

541. For a similar affirmation, see Enderlein & Maskow, supra note 58, at 35 (stating that "the buyers of such papers are basically the buyers of the goods to which they refer"); Czerwenka, supra note 194, at 152 (stating the same); Ferrari, supra note 159, at 71 (stating the same); Grigera Naon, supra note 147, at 96 (stating the same); Magnus, supra note 156, at 63; Reinhart, supra note 139, at 19 (stating the same).

542. See Piltz, supra note 21, at 31.

543. For this suggestion, see, e.g., Herber, supra note 459, at 65.

544. Ferrari, supra note 159, at 72.

545. This has already been suggested by Ferrari, supra note 159, at 20; Magnus, supra note 156, at 63.

546. See also Heuzé, supra note 177, at 76-77.

547. For a similar affirmation, see Kritzer, supra note 56, at 72.

548. Note that the exclusions de quo were retained although arguments for their elimination came up during the Vienna Conference. For a reference to these arguments, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 240-241 (reporting the delegates' view on the Article 2(e) exclusion); Schlechtriem, supra note 92, at 30.

549. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16: "This subparagraph excludes from the scope of the Convention all sales of ships, vessels and aircraft. In some legal systems ... some sales of ships, vessels and aircraft are assimilated to sales of immovables." For similar affirmations, see also Garro & Zuppi, supra note 389, at 79; Magnus, supra note 156, at 63; Samson, supra note 323, at 928.

550. Under the ULIS, as well, the argument on the ground of which the sales of ships, vessels and aircraft were excluded from the ULIS' sphere of application was connected with them being similar to the sales of immovables; see, e.g., Kahn, supra note 19, at 694.

551. For the text of Article 5(1)(b), see supra note 454.

552. See, for a comment on Article 5 ULIS, Rolf Herber, Art. 5, in KOMMENTAR ZUM EINHEITLICHEN KAUFRECHT, supra note 166, 25 ff.

553. See Herber, supra note 459, at 67.

554. For this piece of information, see Schlechtriem, supra note 187, at 16. For the discussion which followed the Indian proposal, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 241.

555. For this statement, see also Herber, supra note 459, at 67.

556. According to Khoo, supra note 457, at 38, this is the rationale behind the inclusion of the sales of hovercraft in the list of excluded sales. Indeed, the express exclusion of sales of hovercraft "makes it unnecessary to decide whether hovercraft are ships, vessels or aircraft." For a similar justification of the exclusion de quo, see also Carbone & Lopez de Gonzalo, supra note 452, at 8.

557. See also Magnus, supra note 156, at 63, stating that the Article 2(e) exclusion is broader than that of Article 5(b) ULIS.

558. See Reinhart, supra note 139, at 19.

559. For this conclusion, see also Ferrari, supra note 159, at 73.

560. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16, stating that "in most legal systems at least some ships, vessels and aircraft are subject to special registration requirements. The rules specifying which ones must be registered differ [widely]. In order not to raise questions of interpretation as to which ships, vessels or aircraft were subject to this Convention, especially in view of the fact that the relevant place of registration, and therefore the law which would govern the registration, might not be known at the time of the sale, the sales of all ships, vessels and aircraft was excluded from the application of this Convention."

See also Khoo, supra note 457, at 38, according to which the cancellation of the registration requirement as the criterion for exclusion has the effect that "all vessels, ships, hovercraft and aircraft are excluded, whether or not they are subject to the registration requirement of any national law."

561. For a similar statement, see Schlechtriem, supra note 92, at 30, stating that "[w]ith the elimination of the registration criterion, it has, however, become uncertain whether and to what extent smaller boats -- row boats, canoes, dinghies and yachts -- belong to the subject matter excluded from the application of the Convention."

See also Honnold, supra note 25, at 99, wondering whether "the exclusion of the sales of 'ships, vessels' (Fr.: navires, bateaux; Sp.: buques, embarcaciones) [does] extend to small pleasure craft such as sailboats and row boats."

562. See, e.g., Schlechtriem, supra note 92, at 20, stating that "[t]he function and reason for the exception ... suggest that the exception should not be extended to boats."

563. For this conclusion, see also Herber, supra note 459, at 66. See, however, Reczei, supra note 353, at 71, who does not exclude that, on the basis of the text of the CISG, the exclusions of the sales of ships and vessels could be restricted to larger ships and vessels only, since "[i]n the English language ... the terms 'ship' and 'vessel' are used to denote watercraft of larger dimensions. The question is how other languages are capable of expressing the shades and hues distinguishing the one term from the other."

564. For this view, see, e.g., Honnold, supra note 25, at 99 (stating that "UNCITRAL's inability to find a workable basis for the distinguishing between large and small craft and the difficulty that courts would encounter in developing such a distinction suggests that Article 2(e) must be read without qualification: Sales of small pleasure craft do not fall within the Convention").

565. See Magnus, supra note 156, at 64.

566. For this solution, see already Ferrari, supra note 159, at 74.

567. For a similar conclusion, see also Herber, supra note 459, at 66.

568. See Piltz, supra note 21, at 32.

569. See Magnus, supra note 156, at 64.

570. For this conclusion, see also Czerwenka, supra note 194, at 154.

571. For this conclusion, see also Herber, supra note 459, at 66.

572. Note, however, that where the row boat is bought for personal use, it is irrelevant whether it is considered a sporting good or a "ship" or "vessel," being consumer sales excluded from the Sales Convention's sphere of application (Article 2(a)), not unlike sales of ships or vessels (Article 2(e)). Where, however, the row boat is bought by an owner of a shop with the intent to resell it, the Sales Convention should apply.

573. For this view, see, e.g., Herber, supra note 459, at 66, stating that the sale of non-essential parts of a "good" excluded under Article 2(e) should not fall within the exclusion; conversely, the sale of essential parts of those "goods" should not be governed by the Vienna Sales Convention.

574. See the preceding note.

575. In legal writing this view has been expressed, for instance, by Karollus, supra note 59, at 22; Loewe, supra note 346, at 28; Reinhart, supra note 139, at 19.

576. See the decision rendered by the Supreme Court of Hungary, September 25, 1992, published in English in 13 J.L. & COM. 31 (1993). For a comment on this decision, see Paul Amato, U.N. Convention on Contracts for the International Sale of Goods -- The Open Price Term and Uniform Application. An Early Interpretation by the Hungarian Courts, 13 J.L. & COM. 1 (1993); Magnus, supra note 68, at 84-85; Witz, supra note 68, at 36.

577. See also Magnus, supra note 156, at 64.

578. This exclusion has already been contained in Article 5 of the ULIS. See supra note 454.

579. For a similar justification of the exclusion of sales of electricity from the Convention's sphere of application, see, e.g., Heuzé, supra note 177, at 77 (stating that the exclusion of sales of electricity can be explained on the ground of its nature); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that the exclusion of electricity is justified because its sale presents unique problems that are different from those presented by the usual international sale of goods).

580. OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16. For a similar justification of the Article 2(f) exclusion, see Samson, supra note 323, at 928.

581. For this argument, see also Winship, supra note 122, at 1.25, stating that "any suggestion that the problems raised by the excluded items are 'unique' overlooks other items, such as oil and gas supply contracts or livestock transactions, which also raise unique problems."

582. For this conclusion, see also Honnold, supra note 25, at 101 (arguing that the sale of gas is within the Convention); Huber, supra note 270, at 419 (stating the same and criticizing the exclusion of the sale of electricity).

583. See also Herber, supra note 459, at 67 (stating the same).

For a detailed discussion of the problems of oil trade and the Vienna Sales Convention, see James W. Skelton, CISG and Crude Oil Traders, 9 HOUS. J. INT'L L. 95 (1986).

584. See also Czerwenka, supra note 194, at 155 (stating that sales of gas and petrol are governed by the Vienna Sales Convention); Ferrari, supra note 159, at 76; Herber & Czerwenka, supra note 43, at 27 (stating the same); Magnus, supra note 156, at 65.

585. Enderlein & Maskow, supra note 58, at 35.

586. See Ferrari, supra note 159, at 76.

587. For a detailed overview of the history of Article 6 of CISG, see Note, supra note 471, at 727-729.

588. See Article 6 CISG: "The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions."

589. See Eduard Wahl, Art. 17, in KOMMENTAR ZUM EINHEITLICHEN KAUFRECHT, supra note 166, 121 at 133-135, listing "party autonomy" among the general principles of the ULIS.

590. Despite some textual differences, Article 6 of CISG is based upon Article 3 of ULIS, as has often been pointed out; see, e.g., Michael J. Bonell, Art. 6, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 51 at 51 (stating that Article 6 of CISG is based upon Article 3 of ULIS). Also see Rolf Herber, Art. 6, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 83 at 83 (stating the same).

Article 3 of ULIS reads as follows: "The parties to a contract of sale shall be free to exclude the application thereto of the present Law either entirely or partially. Such exclusion may be express or implied."

591. For a similar statement, see Audit, supra note 38, at 37 (stating that "the Convention makes the parties' will the primary source of the sales contract.) See also Hoyer, supra note 199, at 41 (stating the same); Magnus, supra note 156, at 101 (making a similar statement). According to Fritz Enderlein, Die Verpflichtung des Verkäufers zur Einhaltung des Lieferzeitraums und die Rechte des Käufers bei dessen Nichteinhaltung nach dem UN-Übereinkommen über Verträge über den internationalen Warenkauf, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 313, 314 (1991), party autonomy constitutes the "main principle" of the CISG.

