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Reproduced with permission of 11 Vindobona Journal of International Commercial Law & Arbitration (1/2007) 39-52

Comparative Analysis of the Civil Code of the Russian Federation and the CISG

Kirill Lebedyanskiy [a1]

  1. Introduction
  2. Obligation to transfer goods free of rights and claims of third persons
    2.1     Meaning of the term "goods" under the CCRF and CISG
    2.2     The CCRF
    2.3     The CISG
  3. Obligation to transfer documents related to goods
    3.1     The CCRF
    3.2     The CISG
  4. Conclusion

1. INTRODUCTION

The internationalisation of trade is one of the main features of global development and the unification and harmonisation of domestic laws play a part in this process. The United Nations Convention on Contracts for the International Sale of Goods (CISG) might be regarded as an example of a successful attempt [1] by the world's community to achieve this ideal of harmonisation [2] between nations. The fact that there are more than sixty [3] State participants in the CISG in the world at present might be considered proof of this.

The USSR endorsed the CISG on 1 September 1991. Since 24 December 1991, the Russian Federation -- as a successor to the USSR -- has been party to the CISG [page 39] which by virtue of the Constitution of the Russian Federat,[4] constitutes a component part of the Russian legal system.

The CISG has influenced domestic laws in the Russian Federation concerning both international trade and law of obligations in general. The Civil Code of the Russion Federation (CCRF) which regulates on the obligations of sellers and seller-suppliers, was developed out of the norms contained within the CISG and is the primary source of trade regulation in the Russian Federation.

The aim of this paper is to compare the rules concerning contracts of sale in Russian domestic law contained within the CCRF with those provided in the CISG. The task of conducting a comparative analysis seems particularly relevant for a number of reasons. First, it will provide an opportunity to examine any apparent dissimilarities between the CISG (which essentially represents a compromise between the Roman-German and English-American legal systems) and Russian civil legislation (which is based on Roman legal traditions), while at the same time observing the significant influence of the CISG on CCRF norms relating to contracts of sale.

Second, where the CCRF might be applicable by courts as a subsidiary law to the CISG, corresponding norms of the CCRF should be taken into account.

Third, it would appear that by closely analysing the shortcomings and ambiguities of the corresponding rules of both the CISG and the CCRF, some useful proposals for potential amendments may result.

Before considering the obligations in question it is necessary to categorise the circumstances in which the CISG and the CCRF are applicable. There are three possible situations. The first is when the CISG applies without the CCRF by virtue of Article 1(1)(a) [5] or Article 1(1)(b) [6] of the CISG.

Secondly, the CISG and CCRF may apply simultaneously. If an inconsistency arises from their norms, the CISG should overrule the CCRF, because pursuant to the Constitution of the Russian Federation,[7] international treaties of the Russian [page 40] Federation have priority under Russian legislation.[8] Therefore, in the case of the concurrent application of the CCRF and the CISG, the former should apply as a subsidiary law.[9]

Thirdly, the CCRF may be the primarily applicable legal provision if the CISG does not apply.[10]

2. OBLIGATION TO TRANSFER GOODS FREE OF RIGHTS AND CLAIMS OF THIRD PERSONS

2.1 Meaning of the term "goods" under the CCRF and CISG

The transfer of goods is one of the main obligations of the seller according to the CCRF.[11] An analogous obligation is contained in the CISG: 'the seller must deliver the goods as required by the contract and this Convention.'[12] An obligation to transfer goods free of rights and claims of third persons is an integral part of that obligation.

Before considering this duty it is worth noting that the CISG and CCRF have different approaches to what may be regarded as a sale of goods. Pursuant to the CCRF anything which complies with certain rules concerning movement or circulation may be constitute goods.[13] In particular, ships,[14] aircraft,[15] securities [page 41] (subject to restrictions imposed by legislation)[16] and electricity [17] are goods and may be transferred under contracts for the sale of goods according to the CCRF. In contrast, the CISG does not apply to the sale of such goods.[18] Taking into account the fact that the CISG also excludes from its coverage the sale of goods for individual purposes [19] and some other types of sales, it might be concluded that the scope of the CCRF's application to the sale of goods is considerably wider than that of the Convention. This, in turn, may affect the interpretation and scope of the seller's obligations under the CISG and the CCRF, in particular the obligation to deliver goods free from claims and rights of third parties.

