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Cite as Khoo, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 49-50. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 5

Warren Khoo

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 5

This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person.

1. History of the provision.

     1.1. - This article was introduced at the Vienna Conference for the first time. Although there was a similar provision in Article 5 of the 1974 Limitation Convention, during the preparation of this Convention neither the Working Group nor the Commission had adopted it.

2. Meaning and purpose of tbe provision.

     2.1. - This article amplifies the general rule in Article 4 that the Convention governs only the formation of contracts of sale and the rights and obligations of the seller and the buyer arising from such contracts. It excludes death or personal injury caused by the goods to any person, including, therefore, the buyer himself. The purpose of the provision is to remove from the sphere of application of the Convention the complex area of the law dealing with product liability.

     2.2. - The buyer in a contract of sale may use or dispose of the goods in a great variety of circumstances. Defects in the goods may cause personal injury to his sub-purchaser, or to the ultimate consumer, and render the buyer liable. Any recourse action by the buyer against the seller would be excluded from the Convention, as would any claim based on personal injury to the buyer himself. All these claims would be settled by rules of the applicable domestic law.

     2.3. - This article narrows the scope of Article 74, where a seller in breach of a contract is liable for all the foreseeable loss [page 49] suffered by the buyer as a consequence of the breach. The effect of this article is that all claims based on personal injury, whether the loss was foreseeable or not, would not be regulated by the Convention, but by rules of the applicable domestic law. With the exclusion of the Convention, all requirements stipulated by the Convention for the enforcement of such claims would necessarily be excluded as well, such as the requirement of notice of lack of conformity under Article 39 (see HONNOLD, Uniform Law, 101).

3. Problems concerning the provision.

     3.1. - One of the problems concerning the provision of this article was raised in the proceedings of the Vienna Conference (Official Records, II, 245-246). It concerns the issue of damage to other goods caused by the goods sold. Although suggestions were made to exclude claims for such damage, the Conference did not accept such suggestions.

     3.2. - Since the Convention does not exclude claims for damage to property, it would follow that such claims, if they otherwise fall within the Convention, would be governed by the Convention. Problems may arise in some legal systems where claims for material damage, even by the buyer, are classified as claims in tort. On a narrow interpretation of the main provision of Article 4, it might possibly be argued that such a claim does not arise from the contract of sale. It is submitted, however, that this view is open to question. The mere presentation of a claim as a claim in tort does not take it out of the Convention if the Convention would otherwise apply. This view has been presented in the discussion on Article 4 (see commentary on Article 4, supra, 3.3.5.). [page 50]


Pace Law School Institute of International Commercial Law - Last updated January 10, 2005
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