592. For this statement, see Carbone, supra note 32, at 78; Carbone & Luzzatto, supra note 123, at 131; Ferrari, supra note 159, at 110; Herber, supra note 590, at 84; Piltz, supra note 21, at 64; Reinhart, supra note 139, at 26; Sacerdoti, supra note 107, at 744; Volken, supra note 88, at 92; Wang, supra note 131, at 188; Claude Witz, L'exclusion de la Convention des Nations Unies sur les contrats de vente internationale de marchandises par la volonté des parties (Convention de Vienne du 11 avril 1980). RECEUIL DALLOZ-SIREY 107, 107 (1990).

Note, however, that even though the principle of party autonomy is widely accepted, there were some States which expressed reservations about it; "[t]heir concern was that, in practice, the principle could be abused by the economically stronger party imposing his own national law or contractual terms far less balanced than those contained in the Convention." Bonell, supra note 590, at 51. See also 1 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 168 (1968-1970); 2 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 43-44 (1971); 3 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 73 (1973).

593. Michael J. Bonell, Art. 6, NUOVE LEGGI CIVILI COMMENTATE 16, 16 (1989).

For similar affirmations, see, e.g., Enderlein, supra note 591, at 316; Hoyer, supra note 199, at 41; Schlechtriem, supra note 187, at 21.

Note, however, that according to Enderlein & Maskow, supra note 58, at 48, the possibility, laid down in Article 6 of CISG, of excluding the Convention's application has not only been introduced in order to pay tribute to the "myth" of party autonomy as such, but also because this possibility "may facilitate the adoption of the Convention by certain States because it allows those business circles which cannot get to like it or, at least, not at once, to evade and/or grants them a longer period of adoption, thus lessening possible resistance."

594. Note, that Carbone, supra note 32, at 78, has compared the reaffirmation of party autonomy as a basic principle of the CISG to the "recognition of an exigency the satisfaction of which is necessary for the development of international commerce." See also Rovelli, supra note 146, at 102, stating that the introduction of Article 6 of CISG and, therefore, the recognition of party autonomy was a "political need."

595. For this statement, see also Bonell, supra note 590, at 53.

596. In private international law scholarship, this kind of party autonomy is generally called internationalprivatrechtliche Parteiautonomie; for the use of this expression, see, e.g., Schlechtriem, supra note 187, at 21.

597. This kind of party autonomy is called materiellrechtliche Parteiautonomie; for this expression, see, e.g., Sacerdoti, supra note 107, at 745-746, where the author criticizes, however, the distinction between materiellrechtliche and internationalprivatrechtliche Parteiautonomie.

For a reference to this case, see also Schlechtriem, supra note 92, at 35, stating that "[s]ubstantively, any rule of the Convention can be altered or rejected by the parties."

598. For the distinction of the two cases mentioned in the text, see also Bonell, supra note 593, at 17; Ferrari, supra note 159, at 111.

599. For this statement, see Hoyer, supra note 199, at 41.

600. See Article 96 CISG:

"A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in the State."

601. For this conclusion, see also Carbone, supra note 32, at 78; Sacerdoti, supra note 107, at 743-744.

602. For a similar statement, see Rolf Herber, Art. 3, in KOMMENTAR ZUM EINHEITLICHEN KAUFRECHT, supra note 166, 19 at 19; Hoyer, supra note 199, at 41.

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:

(a) the validity of the contract or of any of its provisions or of any usage;

(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.

633. See also Magnus, supra note 156, at 105 ff.

634. For a very detailed discussion of the possibility of implicitly excluding the application of both the ULIS and ULF by, among other means, adopting standard contract forms, see, e.g., Friedrich Graf van Westphalen, Allgemeine Geschäftsbedingungen und Einheitliches Kaufgesetz (EKG), in EINHEITLICHES KAUFRECHTS UND NATIONALES OBLIGATIONENRECHT, supra note 16, 49; Rainer Hausmann, Stillschweigender Ausschluß der Einheitlichen Kaufgesetze durch allgemeine Geschäftsbedingungen, RECHT DER INTERNATIONALEN WIRTSCHAFT 186 (1977); Gert Reinhart, Erschwerter Ausschluß der Anwendung des Einheitlichen Kaufgesetzes, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 288 (1986).

635. For a similar statement, see also Herrmann, supra note 290, at 95-96.

636. The possibility of an implicit exclusion of the Convention's application by the use of standard contract forms has also been favored by Bonell, supra note 590, at 56-57, stating that:

"the use of general conditions or of standard form contracts whose content is influenced by principles and rules typical of the domestic law of a particular State, is certainly an element from which one could infer the intention of the parties to have that domestic law rather than the Convention govern their contract. Before reaching such a conclusion, however, due consideration should be given to other circumstances of the case."

This view is shared by other authors as well; see, e.g., Audit, supra note 38, at 39; Herber, supra note 270, at 426; Schlechtriem, supra note 187, at 21.

637. See also Magnus, supra note 156, at 108, stating that standard contract forms which contrast with specific provisions of the CISG should not per se be looked upon as excluding the CISG as a whole. This was true under the Hague Conventions as well; see, for instance, OLG Hamm, May 7, 1979, reported in Schlechtriem & Magnus, supra note 168, at 141.

638. For a similar solution, see Enderlein & Maskow, supra note 58, at 49 (stating that "[o]n no account can the exclusion of the Convention be deduced merely from agreement on such terms of contract which contradict specific provisions, because deviating individual exclusions are indeed compatible with the CISG"). The view is also held by Ferrari, supra note 159, at 119; Witz, supra note 592, at 111.

639. Note to this regard that it has been asserted that "[i]f the parties have not provided otherwise, but have included a choice of forum clause, courts are inclined to rule that the choice of forum indicates a choice of that jurisdiction's substantive law." Ronald A. Brand, Nonconvention Issues in the Preparation of Transnational Sales Contracts, 8 J.L. & COM. 145, 167 (1988).

For practical applications of the aforementioned tendency, see Tzotrzis v. Monard Line A/B, [1968] W.L.R. 406, 411-412 (C.A.); Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 14 n.15 (1972).

640. For this conclusion, see Holthausen, supra note 619, at 517-518; Magnus, supra note 156, at 107.

641. Several authors have pointed out that, even though the choice of a forum or of an arbitral tribunal may indicate the parties' intention to exclude the Vienna Sales Law, that choice by itself is not sufficient to bar the Convention's application; for similar affirmations, see Herber & Czerwenka, supra note 43, at 43 (stating that an arbitration clause or the choice of a forum might indicate the parties' intention to exclude the Convention); Huber, supra note 270, at 426 (stating that the choice of an arbitral tribunal by itself does not lead to the exclusion of the Convention); Schlechtriem, supra note 92, at 35 (stating that the choice of an arbitral tribunal does not by itself imply that the parties wish to exclude the Convention's application).

642. For this conclusion, see Ferrari, supra note 159, at 120; Herber, supra note 590, at 87; Magnus, supra note 156, at 107.

643. For this solution see Gerhard Walter, KAUFRECHT, HANDBUCH DES SCHULDRECHTS 632 (Tübingen 1987) (stating that whenever the arbitral tribunal chosen by the parties is located in a Contracting State, the Vienna Sales Convention applies).

644. For this prerequisite, see Herber, supra note 590, at 87.

645. See, e.g., BGH, November 26, 1980, published in NEUE JURISTISCHE WOCHENSCHRIFT 1156 (1981); LG Bamberg, October 12, 1983, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 266 (1984).

646. See, however, Herber, supra note 590, at 84, stating that the exclusion has to result from two manifestations of will.

647. For this distinction, see Ferrari, supra note 159, at 121.

648. Under the 1964 Hague Conventions, the indication of the applicable law could be made during the legal proceedings; for a reference to this rule in respect of ULIS and ULF, see Volker Stötter, Stillschweigender Ausschluß der Anwendbarkeit des internationalen Kaufabschlußübereinkommens und des Einheitlichten kaufgesetzes, RECHT DER INTERNATIONALEN WIRTSCHAFT 37, 38 (1980); Christoph von der Seipen, Zum Ausschluß des Einheitlichten Kaufrechts im deutschenglischen Rechtsverkehr, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 244, 246 (1984).

For judicial applications of this principle, see, e.g., BGH, November 26, 1980, published in NEUE JURISTISCHE WOCHENSCHRIFT 1156, 1156 (1981); BGH, October 26, 1983, reproduced in RECHT DER INTERNATIONALEN WIRTSCHAFT 151 (1984).

649. In Germany, for instance, it is commonly understood that the indication of the applicable law can also be made after the legal proceeding has started; for this affirmation, see, in legal writing, Czerwenka, supra note 194, at 169-170; Holthausen, supra note 619, at 515; Ulrich Magnus, Zum räumlich-internationalen Anwendungsbereich des UN-Kaufrechts und zur Mängelruge, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 390, 391 (1993).

Most recently, the foregoing principle was applied in OLG Düsseldorf, January 8, 1993, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 412 (1993).

650. In this respect, it has been stated that

"[o]ne might expect that, in practice, the parties would normally indicate their intention at the beginning of their negotiations, or at least before the contract is concluded. Nonetheless, there is nothing to prevent them from deciding at a later stage, even after the initiation of a legal proceeding relating to their contract... . It should, however, be borne in mind that any exclusion of or derogation from the Convention agreed upon after the conclusion of the contract amounts to a modification of the contract, which in some cases may require a particular form." Bonell, supra note 590, at 58.