2.2 The CCRF

There is a strong probability that in many cases the sale of goods without clear title may lessen the ability of the buyer to use and dispose of the goods.[20] Probably for that reason, the obligation of the seller to transfer goods free of third persons' rights is common in many jurisdictions.[21] Russia is among these jurisdictions, as the obligation to deliver goods free of rights of third persons was well-known in Soviet civil law [22] and, with some modifications, this norm consequently is embodied in present Russian legislation. In particular, pursuant to the CCRF,[23] the seller shall transfer the goods to the buyer free from rights and claims of third persons.[24] There is an exception to this rule if the buyer has agreed to this condition.

According to the CCRF, there are two different types of rights of third persons: proprietary interests (rights in things held by persons who are not owners) and contractual rights. The former are determined in the General Part (Part I) of the [page 42] CCRF.[25] The latter are contractual rights, which appear from contracts of lease, rent, tenancy, pledge and other contracts and acts.[26]

Furthermore, the CCRF contains the obligation of the seller to transfer the goods free of claims of third persons.[27] The CCRF does, however, permit goods to be sold subject to third person claims, provided certain preconditions are met. First, the third person claims must exist prior to the transfer of goods.[28] Second, the third person claims must be sound and valid and be considered lawful by legal procedure (by court statement for example) after the transfer of goods.[29] Finally, the seller must be aware of such claims prior to the transfer of goods.[30]

In addition, there are rules in the CCRF which concern the duties of the seller in the event of the filing of a suit claiming seizure of goods. Thus, if the buyer (or court) informs the seller of such a claim, the seller must appear in the trial on the side of the buyer.[31] If the seller fails to take part in the trial, it shall lose the right to prove that the buyer's actions in the trial were incorrect.[32] Alternatively, if the seller cannot take part in a trial by reason of the buyer's failure, it will be released from liability if the seller can prove that, if it had participated in the case, it could have prevented the seizure of the goods sold by the buyer.[33]

The failure of the seller to perform its obligation to deliver goods free from rights and claims of third parties may lead to a situation in which the buyer may exercise its right to cancel the contract or have a reduction in the purchase price unless it was or should have been aware of such rights or claims.[34] It is also important to note that these rules [35] of the CCRF are obligatory and cannot be excluded by agreement, thus any disclaimer of the seller's liability is invalid.[36] [page 43]

2.3 The CISG

The CISG provision [37] concerning the obligation to deliver goods free of rights and claims of third parties corresponds broadly to the norms of the CCRF.[38] However, the CISG imposes a separate obligation on the seller to deliver goods free from any rights or claims based on industrial property or other intellectual property,[39] whereas the CCRF does not. Before considering this norm, it is necessary to consult the commentaries of others who have considered the relevant articles in the CISG which refer to this obligation.

Schwenzer distinguishes four types of third party rights: sale of a third party's goods; intellectual and industrial property rights; rights in personam and in rem (for example security interests); and public law encumbrances.[40] There is no unanimity among scholars concerning public law encumbrances. For example, Huber,[41] Welser and Doralt,[42] and Honnold [43] consider that public law restrictions frequently fall under third parties' rights and claims.[44] In contrast, some Russian authors, for example Boguslavskiy, suppose that public law encumbrances can amount only to a defect of quality and that only Art. 35(2) - which regulates on conformity (quality) requirements - should apply in such cases.[45]

Schwenzer suggests that there is no general answer as to whether or not public law encumbrances may amount to a defect of title in the context of Art. 41, which obliges the seller to deliver goods free of rights and claims of third persons, because it is necessary to distinguish between defects of title and defects of quality.[46] For example, an export prohibition might result in failure of the seller to deliver the goods,[47] whereas duty and tax encumbrances could amount to a defect [page 44] of title.[48] Hence, according to Schwenzer, there are 'some cases' where public law encumbrances can be considered to constitute defects of title within the meaning of Art. 41. It seems that the more persuasive arguments are made by scholars who believe that public restrictions (at least to a certain extent) are covered by Art. 41. In fact, the courts appear to follow a similar approach.[49]

Both the CISG and the CCRF include an obligation to deliver goods free from the claims of third parties. However, in contrast to the CCRF,[50] the CISG [51] does not distinguish between lawful and ungrounded claims. In the general opinion of many scholars, the rationale behind this is that even unjustified or ungrounded claims can preclude the buyer from proper usage of the goods.[52] Arguably, any sort of claim may be time-consuming and may increase the expenses of the seller.[53] It seems that the approach of the CCRF concerning third parties' claims is not as biased in favour of the buyer as the approach under the CISG, hence the buyer might have a better defence under the CISG than under the CCRF. Nonetheless, Schlechtriem and some other scholars hold the opinion that spurious claims should be excluded under the CISG.[54] It seems necessary to agree with this view to a certain extent in the interest of achieving some balance between the parties' interests. [page 45]

The position of Schwenzer, who suggests that the seller must defeat any claim regardless of whether it is spurious or not,[55] does not seem fair or reasonable, because it is burdensome to the seller who may incur additional costs as a result of a trial even if the claim is unfounded. Hence, an amendment of the CISG might be suggested to exclude any ambiguity. It might be proposed to limit a seller's obligation by delivery of goods free only from grounded claims.

In order to achieve a balance of rights, a rule analogous to one of the abovementioned rules of the CCRF [56] could be incorporated into the Convention. This rule provides for a felicitous practical solution, as it requires the seller to join the buyer in civil litigation (appear in the case on the side of the buyer) in the case of a claim concerning seizure of goods. For the purposes of the CISG, this may be expanded to any third party's claim based on grounds which arose before the transfer of goods. It may be provided that if the seller refuses to participate in the trial and the buyer loses the case, the former should indemnify the latter. However, if in the opinion of the seller the claim is frivolous, they may decide not to join the trial as the seller would not be subject to any negative repercussions.

A further point worthy of note is made by Schwenzer, who argues that although Art. 41 covers only third party claims, there is no doubt that it might also be applied to the rights and claims of the seller.[57] If Schwenzer is right, then this is another significant difference from the rules of the CCRF, because according to the CCRF, third parties are not parties to the contract,[58] so the claims and rights of the seller are not covered by the obligation to deliver goods free of the rights and claims of third parties.

As has already been observed, a separate norm of the CISG is dedicated to the obligation of the seller to deliver goods free from any right or claim of a third party based on industrial or intellectual property.[59] One of the reasons for this is a specific sphere of application and validity of these rights due to the principle of territoriality. [60] Thus, the CISG applies a number of limits to the obligation of the seller to deliver goods with a clean title, provided by Art. 41. First, the CISG provides a territorial limitation, which concerns the validity of the claims and rights of third persons in the country of the buyer or the territory of the country where the goods will be resold (used).[61] This rule is based on a presumption that the seller cannot be responsible for any claims or rights based on intellectual [page 46] property which theoretically may arise in respect of the goods in any country of the world.[62]

Second, in contrast to Art. 41 and the rules of the CCRF, a specific provision of the CISG requires the knowledge of the seller of the claims and rights of a third party to be at the time of the conclusion of the contract.[63] It is supposed that any rights and claims in rem should be known to the seller, because they are governed by the domestic law of their country, whereas the seller may be unaware of the procedures concerning intellectual property which might be governed by the legislation of the country where the goods will be used.[64] In support of this argument, Bianca refers to the reasonable 'contemplation of the seller' about the legal systems upon which these rights and claims can be based.[65] It is common practice that the question regarding the country in which the goods subsequently will be resold is often decided by the buyer after the conclusion of the contract.[66] Hence, the buyer bears the risk concerning third parties' claims and rights which may arise after the conclusion of the contract.