651. For this solution see also Sacerdoti, supra note 107, at 746.

652. Although it is common knowledge that the question of whether the parties' choice of law is valid falls outside the sphere of application of the Convention, there is uncertainty about the law on the basis of which to decide whether the parties have validly excluded the Convention, as has been pointed out, for instance, by Bonell, supra note 590, at 60-61 (stating that "given the special nature of a choice-of-laws clause, it is uncertain whether the validity of the parties' consent is to be decided according to the proper law as objectively determined, the law chosen by the parties, or the substantive rules of the forum." In this respect, "see Article 10 of the 1985 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, according to which whenever the parties' agreement as to the applicable law is either express or clearly demonstrated by the terms of the contract and the conduct of the parties, the existence and validity of that agreement shall be determined by the law chosen"). Id.

653. This solution is shared by Bonell, supra note 590, at 61; Ferrari, supra note 159, at 121.

654. See, however, Herber & Czerwenka, supra note 43, at 44 (favoring the view according to which the invalidity of the parties' choice of law leads to the application of the Vienna Sales Convention).

655. Note, that according to some authors a choice of law without indication of the applicable law was considered inadmissible; for this view, see, e.g., Rabel, supra note 164, at 53.

Contra, in the sense that this view is no longer tenable, see most recently Michael J. Bonell, UN-Kaufrecht und des Kaufrecht des Uniform Commercial Code im Vergleich, RabelS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 20, 28 (1994).

656. This solution has been favored, for instance, by Herber & Czerwenka, supra note 43, at 41-42; Sacerdoti, supra note 107, at 746; Schlechtriem, supra note 187, at 21.

657. Honnold, supra note 25, at 126.

For the same conclusion, see Bonell, supra note 593, at 19 (stating, however, not only that in the cases in which the parties failed to indicate the applicable law, one must determine the applicable national law by resorting to the rules of private international law, but also that those rules have to be the ones of the forum). For similar conclusions, see also Ferrari, supra note 159, at 122; Magnus, supra note 156, at 104.

658. For this solution, see also Ferrari, supra note 159, at 122; Herber, supra note 590, at 85; Karollus, supra note 59, at 38; Magnus, supra note 156, at 104; Siehr, supra note 145, at 600.

659. For this affirmation, see also Bonell, supra note 590, at 59.

660. See Article 7(2) CISG:

"Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

661. For this view, see, e.g., Bonell, supra note 590, at 59; Herber, supra note 590, at 88-89; Herber & Czerwenka, supra note 43, at 42; Heuzé, supra note 177, at 83; Magnus, supra note 156, at 109.

662. The author has already expressed this view in Ferrari, supra note 159, at 122.

663. Article 7(2) CISG.

664. See supra text accompanying notes 587 & 588.

665. For a discussion of this problem, see also Audit, supra note 38, at 40; Ferrari, supra note 159, at 124-126.

666. Note, that according to Bonell, supra note 590, at 63-64, the issue of the possibility of "opting-in" arises only where State courts are involved, since generally the parties are not allowed to select by virtue of an "internazionalrechtliche" choice of law directly an international convention, instead of a particular domestic law.

"The situations may be different if the parties agree to submit the disputes arising from their contract to arbitration. Arbitrators are not necessarily bound by a particular domestic law. This is self-evident, if they are authorized by the parties to decide ex aequo et bono... . But even in the absence of such an authorization there is a growing tendency to permit arbitrators to base their decisions on principles and rules different from those adopted by State courts. This tendency has recently received a significant confirmation by the UNCITRAL Model Law on International Commercial Arbitration, where it is expressly stated that "[t]he arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute" (Article 28(1))... . Following this approach the parties to an international contract would be free to indicate in the Convention the "rules of law" according to which the arbitrators shall decide any dispute, with the result that the Convention would directly apply regardless of whether or not the positive and negative conditions for its application are fulfilled in the single case."

In this regard, see also supra, the text accompanying notes 307-319.

667. See Article 4 ULIS:

"The present law shall also apply where it has been chosen as the law of the contract by the parties, whether or not their places of business or their habitual residences are in different States and whether or not such States are Parties to the Convention dated the 1st day of July 1964 relating to a Uniform Law on the International Sale of Goods, to the extent that it does not affect the application of any mandatory provisions of the law which would have been applicable if the parties had not chosen the Uniform Law."

668. For a reference to Article 4 of ULIS in scholarly writing, see, e.g., Herber & Czerwenka, supra note 43, at 45; Honnold, supra note 25, at 129-130.

669. For the possibility of "opting-in," see also Enderlein & Maskow, supra note 58, at 51 (stating that "the Convention can be interpreted in such a way that its application ... can be agreed. In this case the substantive and territorial, and hence personnel and time scope of application, can be extended"); Schlechtriem, supra note 92, at 36 (stating that "[n]ot only can the parties agree to reject the application of the Convention, but they can also agree to apply the Convention when the preconditions for application have not been met"); Winship, supra note 122, at 1.34 (stating that "[a]lthough the Conference rejected an amendment which would have expressly permitted parties to derogate from Articles 2 and 3 the debate suggests that delegations could not agree on how to express the limitations on party autonomy required by 'mandatory' national laws. Parties should not be foreclosed, therefore, from agreeing to have the Convention apply to a transaction otherwise excluded as long as the policy behind the specific exclusion is not contravened").

670. For this proposal, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 86 (reporting the proposal according to which Article 6 should have been amended as follows: "Even if this Convention is not applicable in accordance with articles 2 or 3, it shall apply if it has been validly chosen by the parties").

671. For similar reasoning, see Ferrari, supra note 159, at 125; Honnold, supra note 25, at 130; Magnus, supra note 156, at 111-112.

672. For this argument, see, e.g., the considerations of the delegate of the Republic of Korea at the Vienna Conference, reported in OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 252 (stating that "the provision proposed by the German Democratic Republic was not necessary because of the principle of the autonomy of the will of the parties. It [is] thus always possible for the parties to decide to apply the Convention, even in the cases covered by article 2 and 3").

673. For a similar statement, see Audit, supra note 38, at 40; Luzzatto, supra note 21, at 511-512.

674. Enderlein & Maskow, supra note 58, at 51.

For a similar conclusion, see Bonell, supra note 593, at 19 (stating that the result of the parties' "opting-in" "will be that the individual provisions of the Convention like any other contractual term may bind the parties only to the extent that they are not contrary to mandatory rules of the proper law of contract, i.e., the domestic law which by virtue of the rules of private international law of the forum governs the transaction in question"); Naon, supra note 147, at 101 (stating the same); Herber & Czerwenka, supra note 43, at 45 (stating the same); Honnold, supra note 25, at 134 (stating that "[r]ules of domestic law that are 'mandatory' are not disturbed when the Convention becomes applicable by virtue of an agreement by the parties"); Magnus, supra note 156, at 111; Sacerdoti, supra note 107, at 746 (stating the same).

Note, however, that a similar statement had already been made at the Vienna Conference; see, OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 252, reporting the Egyptian delegate's statement: "[T]he draft amendment was an attractive one but was unnecessary because of the principle of the autonomy of the will of the parties. If the latter agreed to apply the Convention, even in cases where it would normally not apply, their wish should be respected. Naturally, if the applicable law did not admit certain provisions of the Convention, that law would prevail. But it was not for the Convention to settle this question."

675. See supra text accompanying note 116.

676. See supra text accompanying note 205.

677. For a similar affirmation, see Winship, supra note 122, at 1.26, stating that "[n]ot all contracts for the international sale of goods will be governed by the Vienna Convention because ... the 1980 Convention requires a substantial relation between a transaction and a State which has ratified or acceded to the Convention before its provisions govern the transaction."

678. See supra text accompanying notes 586-663.

679. See supra text accompanying notes 451-585.

680. For the text of Article 4 CISG, see supra note 630.

681. In respect of the question how to define "validity" under the CISG, it has been stated that "[t]here is consensus among commentators that the law governing fraud, duress and certain other matters -- including capacity to contract and agent's authority, illegal contracts, and unconscionability -- are matters of 'validity' governed by the applicable domestic law rather than CISG." Fletchner, supra note 68, at 166 (footnotes omitted).

For a detailed discussion of the problems related to the definition of validity, as well as of those concerning the relation between domestic law and the Uniform Sales Law, see, e.g., Helen E. Hartnell, Rousing the Sleeping Dog: The Validity Exception to the Convention on Contracts for the International Sale of Goods, 20 VAND. J. TRANSNAT'L L. 639 (1987); Christoph R. Heiz, Validity of Contracts under the United Nations Convention on Contracts for the International Sale of Goods, April 11, 1980, and Swiss Contract Law, 20 VAND. J. TRANSNAT'L L. 639 (1987); Peter Huber, UN-Kaufrecht und Irrtumsanfechtung, ZEITSCHRIFT FÜR EUROPÄISCHES PRIVATRECHT 585 (1994); Rudolf Lessiak, UNCITRAL-Kaufrechtsübereinkommen und Irrtumsanfechtung, JURISTISCHE BLÄTTER 487 (1989).

682. For a detailed discussion of the problems caused by this exclusion, see, e.g., Ferrari, supra note 159, at 88-94; Sampson, supra note 338, at 143 ff.

683. Note, however, that the issues concerning the statute of frauds are dealt with by the Convention (Article 11-13), even though they are generally considered as being validity issues. For a similar affirmation, see Ferrari, supra note 159, at 215; Herber & Czerwenka, supra note 43, at 33; Reinhart, supra note 139, at 39.