It might be seen from the above that in contrast to the CCRF, the CISG requires knowledge of the seller about the claims of third parties at the time a contract is concluded, whereas the CCRF [67] requires the knowledge of the seller at the moment of delivery. Accordingly, the seller is better protected under the CISG than under the CCRF, because it will be liable under the CCRF if it knew about any claims which arose between the conclusion of the contract and delivery. Under the CISG the seller's liability will be excluded in the above circumstances.

Third, the mere knowledge of the buyer about such rights and claims [68] is sufficient to exclude the liability of the seller.[69] Enderlein claims that, generally, it is an obligation of the seller to deliver the goods and undertake any necessary research regarding the existing rights and claims of third parties.[70] However, the author admits that the parties can agree that it is the buyer's responsibility to conduct [page 47] research of this kind.[71] It is also worth noting that some scholars claim this norm is not very defensible because it would be difficult to distinguish between knowledge of the buyer and implied consent.[72] As a result, it has been suggested that the wording in Art. 41 which requires the buyer's consent should be amended, so that the norm [73] requires the buyer's knowledge or awareness of claims and rights of third parties.[74] Such an amendment does not seem very reasonable as it may weaken the position of the buyer, and furthermore, it would still contain ambiguity as the question may arise as to what constitutes an implied awareness.

Finally, the liability of the seller is also excluded in a case where these rights or claims are caused by a seller's use of instructions and technical drawings provided by the buyer.[75] This rule is quite justifiable because the buyer should be careful when it provides the seller with designs, formulae and other technical documentation. Where the buyer has provided such instructions, and if the goods delivered in accordance with such instructions subsequently infringe a third party's copyright or industrial property right, there should be no doubt that the buyer should be responsible for all negative repercussions which may arise.[76] Hence, in this case it seems that the CISG provides a more objective rule than the CCRF, providing the seller with an additional defence, whereas under the CCRF the seller would be liable for delivery of goods which are burdened with the rights of third parties, derived from the seller's compliance with the buyer's instructions, unless the buyer knew or should have known about these rights.

3. OBLIGATION TO TRANSFER DOCUMENTS RELATED TO GOODS

3.1 The CCRF

In the CCRF, the obligation to transfer documents related to goods is directly linked to the obligation to transfer goods, because the seller shall transfer the appurtenances and documents related to the thing.[77] A definition of the appurtenance (accessory) can be found in Part I of the Civil Code -- it is something that serves the main thing and is connected to it by common function.[78] The lawmakers implied by the word 'documents' any documents which serve to help [page 48] the buyer to use a thing effectively, for example, a certificate of quality or operating instructions.[79] The list of the documents is open and can be specified by law,[80] legal act or contract.[81]

The rule which concerns the obligation of the seller to transfer these documents is discretionary, because the CCRF provides a reservation -- 'unless provided otherwise by contract'.[82] Nevertheless, if any law or legal act obliges the seller to transfer any specific document with a specific good, there is valid reason to believe that this law will overrule the contractual provisions and the reservation shall not apply.[83] It is also important to emphasise that the notion 'documents' in the meaning of this Article does not include the documents of title.[84] As a result, an issue arises as to whether or not an obligation to deliver the document of title arises under the CCRF. To answer this question, it is necessary to refer to the definition of the contract of sale in the CCRF, which states that the seller must transfer the goods to the ownership of the buyer.[85] It might be concluded that the obligation of the seller to transfer the document of title is implied by the above definition. Nevertheless, for the avoidance of doubt, it seems reasonable to embody an express norm providing this obligation in the text of the CCRF.

3.2 The CISG

The CISG also obliges the seller to hand over documents related to the goods.[86] However, the CISG contains a wider definition of the notion of 'documents', by comparison with the CCRF. The Secretariat Commentary [87] states that 'documents' -- according to the meaning used in Art. 34 - are documents of title and other documents provided by contract, such as certificates of origin and insurance.[88] Many scholars are of the same opinion.[89] A buyer's remedies for the seller's [page 49] breach of its obligation to deliver documents under the CISG differ from those provided by the CCRF. Under the CCRF, if the seller does not transfer the documents related to the goods, the purchaser shall designate a reasonable period for the seller to perform this obligation.[90] Hence, only in the event of non-delivery of the documents within this specified period does the purchaser have the right to refuse the goods.[91] In contrast to the CCRF, the CISG provides that the buyer (among other remedies [92]) can declare the contract void if the breach 'amounts to a fundamental breach of contract'.[93]

The CISG in this case is therefore more flexible, providing various remedies for the buyer depending on the consequences of the seller's failure to perform, or depending on the kind of documents the seller failed to deliver. These could be documents of title which are of great importance to the buyer, or could be any other supplementary documents, the non-delivery of which will not amount to a serious or fundamental breach of contract.

It is also necessary to observe that the CISG provides the seller with an opportunity to rectify the lack of conformity in the documents if it delivers them earlier than the date stated in the contract. This right is available only if the seller does not cause the buyer unreasonable expense or inconvenience.[94] Some authors conclude that the seller can exercise this right even when that would otherwise amount to a fundamental breach.[95] It seems that the CISG aims to preserve the contract by different means, providing the seller with the opportunity to rectify its fault. In contrast to the CISG, the CCRF does not make the right to rectify the lack of conformity of documents available to the seller, which would, in any event, seem unnecessary due to the differences noted above in respect of the interpretation of the term 'documents'.

4. CONCLUSION

Having considered two of the main obligations of the seller under the CCRF and the CISG, the following key points should be noted. [page 50]

Despite the significant differences in the aims of these instruments [96] the norms of the CCRF and CISG are quite similar. This might be explained by the fact that when the chapters of the CCRF devoted to general obligations and contracts of purchase-sale were being drafted, their authors drew from the principal notions contained in the CISG.[97] Nonetheless, there are some notable distinctions.

First, the rules of the CISG are more compact and succinct than those of the CCRF which, although they generally follow the structure of the CISG provisions, also leave room for local laws. In addition, in contrast to the rules of the CISG which are mostly discretionary and leave more freedom to the parties to a contract, the norms of the CCRF are more imperative. The reason behind the imperative nature of the CCRF is probably the need to defend the interests of participants of domestic trade, as market economy, trade customs and self-regulated bodies are still developing in Russia.

The CCRF and the CISG have very different interpretations of fundamental notions, such as 'goods' and 'documents'. Moreover, while the CCRF provides comprehensive explanations of terms, the CISG either does not define them at all or provides only indirect mechanisms for their determination, which causes confusion and ambiguity.

Other dissimilarities may be thought to exemplify situations where the CCRF offers better solutions than the CISG. For example, the CCRF requires the seller to deliver goods which are free from legislative (grounded) claims of the third parties only, whereas it is not clear from the text of the CISG whether spurious claims of third parties are excluded. Nevertheless, it seems that in some instances the norms of the CISG are more adequate than those of the CCRF. Thus, in contrast to CISG, the CCRF lacks clarity when it comes to regulation of the transfer of documents of title.

In view of these comments, the following proposals might be considered. In the body of the CCRF it is necessary to expressly provide a rule requiring the transfer of documents of title. It also might be an improvement to the CCRF to add an article excluding the seller from liability for delivery of goods which are not free from rights and claims of third parties if they arise from the seller's fulfillment of the buyer's instructions, similar to that which exists in the CISG.

The CISG may also be amended in order to avoid ambiguity. Definitions of the most important notions, such as 'delivery of goods' and 'documents' are needed. ]page 51] Furthermore, Art. 41 should expressly stipulate that the seller must deliver goods free from sound claims of third parties only. However, in order to avoid a lack of balance concerning rights, consideration could also be given to supplementing Art. 41 with a norm obliging the seller to join the buyer in the event of any third parties' claim arising with respect to delivered goods.

It might be observed that despite the shortcomings identified in this paper, the CCRF is still developing. For example, a new Part III has recently been passed. On the other hand, the ambiguity of the CISG seems to be an inevitable side-effect of harmonisation. Thus, it might be hoped that both instruments generally will fulfill their roles rather more successfully, and that their comparison and analysis will facilitate their development and improvement. [page 52]


FOOTNOTES

a1. Kirill Lebedyanskiy is a qualified lawyer in Russia. He gained a law degree at Moscow State Social University (2000), an LLM degree at University of London (2006) and is currently studying a CPE/GDL course at BPP School of Law (London). This is article is part of a larger paper originally written as an LLM dissertation (Queen Mary College, 2006).