684. See Article 5 CISG: "This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person."

685. For a discussion of the issues arising from Article 5 CISG, see Rolf Herber, UN-Kaufrechtsübereinkommen: Produkthaftung -- Verjährung, MONATSSCHRIFT FÜR DEUTSCHES RECHT 105 (1993); Dirk Otto, Produkthaftung nach dem UN-Kaufrecht, MONATSSCHRIFT FÜR DEUTSCHES RECHT, 533 (1992); Dirk Otto, Nochmals: UN-Kaufrecht und EG-Produkthaftungsrichtlinie, MONATSSCHRIFT FÜR DEUTSCHES RECHT 306 (1993); Peter Schlechtriem, The Borderland of Tort and Contract -- Opening a New Frontier?, 21 CORNELL INT'L L.J. 467 (1988).

686. For a similar affirmation, see Magnus, supra note 156, at 316, stating that the obligation to notify the seller in case of lack of conformity of the goods bought is one of the most important practical issues of the CISG; under the 1964 Uniform Sales Law, about one fourth of all the published court decisions dealt with the notification of the buyer.

687. For this affirmation, see Reinhard Resch, Zur Rüge bei Sachmängeln nach UN-Kaufrecht, ÖSTERREICHISCHE JURISTENZEITUNG 470, 470 (1992).

688. See Herber & Czerwenka, supra note 43, at 181, stating that Article 39 CISG is based upon Article 39 ULIS, but that there are some differences. Indeed, Article 39(2) ULIS was not retained. Thus, unlike under the ULIS, under the CISG it is not necessary that "[i]n giving the notice to the seller of any lack of conformity, the buyer shall ... invite the seller to examine the goods or cause them to be examined by his agent." Article 39(2) ULIS.

689. See, e.g., Schlechtriem, supra note 187, at 60.

690. For this statement, see also Schlechtriem, supra note 92, at 70, stating that "[o]ne of the [1980 Diplomatic] Conference's most difficult problems concerned the consequences of failing to give timely notice of non-conformity." For a similar statement, see Eörsi, supra note 274, at 350, where the author states that "one of the most dramatic debates at the U.N. Conference concerned the procedure in cases of nonconformity."

691. See, e.g., OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 320 ff. & 345 ff.

692. See Article 39 CISG:

"(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee."

693. Honnold, supra note 25, at 337, where the author also states that under the language of Article 39 "a seller's action to recover the price would not be subject to a set-off or counterclaim based on a defect which the buyer knew or ought to have discovered if the buyer fails to notify the seller within the periods stated in Article 39." (footnote omitted)

694. See Schlechtriem, supra note 92, at 70.

695. For a similar statement, see also Honnold, supra note 25, at 331, stating that Article 39 CISG is so interrelated with other Articles that they have to be considered as a group.

696. See Article 40 CISG: "The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer."

697. See Article 44 CISG: "Notwithstanding the provisions of paragraph (1) of articles 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give notice."

698. See Elizabeth H. Patterson, United Nations Convention on Contracts for the International Sale of Goods: Unification and the Tension Between Compromise and Domination, 22 STAN. J. INT'L. L. 263, 289 (1986).

699. See also Henry Gabriel, PRACTITIONER'S GUIDE TO THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) AND THE UNIFORM COMMERCIAL CODE (UCC) 117-118 (1994), where the author states that "Articles 40 and 44 modify the harshness of the consequences to the buyer who fails to give notice in conjunction with Article 39."

700. Id. at 115.

701. For a detailed discussion of the conformity of goods under the CISG and the seller's liability in case of non-conformity, see, among others, Richard Hyland, Liability of the Seller for Conformity of the Goods under the UN Convention (CISG) and the Uniform Commercial Code, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 305.

702. For a similar statement, see, for instance, Honnold, supra note 25, at 334, where the author states -- in respect of the "nonconformity" of goods -- that "[t]he area embraced by this concept is defined in Article 35." For a similar statement, see also Herber & Czerwenka, supra note 43, at 182.

703. See Article 35 CISG:

"(1) The seller must deliver the goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.

"(2) except where the parties have agreed otherwise, the goods do not conform with the contract unless they:

(a) are fit for the purposes for which the goods of the same description would ordinarily be used;

(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgment;

(c) posses the qualities of goods which the seller has held out to the buyer as a sample or model;

(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.

"(3) The seller is not liable under subparagraph (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity."

704. For papers written on the lack of conformity, see, among others, Marino Bin, La non conformità dei beni nella convenzione di Vienna sulla vendita internazionale, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 755 (1990); Luciana Cabella Pisu, La "mancanza" di conformità: il modello della Convenzione e la tradizione giuridica italiana, in LA VENDITA INTERNAZIONALE, supra note 32, 359; Denis Tallon, La consécration de la notion de conformité après la Convention des Nations Unies sur les contrats de vente internationale de marchandises, in GEDÄCHTNISSCHRIFT FÜR LEONTIN-JEAN CONTANTINESCO 753 (Köln 1983); René Wyler, Garantie, conformité et inspection des marchandises dans la vente internationale. Etude de la convention de Vienne, in FESTSCHRIFT FÜR GILLIARD 175 (Tolochenaz 1987).

705. For a gathering of cases concerning the non-conformity of goods, see Witz, supra note 68, at 86.

706. See OLG Frankfurt a.M., January 18, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT 1013 (1994).

707. See LG Aachen, April 3, 1990, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 491 (1990).

708. See BGH, March 8, 1995, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 595 (1995).

709. For cases specifying when there is lack of conformity under the ULIS, see Schlechtriem & Magnus, supra note 168, at 220-229.

710. For this statement, see Gabriel, supra note 699, at 118; Honnold, supra note 25, at 334.

Note, however, that under the ULIS, defects in packaging were not always considered as defects in the sense of Article 33 ULIS; see, in this regard, Rechtbank Alkmaar, May 2, 1985, reported in Schlechtriem & Magnus, supra note 168, at 228-229.

711. See for this statement, Ingeborg Schwenzer, Art. 39, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 357 at 358.

For a judicial affirmation of this principle, see OLG Bamberg, February 23, 1979, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 566 (1979), relating, however, to the ULIS.

712. For this solution, see also Gabriel, supra note 699, at 118-119.

713. Honnold, supra note 25, at 334.

714. See Article 34 CISG:

"If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention."

715. For a similar suggestion, see also Honnold, supra note 25, at 334, where the author also suggests applying the notice requirement to cases where the defect relates to the documents on the grounds that "supplying the correct documents is part of the seller's obligation to deliver the goods... . Moreover, the provision in Article 34 allowing the seller to cure a defect in documents would be of little value unless the seller is notified of the defect." (footnote omitted)

For this solution, see also Enderlein et al., supra note 48, at 135; Herber & Czerwenka, supra note 43, at 160-161; Magnus, supra note 156, at 319.

716. See Article 33 ULIS:

"(1) The seller shall not have fulfilled his obligation to deliver the goods where he has handed over:

(a) part only of the goods sold or a larger or a smaller quantity of the goods than he contracted to sell;

(b) goods which are not those to which the contract relates or goods of a different kind;

(c) goods which lack the qualities of a sample or model which the seller has handed over or sent to the buyer, unless the seller has submitted it without any express or implied undertaking that the goods would conform therewith;

(d) goods which do not possess the quantities necessary for their ordinary or commercial use;

(e) in general, goods which do not possess the qualities and characteristics expressly or impliedly contemplated by the contract.

"(2) No difference in quantity, lack of part of the goods or absence of any quality or characteristic shall be taken into consideration where it is not material."

717. See, e.g., Herbert Stumpf, Art. 33, in KOMMENTAR ZUM EINHEITLICHEN KAUFRECHT, supra note 166, 269 at 271.

718. For this line of reasoning, see also Resch, supra note 687, at 471.

719. Schlechtriem, supra note 92, at 70. For this solution, see also Michael Binder, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT, supra note 119, 146 at 146; Ebenroth, supra note 389, at 689; Ulrich Huber, Die Haftung des Verkäufers für Verzug und Sachmängel nach dem Wiener Kaufrechtsübereinkommen, ÖSTERREICHISCHE JURISTISCHE BLÄTTER 273, 278; Huber, supra note 270, at 483-484; Karollus, supra note 59, at 125-126; Magnus, supra note 156, at 319; Piltz, supra note 21, at 50; Elisabeth Stern, ERKLÄRUNGEN IM UNCITRAL-KAUFRECHT 73 (Vienna, 1990).

Contra, in the sense that he does not consider the delivery of an aliud as requiring a notification in order not to lose one's rights, Massimo Cesare Bianca, Art. 35, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 268 at 273-274; Franz Bydlinski, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT, supra note 119, 137 at 137; LOEWE, supra note 346, at 51; Karl Neumayer, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHTS, supra note 119, 135 at 136. For this line of reasoning, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 29, stating that "if the contract calls for the delivery of corn, the seller has not delivered if he provides potatoes."

720. According to Honnold, supra note 25, at 333-334, as well, the ratio behind the notification requirement laid down in Article 39 CISG lies in the possibility for the seller, if the buyer notifies him promptly, "[to] inspect and test the goods to ascertain whether a claim is justified. Moreover, when the inspection shows that the goods are defective, the seller may be able to exercise its right to cure the defect." See also Enderlein, supra note 326, at 170-171.