1. For opposite opinion see Stephan, P. B., The Futility of Unification and Harmonization in International Commercial Law, 1999, University of Virginia, School of Law, available at: <http://papers.ssrn.com/paper.taf?abstract_id=169209>.

2. Eliseev, I. V., Civil law regulation on International Sale of Goods, 2002, Uridichesky Center Press, St Petersburg, at p. 11.

3. Sixty-four countries as at 2004; see Schlechtriem, P. and Schwenzer, I. (eds), Commentary on the UN Convention on the International Sale of Goods, 2nd English Edition, 2005, Oxford University Press, Oxford, at p. 1.

4. Constitution of the Russian Federation 1993, Art. 15(3).

5. Article 1(1)(a) of the CISG provides: '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.'; see Case 419/1995, discussed in Rozenberg, M. G., Practica Megdunarodnogo Kommercheskogo Arbitragnogo Suda pri Torgovo Promishlennoy Palate RF za 2001-2002 gg. [Practice of the International Commercial Arbitration Tribunal at the International Chamber of Commerce and Industry of the RF in the Years 2001-2002], 2004, Statut, Moscow, at pp. 122-5.

6. Article 1(1)(b) of the CISG provides: 'This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (b) when the rules of private international law lead to the application of the law of a Contracting State.'

7. Constitution of the Russian Federation 1993, Art. 15(3).

8. Rozenberg, M. G., 'The Civil Code of the Russian Federation and International Agreements' (1999) 44 McGill Law Journal 473.

9. See Cases 114/2000, 88/2000, discussed in Rozenberg, M. G., Practice of the ICAT in years 2001-2002, at pp. 68-71, 45-50.

10. If the contract does not fall under the sphere of the CISG application: see, for example, Cases 297/1999-A, 199/2001, discussed in ibid, at pp. 167-177, 283-296; if the parties agree on Russian legislation as a governing law of contract: see, for example, Cases 73/2000, 222/2000, discussed in ibid at pp. 51-2, 130-3; if Russian legislation (Russian material law) is applicable to the relationship of the parties due to the private international law rules: see, for example, Case 47/2003, discussed in Rozenberg, M. G., Practica Megdunarodnogo Kommercheskogo Arbitragnogo Suda pri Torgovo-Promishlennoy Palate Rossiyskoy Federatsii za 2003 g. [Practice of the International Commercial Arbitration Tribunal at the International Chamber of Commerce and Industry of the Russian Federation in the Year 2003], 2004, Statut, Moscow, at pp. 223-6; see also Case 209/2001, discussed in Rozenberg M.G., Practice of the ICAC in years 2001-2002, at pp. 322-5; if the parties referred to the Civil Code during the trial: see, for example, Case 187/2001, discussed in Rozenberg, M. G., Practice of the ICAC in year 2003, at pp. 170-185.

11. CCRF, Arts. 456 (1) and 506.

12. CISG, Art. 30.

13. CCRF, Arts. 455(1) and 129.

14. CCRF, Art. 130(1).

15. Ibid.

16. CCRF, Art. 454(2).

17. CCRF, Art. 539.

18. CISG, Art. 2(d)-(f).

19. CISG, Art. 2(a).

20. Honnold, J. O., Uniform Law for International Sales under the 1980 United Nations Convention, 1987, Kluwer, Deventer, at pp. 287-8; Eliseev, I. V., Civil law regulation, at pp. 170-1.

21. Schlechtriem, P., 'The Seller's Obligations under the United Nations Convention on Contracts for the International Sale of Goods' in Galston, N. and Smit, H. (eds), International Sales, (1984, Matthew Bender), 6-31.; Honnold, J. O., Uniform Law, at pp 285-6.

22. CCRF, Art. 241.

23. CCRF, Art. 460(1) para. 1.

24. It is necessary to emphasise that, according to Art. 308(3) of the CCRF, third persons are defined as persons who are not party to the contract.

25. CCRF, Art. 216.

26. Abova, T. E. and Kabalkina, A. U., Kommentariy k Gragdanskomy Kodeksu Rossiyskoy Federatsii, Chasti Vtoroy, [Commentary to the Civil Code of the Russian Federation, Part 2], 2005, Uraight, Moscow, at p. 31.

27. CCRF, Art. 460(2).

28. Ibid.

29. Ibid.

30. Ibid.

31. CCRF, Art. 462, para. 1.

32. CCRF, Art. 462, para. 2.

33. Ibid.

34. CCRF, Art. 460(1) para. 2.

35. CCRF, Arts. 460-2.

36. CCRF, Art. 461(2).

37. CISG, Art. 41.

38. CCRF, Art. 460.

39. CISG, Art. 42.

40. Schlechtriem, P. and Schwenzer, I. (eds), Commentary, at p. 484.

41. Huber, P., Der Uncitral - Entwurfeines Uberreinkommens uber untrenationale Warenkaufvertrage, 1979, Rabels, at p. 241.

42. Dolart, (ed), Das Uncitral-Kaufrecht im Vergleich zum osterrichischen Recht. Fererate und Diskussionen das Symposiums in Baden bie Wien, 17-19 April 1983, 1985, Manz, Wien, at p. 114.

43. Honnold, J. O., Uniform Law, at p. 241.

44. Enderlein, F. and Maskov, D., International Sales Law. United Nations Convention on Contracts for the International Sale of Goods. Convention on the Limitation Period in the International Sale of Goods, 1992, Oceana, New York, London, at p. 165.

45. Boguslavskiy, M. M., Vilkova, N. G., and others, Veinskaya Conventsiya o dogovorah megdunarodnoy kupli-prodagi tovarov. Kommentariy [Vienna Convention on Contracts for the International Sale of Good: Commentary], 1994, Juridicheskaja Literature, Moscow, at p. 113.

46. Schlechtriem, P., Commentary, infra fn 54, at p. 327.

47. It is a breach of Article 30 of the CISG.

48. Schlechtriem, P., Commentary, infra fn 54, at p. 327-8.

49. See, for example, Case 99/1997, discussed in Rozenberg, M. G., Practika of Mejdunarodnogo Commercheskogo Arbitrajnogo Syda: Haychno-Practicheskiy Commentariy [Practice of the International Commercial Arbitration Court: Scientific - Practical Comments], 1998, Statut, Moscow, at pp. 27-31, English translation available at <http://cisgw3.law.pace.edu/cases/980121r1.html>.

50. CCRF, Art. 460.

51. CISG, Art. 41.

52. Enderlein, F. and Maskov, D., International sales law, at p. 166; Enderlein, F., 'Rights and Obligations of the Seller under the UN Convention on Contracts for the International Sale of Goods' in Volker, P. and Sarcevic, P. (eds), International Sale of Goods, Dubrovnik Lectures, 1986, Oceana, New York, London, Rome, at p. 179; Leonova, E. V., Dogovor megdunarodnoy kupli-prodagi, zakluchenie i soderganie [Contract of International Sale of goods: conclusion and content], PhD thesis, 2002, St Petersburg, at p. 101; Honnold, J. O., Uniform Law, at p. 287; Bianca, C. M. and Bonell, M. J., Commentary on International Sales Law, 1987, Giuffrè, Milan, at p. 318; Schlechtriem, P. and Schwenzer, I. (eds), Commentary, at p. 487.

53. Honnold, J. O., Uniform Law, at p. 287.

54. Schlechtriem P., 'The Seller's Obligations', supra fn 21, at pp. 6-32;, Schlechtriem, P., Commentary on the UN Convention on the International Sale of Goods (CISG), 1998, Oxford University Press, Oxford, at p. 329; Herber, R. and Czerwenka, B., Internationales Kaufrecht, Kommentar zu dem Ubereinkommen der Vereinten Nationen vom 11. April 1980 uber Vertrage uber den Internationalen Warenkauf, 1991, Beck, Munchen, art 41, para. 6.