Note, that several recent court decisions have stated that the ratio behind Article 39 CISG is the need for the seller to be put in a position to know whether his claim for the payment of the price can be barred by any counterclaim; see, e.g., BGH, March 8, 1995, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 595, 597 (1995); OLG Düsseldorf, January 8, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 325, 325 (1993). For this rationale behind the notice requirement, see, with reference, however, to the ULIS provisions, BGH, June 2, 1982, published in NEUE JURISTISCHE WOCHENSCHRIFT 2730, 2731 (1982); OLG Bamberg, February 23, 1979, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 566, 567 (1979); OLG Köln, December 19, 1977, published in MONATSSCHRIFT FÜR DEUTSCHES RECHT 1023, 1023 (1980).

721. See, for instance, OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34, which expressly states that Article 38 is prefatory to Article 39; see also Schlechtriem, supra note 92, at 69 (stating the same).

722. See Article 38 CISG:

"(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.

"(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.

"(3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination."

723. This has been expressly pointed out by a recent German court decision; see OLG Düsseldorf, January 8, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 325 (1993).

724. For a similar statement evidencing the interrelationship of Articles 38 and 39, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34:

"This article [38] is prefatory to article [39], which provides that if the buyer fails to notify the seller of lack of conformity of the goods within a reasonable period of time after he has discovered it or ought to have discovered it, he loses the right to rely on the lack of conformity. The time when the buyer is obligated to examine the goods under article [38] constitutes the time when the buyer "ought to have discovered" the lack of conformity under article [39]."

725. See, however, Honnold, supra note 25, at 328, stating that the inspection of the goods constitutes "a necessary step towards the timely notification of defects required by Article 39."

726. For a similar statement, see also Herber & Czerwenka, supra note 43, at 175; Magnus, supra note 156, at 302-303.

727. See BGH, June 2, 1982, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 228 (1983).

728. This was true under the ULIS, as expressly pointed out by a German Supreme Court decision; see BGH, June 2, 1982, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 228 (1983).

729. Enderlein, supra note 326, at 166.

730. This is why one cannot agree with Piltz, supra note 21, at 192, where the author states a rule according to which a period of time of 3 or 4 days is to be generally considered as being a "short period" in the sense of Article 38 CISG.

731. See Article 38 ULIS:

"(1) The buyer shall examine the goods, or cause them to be examined, promptly.

"(2) In case of carriage of the goods the buyer shall examine them at the place of destination.

"(3) If the goods are redispatched by the buyer without transshipment and the seller knew or ought to have known, at the time when the contract was concluded, of the possibility of such redispatch, examination of the goods may be deferred until they arrive at the new destination.

"(4) The methods of examination shall be governed by the agreement of the parties or, in the absence of such agreement, by the law or usage of the place where the examination is to be effected. (emphasis added.)"

[ULIS defines promptly as "performed within as short a period as possible in the circumstances, from the moment when the act could reasonably be performed" (ULIS Article 11).]

732. See Huber, supra note 270, at 482.

733. See Wolfgang Reishofer, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT, supra note 119, 134 at 134; Ingeborg Schwenzer, Art. 38, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 347 at 352.

734. See Reinhart, supra note 139, at 92.

735. See, e.g., LG Aachen, April 3, 1990, published in RECHT DER INTERNATIONALEN WIRTSCHAFT, where the court states that an examination made the same day as the delivery is timely. But this is not surprising; see Resch, supra note 687, at 473.

736. For a similar conclusion, see also Magnus, supra note 156, at 307.

Note, however, that Herber & Czerwenka, supra note 43, at 177, state that from a substantial point of view the provisions of the ULIS and the CISG do not differ, and this is why the authors have recourse to case law concerning the ULIS when trying to determine the concept of the "short period" of time referred to in Article 38 CISG.

737. See Magnus, supra note 156, at 307.

738. See also Massimo Cesare Bianca, Art. 38, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 295 at 299.

739. Id. at 296. For a similar conclusion, see also Magnus, supra note 156, at 307.

740. For this assertion, see Bianca, supra note 738, at 299; Magnus, supra note 156, at 308.

741. Bianca, supra note 738, at 299.

742. See Herber & Czerwenka, supra note 43, at 177.

743. For a similar statement, see Enderlein & Maskow, supra note 58, at 155, stating that "[g]enerally, it can be said that goods of more sophisticated technology or of complex composition require longer time to be examined." See also Bianca, supra note 738, at 299.

744. For this assertion, see also Magnus, supra note 156, at 308.

For a more detailed list of circumstances which might influence the length of the "short period" mentioned in Article 38 CISG, see, e.g., Enderlein, supra note 326, at 167, stating that

"[t]he circumstances which have to be taken into account include the place where the goods are situated at the time of passing of the risk (cf. Art. 36 para. 1 and Art. 66 et seq.); the type of goods, for instance, a single piece, bulk goods, perishable goods, consumer goods; how the goods are packaged or the type of container; whether there is a package which, for example, will not be opened till the goods reach the final consumer; whether the buyer uses the goods himself or resells them; the technical prerequisites at the buyer's disposal; and ... whether usages and practices apply."

745. Where a contract involves carriage of the goods, however, Article 38 CISG defers inspection until the goods arrive at their destination (see, e.g., Gabriel, supra note 699, at 115), since "[a]n examination of the goods at the frontier or when passing the rail of a ship is hardly imaginable, and, in general, ... neither possible nor necessary." Enderlein, supra note 326, at 168.

According to Article 38(3) CISG, inspection is also deferred in cases where the goods are redirected or redispatched provided (a) that the buyer did not have a reasonable opportunity to examine them and (b) that at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such dispatch or redirection; see Bianca, supra note 738, at 300.

746. For this statement, see also Herber & Czerwenka, supra note 43, at 177.

747. See Schlechtriem, supra note 92, at 69.

748. Article 38(4) ULIS.

749. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34, stating that "because of the international nature of the transaction, the determination of the type and scope of examination required should be made in the light of international usages." (emphasis added)

For a similar statement, see also Bianca, supra note 738, at 297, where the author also states that "the reference to the law or usage made in ULIS ... does not seem satisfactory, especially because it could lead to exonerating the buyer from his burden when there are no laws, rules, or sound usages in the place where the goods must be examined."

750. It has been often pointed out that the inspection need not be made by the buyer himself; see, for instance, Enderlein, supra note 326, at 166, stating that "[t]he goods need not be examined personally by the buyer or his own staff. The buyer may also order third persons, for instance, specialized and impartial control organizations, to examine the goods."

751. For a similar statement, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34, stating that "[t]he examination which this article requires the buyer to make is one which is reasonable in the circumstances. The buyer normally is not required to make an examination which would reveal every possible defect."

752. See Kazuaki Sono, Art. 39, in COMMENTARY ON THE INTERNATIONAL SALE LAW, supra note 12, 303 at 310.

753. See Resch, supra note 687, at 472.

754. OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34.

755. For this principle, see LG Stuttgart, August 31, 1989, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 984, 984 (1989).

756. See supra text accompanying notes 721 & 722.

757. By virtue of Article 27 CISG ("Unless otherwise expressly provided in this Part of the Convention, if any notice, request, or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication") it is sufficient for the notice de quo to be sent in time. See also Karollus, supra note 59, at 126; Resch, supra note 687, at 476; Schlechtriem, supra note 187, at 59.

758. See Sono, supra note 752, at 309.

759. But see Heuzé, supra note 177, at 230, stating that the concept of "reasonable time" under Article 39 CISG is to be considered very similar to that of "prompt" notification under the ULIS; see also Reinhart, supra note 139, at 95, which presupposes the foregoing analogization, when stating that the cases rendered under the ULIS can be taken into account in order to determine whether the buyer has to give notice.

760. Contra, see Enderlein & Maskow, supra note 58, at 159, stating that "[t]he reasonable time is in any case a short period (just like in Article 39, paragraph 1 ULIS). Such time is a relative time... . Reasonable, in many cases, will mean giving notice immediately."

761. For this suggestion, see also Magnus, supra note 156, at 324; Schwenzer, supra note 711, at 361.

762. For this conclusion, see also Schwenzer, supra note 711, at 361.

763. For this assertion in legal writing, see also Magnus, supra note 156, at 325; Piltz, supra note 21, at 194. See also 3 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 87 (1972).

764. For the importance of this element in determining the "reasonable time" under Article 39 CISG, see also Sono, supra note 752, at 309, where the author states that

"[w]here the buyer is rejecting the goods, a prompt communication to the seller is important so that he can have an opportunity to make a tender of conforming goods within the required period. In such cases, a prompt communication might also be important to give the seller an opportunity to care for or redispose of the rejected goods and reduce the chance for loss or damage to the goods or the incurring of unnecessary expense. On the other hand, where the buyer decides to keep the defective goods, subject to a claim for damages, the above reasons for prompt notification may not be applicable."

765. For a list of different circumstances which can impact on the determination of the period for notice, see Claude D. Rohwer & Jack Coe, The 1980 Vienna Convention on the International Sale of Goods and the UCC -- Peaceful Coexistence?, in LEGAL ASPECTS OF INTERNATIONAL BUSINESS TRANSACTIONS 272-273 (Dennis Campbell and Claude D. Rohwer eds., Elsevier, 1984), where the authors state that

"[f]actors important in determining whether a reasonable time has passed might include: (1) difficulty of discovering the defect -- influenced by the nature of the defect, the complexity of the goods, and the sophistication of the buyer; (2) the terms of the contract; (3) relative perishability of the goods; (4) course of performance of the contract to date; and (5) usage of trade."

However, it is here suggested that not all the foregoing circumstances must be taken into account in determining whether the notice is made within a reasonable period of time. The complexity of the goods, for instance, may be relevant for the time needed for the inspection. But it does not appear to be relevant in order to determine whether a reasonable period has passed between the moment the defects are discovered (or ought to have been discovered) and that at which the notice is given.