55. Schlechtriem, P. and Schwenzer, I. (eds), Commentary, at p. 487.

56. CCRF, Art. 462.

57. Schlechtriem, P. and Schwenzer, I. (eds), Commentary, at p. 488.

58. CCRF, Art. 308(3).

59. CISG, Art. 42. This concerns the delivery of goods which are free from rights and claims of third parties based on intellectual property.

60. Enderlein, F. and Maskov, D. (eds), International sales law, at p. 167.

61. CISG, Art. 42(1)(a).

62. Enderlein, F., 'Rights and obligations of the seller', supra fn 52, at p. 180; Commentary on the Draft Convention on Contracts for the International Sale of Goods, prepared by the Secretariat (A/CONF. 97/5). OR., 14-66, at p. 37, Art. 40; Schlechtriem, P., Commentary, at p. 335.

63. CISG, Art. 42 (1).

64. Leonova, E. V., Dogovor, at p. 101.

65. Bianca, C.M. and Bonell, M. J. (eds), Commentary, at p. 320.

66. MacLean, R. (ed), The Conflict of Laws, 4th ed., 1993, Sweet and Maxwell, London, at p. 310.

67. CCRF, Art. 460.

68. In comparison to the buyer's consent required under Art. 41 of the CISG and Art. 460 of the CCRF.

69. CISG, Art. 42(2)(a).

70. Enderlein F. and Maskow, D. (eds), International sales law, at p. 170.

71. Ibid.

72. Leonova, E. V., Dogovor, at pp. 102-103; for commentary regarding difficulties in distinguishing between consent and knowledge, see Campbell, D., Structuring International Transactions, 1997, Kluwer, Boston, at p. 48.

73. CISG, Art. 42(2)(a).

74. Leonova, E. V., Dogovor, at p. 103.

75. CISG, Art. 42(2)(b).

76. Enderlein, F., 'Rights and obligations of the seller', supra fn 52, at p. 183.

77. CCRF, Art. 456(2).

78. CCRF, Art. 135.

79. Abova, T. E. and Kabalkina, A. U., Commentary, at p. 26.

80. For example, Consumer Protection Act of the Russian Federation No 2300-1 of 7 February 1992.

81. Eliseev, I. V., Civil law regulation, at p. 154.

82. CCRF, Art. 456(2).

83. Abova, T. E. and Kabalkina, A. U., Commentary, at p. 26.

84. Ibid.

85. CCRF, Art. 454(1).

86. CISG, Arts. 30, 34.

87. See the Secretariat's Commentary on Article 32 of the 1978 Draft of the CISG (which subsequently became Article 34), available at: <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-34.html>.

88. Kritzer, A. H. (ed), Guide to the practical application of the United Nations Convention on Contracts for the International Sale of Goods, 1994, Kluwer, Deventer, Boston, at pp. 245-6.

89. Schlechtriem, P., Commentary, at p. 270; Herber, R. and Czerwenka, B., Internationales Kaufrecht, Art 34, para 3; Enderlein, F., Maskow, D. and Strohbach, H., Internationales Kaufrecht, Kaufrechtskonvention, Verjährungskonvention, Vertretungskonvention, Rechtsanwendungskonvention, 1991, Haufe, Berlin, Art. 34, note 2.

90. CCRF, Art. 464.

91. Abova, T. E., Kabalkina, A. U., Commentary, at p. 35.

92. See CISG, Arts. 46(1) and 74.

93. CISG Art. 49(1)(a).

94. CISG, Art. 34.

95. Gabriel, H., Contracts for the Sale of Goods: A Comparison of Domestic and International Law, 2004, Oceana, New York, at p. 117.

96. The CCRF regulates on the law of obligations at the local level, whereas the purpose of the CISG is harmonisation in the international sale of goods.

97. Gavrilova, A. N., Dogovor postravki v usloviyah rinochnoy econimiki [Contract of supply in market economy], PhD thesis, 2001, Volgskiy University, Saratov, at p. 21.


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