766. It has often been said that perishability is a circumstance to be taken into account in determining the "reasonable period" of time for notice; see, e.g., Magnus, supra note 156, at 325; Schwenzer, supra note 711, at 361.

767. See also Enderlein et al., supra note 48, at 135.

768. See OLG Düsseldorf, January 8, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 325, 325 (1993).

Note, however, that in a recent case the German Supreme Court stated, although the sales contract [involved] perishable goods (mussels), that a one month period would have been "reasonable," but that in the case at hand the buyer lost his rights since he gave notice more than a month after the (apparent) defect ought to have been discovered; see BGH, March 8, 1995, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 595, 597 (1995).

769. See Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich, Arbitral Awards Nos. 4366 & 4318, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 590 (1995).

770. See Rohwer & Coe, supra note 765, at 272; Schlechtriem, supra note 92, at 72.

771. For this assertion, see also Herber & Czerwenka, supra note 43, at 187; Magnus, supra note 156, at 330.

772. See also Schwenzer, supra note 711, at 366.

773. See LG Giessen, July 5, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSSPRECHUNGS-REPORT 438 (1995) (stating that the agreement of the parties to limit the period of time within which the notice must occur to 8 days is valid); LG Baden-Baden, August 14, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 62, 62 (1992) (considering the agreement of a 30 days limitation as being valid); OLG Saarbrücken, January 13, [1993], quoted in Schwenzer, supra note 711, at 367 n.101 (deciding that the agreement concerning an eight day "reasonable time period" is valid).

774. For this qualification, see Schwenzer, supra note 711, at 363.

775. For this qualification, see Resch, supra note 687, at 476.

776. Honnold, supra note 25, at 336.

777. See Sono, supra note 752, at 310, where the author states that

"in the absence of a contrary contractual agreement, Article 39(2) provides a cut off period of two years beyond which the buyer can no longer give notice of non-conformity of the goods. Accordingly, although Article 39(1) provides that, in order to assert a lack of conformity against the seller, notice of the non-conformity must be given within a reasonable time after the buyer has discovered it or ought to have discovered it, such assertion will be practically precluded if the time of the discovery of the non-conformity is after the two-year time-limit."

See also Honnold, supra note 25, at 336, stating that according to Article 39(2) "the notice must be given within the two-year period even though a defect is discovered subsequent to that period, and even though a later notice would satisfy the general standards of Article 39(1)... ."

For similar remarks, see also Jacob Ziegel, REPORT TO THE UNIFORM LAW CONFERENCE OF CANADA ON THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 96 (Uniform Law Conference of Canada ed., 1981).

778. See Joseph Lookofsky, Remedies for Breach under the CISG, in COMMERCIAL DAMAGES: A GUIDE TO REMEDIES IN BUSINESS LITIGATION 1, 21-22 (Charles L. Knapp ed., 1986), where the author states that "[Article 39(2)] with its absolute, two-year cutoff regarding the right to rely -- i.e., assert any cause of action for nonconformity -- marks a significant departure from some national laws... . Compared with the UCC, which contains no comparable provision, the rule is clearly pro-seller. But the provision also represents a pro-buyer shift when compared with national statutes of seller which provide for even shorter cutoff periods." See also Reitz, supra note 315, at 462-463, stating that "the two-year cap represents a compromise between the German six-month limitations period and the UCC (and Limitations Convention) period of four years." (footnotes omitted)

For a list of some domestic cutoff periods, see, e.g., Kritzer, supra note 56, at 317.

779. See Enderlein et al., supra note 48, at 136.

780. See id. at 137.

781. J.D. Feltham, The United Nations Convention on Contracts for the International Sale of Goods, J. BUS. LAW 346, 354 (1981).

782. For a similar justification of the rule set forth in Article 39(2) CISG, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 355, where it is stated that

"[e]ven though it is important to protect the buyer's right to rely on the latent defects which become evident only after a period of time has passed, it is also important to protect the seller against claims which arise long after the goods have been delivered. Claims made long after the goods have been delivered are often of doubtful validity and when the seller receives his first notice of such a contention at a late date, it would be difficult for him to obtain evidence as to the condition of the goods at the time of delivery, or to invoke the liability of a supplier from whom the seller may have obtained the goods or the materials for their manufacture."

783. For this conclusion, see also Magnus, supra note 156, at 321; Resch, supra note 687, at 475.

784. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 35, where it is stated that

"The purpose of the notice is to inform the seller what he must do to remedy the lack of conformity, to give him the basis on which to conduct his own examination of the goods, and in general to gather evidence for use in any dispute with the buyer over the alleged lack of conformity. Therefore, the notice must not only be given to the seller within a reasonable period of time after the buyer has discovered the lack of conformity or ought to have discovered it, but it must specify the nature of the lack of conformity."

785. See also Honnold, supra note 25, at 334-335, where the author states that "[q]uestions as to what the notice must say should be answered with regard for the functions served by the notice... . [T]he principal functions are to give the seller an opportunity to obtain and preserve evidence of the condition of the goods and to cure the deficiency." See also Magnus, supra note 156, at 321; Resch, supra note 687, at 475.

786. See, e.g., LG Giessen, June 6, 1978, reported in Schlechtriem & Magnus, supra note 187, at 243-244.

787. For this assertion, see also Piltz, supra note 68, at 1104.

788. See LG München, July 3, 1989, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 316 (1990).

789. See OLG Frankfurt, January 18, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 240 (1994).

790. See LG Stuttgart, August 31, 1989, published in PRAXIS DER INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 317 (1990).

791. For a reference to the cases mentioned in the text as well as other cases decided under the CISG, see, most recently, Magnus, supra note 156, at 321.

792. Id. at 322.

793. See also Resch, supra note 687, at 475.

794. See, in respect, however, of the ULIS, OLG Koblenz, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 591 (1991).

795. See Magnus, supra note 156, at 322.

796. Id. at 327.

797. See LG Stuttgart, August 31, 1989, published in PRAXIS DER INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 984 (1989).

798. See supra text accompanying notes 693-94.

799. See Honnold, supra note 25, at 337.

800. According to Resch, supra note 687, at 474, the buyer who does not give a proper notice (because it is either untimely or not specified enough), has to pay the entire amount even though the lack of conformity consists in the delivery of less goods than agreed upon. The contrary is true as well: where the seller delivers a quantity of goods greater than that provided for in the contract, the improper notice binds the buyer to pay for the excess quantity at the contract rate.

801. For the text of Article 40 CISG, see supra note 696.

802. See Resch, supra note 687, at 478.

803. See Article 40 ULIS: "The seller shall not be entitled to rely on the provisions of Articles 38 and 39 if the lack of conformity relates to facts of which he knew, or of which he could not have been unaware, and which he did not disclose."

804. See also Kazuaki Sono, Art. 40, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 314 at 314, stating that Article 40 "relaxes the notice requirements of Article 38 and 39." However, it does not appear the notice requirements are relaxed, but rather the consequences of an improper notice.

805. Id.

806. For this statement, see also Magnus, supra note 156, at 333.

807. See par. 377(5) of the German Commercial Code.

808. See Schlechtriem, supra note 92, at 70, where the author states that Article 40 "concerns not only the seller's deceit ... but also his gross negligence." For similar statements, see also Loewe, supra note 346, at 61; Magnus, supra note 156, at 332-333; Resch, supra note 687, at 478.

809. See Resch, supra note 698, at 471.

810. For this evaluation, see Kazuaki Sono, Art. 44, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 324 at 326.

811. For a summary of the criticism of the rule laid down in Article 39, see S.K. Date-Bah, The Convention on the International Sale of Goods from the Perspective of the Developing Countries, in LA VENDITA INTERNAZIONALE, supra note 32, 23 at 30-31.

812. See Herber & Czerwenka, supra note 43, at 201-202, stating that the industrialized nations reluctantly accepted the compromise in which the introduction of Article 44 CISG resulted.

813. See, e.g., Honnold, supra note 25, at 338.

814. See Sono, supra note 810, at 326, stating that

"[u]nder Article 44, the buyer who has a reasonable excuse for his failure to give the required notice will be afforded some limited remedies: the buyer may reduce the price in accordance with Article 50 or claim damages under Article 74 except for his loss of profit such as the profit that he would have gained by resale had the goods conformed to the contract. There are only residual remedies that the buyer may pursue. Accordingly, the buyer can no longer require the seller to cure the lack of conformity as a matter of right under Article 46. Most importantly, the buyer cannot avoid the contract under Article 49 even if the avoidance would have otherwise been possible."

815. See Article 44 CISG: "Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice."

816. See Magnus, supra note 156, at 359.

817. See Honnold, supra note 25, at 338; Loewe, supra note 346, at 65.

818. For this statement, see Magnus, supra note 156, at 259.

819. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 346, where the statements of the French delegate are reported, who considered the "reasonable excuse" criterion not only as being vague, but also as being a "fruitful source of litigation."

820. See, e.g., Honnold, supra note 25, at 340, stating that "the problems [Article 44] poses can easily be overstated. The sanction imposed by Article 39(1) ... is severe and significant sanctions are preserved against even a buyer who qualifies for 'excuse' under Article 44. Consequently buyers are not likely to refrain from making a prompt complaint when they receive defective goods. In any event, an undue delay in asserting a defect will continue to militate against the credibility of the claim." (footnote omitted)

821. See Schlechtriem, supra note 92, at 70, asserting that "[t]his inroad to the seller's interest in regarding the transaction as fully completed may put a considerable burden on the seller, particularly because 'reasonable excuse for his failure to give the required notice' is indefinite and open to an interpretation favorable to the buyer."

822. The provision de quo has already been referred to in a court decision where, however, it was not examined in detail. Indeed, the court referred to it and merely stated that there was no "reasonable excuse" in the case at hand, without elaborating further on it. See OLG Düsseldorf, February 10, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 53 (1995).

823. For similar statements, see also Magnus, supra note 156, at 360; Reinhart, supra note 139, at 105.

824. See for a similar assertion, Honnold, supra note 25, at 338, stating that "[t]he "reasonable excuse" for a failure to give notice in conformity with Article 39(1) needs to be understood and applied in the light of its legislative history."

825. Several legal scholars have pointed out that the "reasonable excuse" criterion has been introduced to reach equitable results in cases where the application of the rule laid down in Article 39(1) appears to be too drastic. See, e.g., Karollus, supra note 59, at 128; Resch, supra note 687, at 479.

826. Honnold, supra note 25, at 338.

827. See, in this regard, Enderlein & Maskow, supra note 58, at 310, stating that "[t]he regulation of interest has caused considerable difficulties both in preparing and holding the [1980 Vienna] diplomatic conference." See also Kritzer, supra note 56, at 498.

828. For papers on the issue de quo, see, most recently, Franco Ferrari, Tasso degli interessi ed applicazione uniforme della Convenzione di Vienna sui contratti di vendita internazionale, RIVISTA DI DIRITTO CIVILE II 277 (1995); Gert Reinhart, Fälligkeitszinsen und UN-Kaufrecht, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 376 (1991).

829. For court decisions dealing with the issue of the rates of interests on sums in arrears, see, among others, OLG Frankfurt, April 20, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 593 (1994); OLG München, March 2, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 595 (1994); OLG Düsseldorf, February 10, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 506 (1994); KG Berlin, January 24, 1994, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 683 (1994); OLG Frankfurt, January 18, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 240 (1994); OLG Koblenz, September 17, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 934 (1993); LG Heidelberg, July 3, 1992, reported in Michael J. Bonell, Rassegna giurisprudenziale in tema di vendita internazionale, 7 DIRITTO DEL COMMERCIO INTERNAZIONALE 651, 655 (1993); Municipal Court of Budapest, March 24, 1992, published in German in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 263 (1993); LG Frankfurt a.M., September 16, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 952 (1991); OLG Frankfurt a.M., June 13, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 591 (1991); Juzgado nacional de primera instancia en lo comercial, May 20, 1991, reported in Bonell, supra this note, at 653; LG Hamburg, September 26, 1990, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 400 (1991); AG Oldenburg i.H., April 24, 1990, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 336 (1991); LG Stuttgart, August 31, 1989, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 984 (1989).

830. See, e.g., Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich, Nos. 4366 and 4318, partially reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 590 (1995); Arbitral Tribunal ICC, No. 7153, published in JOURNAL DU DROIT INTERNATIONAL 1006 (1992).

For a paper discussing the rate of interests in the practice of international arbitral tribunals (independently, however, from the CISG), see Paolo Cerina, Interest as Damages in International Commercial Arbitration, 4 THE AM. REV. OF INT'L ARB. 255 (1993).

831. See infra text accompanying notes 851-63.

832. See Article 83 ULIS:

"Where the breach of contract consists of delay in the payment of the price, the seller shall in any event be entitled to interest on such sum as is in arrears at a rate equal to the official discount rate in the country where he has his place of business or, if he has no place of business, his habitual residence, plus 1%."

For a judicial application of this formula, see, most recently, OLG Frankfurt, January 5, 1989, NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 636 (1990).

833. Enderlein & Maskow, supra note 58, at 310.

834. See, e.g., Article 58 of the 1976 Draft Convention; see also the proposal made by the Czechoslovakian Delegation (A/CONF.97/C.1/L/218) during the Vienna Conference, reprinted in OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE 137.

For the reasons which lead to the rejection of the formula laid down in Article 83 ULIS, see, among others, Schlechtriem, supra note 92, at 100.

835. For an overview of the different attempts, see, among others, Date-Bah, supra note 811, at 36-37.

836. For a short historical account on the issue of the rate of interest raised during the drafting period of the Vienna Sales Convention, see Barry Nicholas, Art. 78, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 568 at 568.

837. See the Summary Record of the Considerations of the German Delegation, reprinted in OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 416, which stated that "[a]t all events, the innocent party should be entitled to interest on the sum due in an amount based on interest rates fixed by law or by the Convention itself and which represent a minimum figure."

838. See Summary Records of the Czechoslovakian Delegation's Considerations Made During the 29th Meeting, reprinted in OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 137, where the Czechoslovakian proposal is reprinted:

"(1) If the breach of contract consists of delay in the payment of the price, the seller is in any event entitled to interest on such sum as is in arrears at a rate equal to the official discount rate prevailing in the country where the buyer has his place of business, at the time of delay increased by one per cent or, if there is no such rate, at the rate applied to unsecured short-term international commercial credits increased by one per cent."

839. See the joint proposal of Denmark, Finland, Greece and Sweden (A/CONF.97/C.1/L.216), reprinted in OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 137.

840. See Reinhart, supra note 139, at 177-178, stating that the impossibility of agreeing upon a rule on the interest rates was due, among others, to political reasons.

841. As previously stated in the text, the differing economic views of Western countries and Socialist ones led to contrasting opinions revolving

"around the question of whether the interest level in the creditor's country or the one in the debtor's country should be decisive. At the time of the diplomatic conference there were serious differences between the Western industrialized countries, where the amount of interest is formed in the market (naturally influenced by political measures) and had at that time reached considerable amounts, and most of the at-the-time-so-called socialist countries where the interest was fixed by law and relatively low. It was against this background that the Western industrialized countries aimed towards interest to be set according to the level of the creditor's country. This would have meant that debtors from those countries would have had to pay low interest to creditors from Eastern countries, but by contrast, debtors from the latter countries would pay high interest." Enderlein & Maskow, supra note 58, at 310.

For a reference to the discussion of this issue by the different delegations during the Vienna Conference, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 388-393.

842. See Schlechtriem, supra note 92, at 99, stating that the problems relating to interest payments arose partially out of religious beliefs. For similar statements, see also Rolf Herber, WIENER UNCITRAL-ÜBEREINKOMMEN ÜBER INTERNATIONALE WARENKAUFVERTRÄGE VOM 11. APRIL 1980 46 (2d ed., Cologne 1983); Nicholas, supra note 836, at 569; OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 416.

843. For this affirmation, see also Reinhart, supra note 139, at 177-178.

See also Peter Schlechtriem, Recent Developments in International Sales Law, 18 ISRAEL L. REV. 323 (1983), stating that during the 1980 Vienna Conference "[t]here were ... irreconcilable, ideologically as well as economically motivated convictions on the issue of payment of interest for outstanding debts, in particular the purchase price: some Islamic countries, for instance, rejected an obligation to pay interest for religious reasons."

844. For this evaluation, see Schlechtriem, supra note 843, at 324.

845. See Article 78 CISG: "If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74."

846. Enderlein & Maskow, supra note 58, at 311.

This statement had often been repeated in judicial applications of Article 78; see, among others, OLG München, March 2, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 595, 596 (1994); OLG Frankfurt, January 18, 1994, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 240, 241 (1994); OLG Koblenz, September 17, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 934, 938 (1993); OLG Frankfurt a.M., June 13, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 591, 591 (1991).

847. Note, that in order for a payment to be in arrears no formal notice of default is necessary, as it is, on the contrary, in some national legal systems. See Denis Tallon, The Buyer's Obligation Under the Convention on Contracts for the International Sale of Goods, in INTERNATIONAL SALES, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, supra note 79, 7.1, 7.14, stating that "payment is due without any request or compliance with any formality on the part of the [creditor]." For a similar affirmation, see also Hans Herrmann Eherstein, Art. 78, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT 644, 646 (Peter Schlechtriem ed., Munich 1990).

848. Note that, since the obligation to pay interest is conceived as a general rule, "a debtor still remains liable for interest payments even if his default is due to an impediment beyond his control and he is, therefore, not liable for damages." Schlechtriem, supra note 92, at 100. "If, for example, the price is payable in the seller's currency and the buyer is prevented from paying by a temporary ban imposed by his government on the export of currency, and if under Article 79 the seller is able to claim the price when the ban ends, Article 78 seems to entitle him to interest." Nicholas, supra note 836, at 571.

Contra, in the sense that he assumes that interest is part of the damages and therefore wants to permit an exemption on the ground of impediments, see F.J.A. van der Velden, HET WEENSE KOOPVERDRAG 1980 EN ZIJN RECHTSMIDDELEN 405 (Deventer, 1988).

849. For this solution, see also Enderlein & Maskow, supra note 43, at 311, stating that the amount of interest "is fixed a priori and irrespective of the damage which is caused by the arrears in payment." Therefore, "the creditor should not have to show he actually incurred such a cost." Nicholas, supra note 836, at 570. For a similar statement, see also Herber & Czerwenka, supra note 43, at 348.

850. See, e.g., OLG Frankfurt a.M., January 18, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 240, 241 (1994); LG Hamburg, September 26, 1990, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 1015, 1019 (1990); AG Oldenburg i.H., April 24, 1990, reprinted in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 336, 338 (1991).

851. See Leif Sevón, Obligations of the Buyer under the Vienna Convention on the International Sale of Goods, JURIDISK TIDSKRIFT 327, 341 (1990), stating that "[t]he Convention established only the right to interest but deals neither with the rate of interest nor with the time for which interest may be calculated."

852. Ziegel, supra note 777, at 149. For a similar statement, see also Sevon, supra note 326, at 229.

853. For the distinction of gaps intra legem and gaps praeter legem when discussing the issue of the rate of interests on sums in arrears, see, most recently, Franco Ferrari, Uniform Application and Interest Rates under the 1980 Uniform Sales Law, 24 GA. J. INT'L & COMP. L. 467 (1995).

854. For papers on gap-filling under the CISG, see, among others, Stephen Rosenberg, The Vienna Convention: Uniformity in Interpretation for Gap-Filling -- An Analysis and Application, 20 AUSTRALIAN BUS. L. REV. 442 (1992); Hans Stoll, Regelungslücken im Einheitlichen Kaufrecht und IPR, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 75 (1993).

855. See Article 7(2) CISG:

"Questions concerning matters governed by the Convention which are not expressly settled in it are to be in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

856. For examples of issues falling outside the scope of application of the 1980 Sales Convention, see Articles 4(a), 4(b) and 5 CISG.

857. For a recent application of the rule mentioned in the text, see, e.g., OLG Koblenz, January 16, 1992, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 1019 (1992).

858. For a detailed discussion of the external gaps to be found in the CISG and their treatment, see, most recently, Bettina Frigge, EXTERNE LÜCKEN UND INTERNATIONALES PRIVATRECHT IM UN-KAUFRECHT (ART. 7 ABS. 2) (Bern, 1994).

859. For this statement, see also Ferrari, supra note 828, at 285.

860. See also Bonell, Art. 7, supra note 33, at 75-76, stressing the importance of the distinction between gaps in the sense of Article 7(2) and issues which are not within the scope of the Convention.

861. See Ferrari, supra note 828, at 282.

862. See supra text accompanying note 854.

863. For this question, see also Reinhart, supra note 828, at 377.

864. See, for this statement, Witz, supra note 68, at 146.

865. For this conclusion, see Guido Alpa & Mario Bessone, Inadempimento, rimedi, effetti della risoluzione nella vendita internazionale di cose mobili, in LA VENDITA INTERNAZIONALE, supra note 32, 165 at 207; Fritz Enderlein et al., supra note 48, at 245 (stating that "where the parties have not agreed the amount of interest will have to be calculated on the basis of the applicable domestic law"); Loewe, supra note 346, at 95; Schlechtriem, supra note 92, at 100 (stating the same); Denis Tallon, Art. 84, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 611 at 612 (stating the question of what "interests are to be paid ... is governed by the applicable domestic law").

866. For this conclusion, see also Herber & Czerwenka, supra note 43, at 347 (stating the rate of interest is to be determined by resorting to the law chosen by the rules of private international law); Ulrich Magnus, Währungsfragen im Einheitlichen Kaufrecht. Zugleich ein Beitrag zu seiner Lückenfüllung und Auslegung, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 116, 140-141 (1989) (according to which the law applicable to the rate of interest should be domestic law referred to by the rules of private international law); Piltz, supra note 21, at 280 (stating the rate of interest is governed by the domestic law chosen by the rules of private international law); Peter Schlechtriem, Recent Developments in International Sales Law, ISRAEL L. REV. 309, 324 (stating "there is an obligation to pay interest, but the details of this obligation are left up to the domestic law called upon by the rules of private international law. This is especially true for the chargeable amount of interest").

See also Herbert Asam & Peter Kindler, Ersatz des Zins- und Geldentwertungsschadens nach dem Wiener Kaufrechtsübereinkommen vom 11.4.1980 bei deutsch-italienischen Kaufverträgen, RECHT DER INTERNATIONALEN WIRTSCHAFT 841, 841 (1989); Peter Kindler, Einige Haupttragen des CISG im Spiegel der neueren deutschen Kommentarliteratur, JAHRBUCH FÜR ITALENISCHES RECHT 201, 216 (1992); Magnus, supra note 156, at 615; Peter Rummel, Schadenersatz, höhere Gewalt und Fortfall der Geschäftsgrundlage, in DAS EINHEITLICHE WIENER KAUFRECHT, supra note 199, 177 at 184-185; Schlechtriem, supra note 92, at 100.

867. Enderlein & Maskow, supra note 58, at 312.

868. For this view, see Hans Stoll, Inhalt und Grenzen der Schadensersatzpflicht sowie Befreiung von der Haftung im UN-Kaufrecht im Vergleich zu EKG und BGB, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 257 at 279-280.

869. See, e.g., Hans Stoll, Internationalprivatrechtliche Fragen bei der landesrechtlichen Ergänzung des Einheitlichen Kaufrechts, in FESTSCHRIFT FÜR FERID 495, 510 (Andreas Heldrich ed., Frankfurt a.M. 1988).

870. Honnold, supra note 25, at 526; for a similar reasoning in legal writing, see also Heuzé, supra note 177, at 341.

871. Honnold, supra note 25, at 525 n.5.

872. Giulio Ponzanelli, Art. 78, NUOVE LEGGI CIVILI COMMENTATE 308, 309.

873. Indeed, "the text speaks of interest as something distinct from damages" (Nicholas, supra note 836, at 570). The formula mentioned in the text, however, would result in "the fact that the interest claim would ... move very near a claim of damages." Enderlein et al., supra note 48, at 245.

874. For court decisions dealing with the issue of the calculation of the rate of interest by applying domestic law, see, e.g., OLG München, March 3, 1994, reprinted in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 1075 (1994); LG Frankfurt, September 16, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 552 (1991); OLG Frankfurt, June 13, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 591 (1991); LG Hamburg, September 26, 1990, reprinted in EUROPÄISCHE ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT 188 (1991); AG Oldenburg i.H., April 24, 1990, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFARHRENSRECHTS 336 (1990); LG Stuttgart, September 6, 1989, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 984 (1990) [note: appears to be same case as LG Stuttgart, August 31, 1989 cited below]; LG Stuttgart, August 31, 1989, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 317 (1990).

For an arbitral award applying the domestic law as the law applicable to interest rates, see, e.g., Arbitral Tribunal ICC, No. 7153, published in JOURNAL DU DROIT INTERNATIONAL 1002 (1992).

875. See Juzgado Nacional de Primera Instancia en lo comercial No. 10 Buenos Aires, quoted in Piltz, supra note 68, at 1005 n.79; Juzgado Nacional de Primera Instancia en lo comercial No. 7 Buenos Aires, reported in CASE LAW ON UNCITRAL TEXTS (case 21).

876. See Article 9 CISG:

"(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.

"(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned."

877. For a reference to this practice, see Piltz, supra note 68, at 1005.

878. Eva Diederichsen, Commentary to Journal of Law and Commerce Case I: Oberlandesgericht Frankfurt am Main, 14 J.L. & COM. 177, 181 (1995).

879. Id.

880. See Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich, Nos. 4366 and 4318, partially reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 590 (1995).

881. Id. at 591.

882. Id.

883. Id.

884. See supra text accompanying note 839.

885. See Peter Schlechtriem, Anmerkung, RECHT DER INTERNATIONALEN WIRTSCHAFT 592, 593 (1995).

886. See text accompanying note 839.

887. See, e.g., OLG Frankfurt a.M., June 13, 1991, published in NEUE JURISTISCHE WOCHENSCHRIFT 3102 (1991); LG Hamburg, September 26, 1990, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFARHRENSRECHTS 400 (1991); AG Oldenburg i.H., reprinted in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 336 (1991).

888. Two early German court decisions referred to the domestic law of the creditor as the law applicable; see LG Stuttgart, August 31, 1989, reprinted in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 317 (1991); LG Frankfurt, September 16, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 952 (1991).

889. For this affirmation, see Ferrari, supra note 828, at 288; Magnus, supra note 68, at 90.

890. See for a similar conclusion, Piltz, supra note 21, at 281; Reinhart, supra note 828, at 378.

891. See supra note 244.

892. See supra text accompanying notes 253-64.

893. See supra text accompanying notes 256-60.

894. See supra the text of Article 4(2) of the EEC Convention, reproduced in note 257.

895. See supra text accompanying notes 259-60.

896. See Joseph Lookofsky, The 1980 United Nations Convention on Contracts for the International Sale of Goods, in INTERNATIONAL ENCYCLOPEDIA OF LAWS 1, 129 (Blanpain ed., Deventer 1993) (stating that "the validity of a contractual claim to interest ... remains a national concern... . In those countries where interest is forbidden, the mere mention of interest in the agreement will render it invalid"): Schlechtriem, supra note 103, 132 n.21 (stating "[i]nsofar as a national law does not allow interest -- for religious reasons, for example -- [Article 78] has no effect"); Schlechtriem, supra note 92, at 100 n.414 (stating that "[t]o the extent applicable domestic law prohibits interest payments, Article 78 would of course, be unenforceable").

897. The view expressed by Nicholas, supra note 836, at 570, who states that if the domestic law "provides no relevant formula for calculating interest, it would seem that the court should look to the cost of credit at the creditor's place of business," has been criticized. It has been said that this solution "does not seem practicable because the solution aspired to by the Western industrialized countries, which was not adopted at the diplomatic conference, would in part be introduced by way of interpretation. Other countries would then be inclined to interpret into the Convention their own rejected proposals." Enderlein et al., supra note 48, at 245.

898. See supra text accompanying notes 81-674.

899. See supra text accompanying notes 686-826.

900. See supra text accompanying notes 827-98.

901. See supra text accompanying notes 53-58.


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