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Reproduced with permission of 10 Vindobona Journal of International Commercial Law & Arbitration (2/2006) 215-228

New Developments in the CISG

Burghard Piltz [a1]

  1. Introduction
  2. Contracting States
  3. References to Current Publications
  4. Case Law Regarding the CISG
    4.1    Sphere of Application of the CISG
    4.2    Conclusion of the Contract
    4.3    Primary Duties of the Seller and the Buyer
    4.4    Breach of Contract by the Seller
    4.5    Breach of Contract by the Buyer
    4.6    Damages

1. INTRODUCTION

As of 1 April 2006, 67 States have ratified the United Nations Convention on the International Sale of Goods (CISG). Nearly 80% of the German foreign trade transactions are processed with business partners from Contracting States of the CISG. In addition and from a German perspective, the CISG applies to practically all German export transactions. An additional incentive in favour of the CISG is the new German Schuldrecht of the BGB (Law of Obligations of the German Civil Code) which is generally clearly less favourable for the exporter than the CISG. The following article complements the list of the Contracting States, indicates new working tools, and summarises =- in accordance with the outline criteria of the author's 2003 article [1] -- the additionally accessible case law since 2003.[page 215]

2. CONTRACTING STATES

The CISG [2] dated 11 April 1980, was ratified and accepted by 65 states as of 1 April 2006.[3] Since 1 March 2003 [4] the following further Contracting States are:

   -    Gabon, as in effect 1 January 2006;
   -    Honduras, as in effect 1 November 2003;
   -    Korea, Republic of, as in effect 1 March 2005;
   -    Cyprus, as in effect 1 April 2006;
   -    Liberia, as in effect 1 October 2006; and
   -    Paraguay, as in effect 1 February 2007.
   -    Estonia withdrew the reservation to Art. 96 CISG so that the CISG applies there unconditionally as of 1 October 2004. Hong Kong Special Administrative Region does not rank among the Contracting States.[5]

3. REFERENCES TO CURRENT PUBLICATIONS

Since 2003, further commentaries and books have been published regarding the CISG. See in particular:

   -    Schlechtriem, P. and Schwenzer, I., Commentary on the UN Convention on the International Sale of Goods (CISG), Second Edition, 2005, Oxford University Press.
 
   -    Magnus, U. and Martinek, M., Wiener UN-Kaufrecht (CISG), in Staudinger, J. (ed), Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, 2005, Sellier/de Gruyter.
 
   -    Schlechtriem, P., Internationales UN-Kaufrecht, Third Edition, 2005, Mohr Siebeck.
 
   -    Gabriel, H., Contracts for the Sale of Goods, 2004, Oceana Publications.
 
   -    Westermann, H. P., Gruber, P. and Huber, P., in Münchener Kommentar zum Bürgerlichen Gesetzbuch, Band 3: Schuldrecht Besonderer Teil I, Fourth Edition, 2004, C. H. Beck.
 
   -    Brunner, C., UN-Kaufrecht - CISG, 2004, Stämpfli Verlag AG. [page 216]
 
   -    Lookofsky, J., Understanding the CISG in the USA, Second Edition, 2004, Kluwer Law International.
 
   -    Schlechtriem, P. and Schwenzer, I., Kommentar zum Einheitlichen UN-Kaufrecht - CISG, Fourth Edition, 2004, C. H. Beck.
 
   -    Benicke, C., Ferrari, F. and Mankowski, P., in Münchener Kommentar zum Handelsgesetzbuch, Band 6, 2004, C. H. Beck.
 
   -    Bernstein, H. and Lookofsky, J., Understanding the CISG in Europe, Second Edition, 2003, Kluwer Law International.

In addition, the following Internet-accessible CISG databases proved to be useful:

   -    <http://www.uncitral.org>: Database of UNCITRAL which includes the most current status of ratification.
   -    <http://www.cisg.law.pace.edu>: Materials and commentary, extensive collection of literature and case law, and also including further links.[6]
   -    <http://www.cisg-online.ch>: Comprehensive database; court decisions partially in full text.[7]
   -    <http://www.witz.jura.uni-sb.de/CISG>: French case law, partially in full text.[8]
   -    <http://www.uc3m.es/cisg>: Decisions in Spanish.[9]
   -    <http://www.business.vu.edu.au/cisg>: Australian decisions in full text.[10]
   -    <http://www.cisg.at>: Austrian decisions, predominantly in full text.[11]
   -    <http://www.law.kuleuven.ac.be/int/tradelaw>: Belgian decisions, partially in full text.[12]

4. CASE LAW REGARDING THE CISG

4.1 Sphere of Application of the CISG

The CISG applies to contracts for the sale of goods: Art. 1(1). Debt acknowledgments,[13] therefore, do not fall under the CISG. Yet agreements regarding claims deriving from contracts which are subject to the CISG, do fall under the [page 217] CISG.[14] Contracts, which include sales obligations but in which the preponderant part of the obligations do not deal with sales, are precluded from the sphere of application of the CISG: Art. 3(2). The bare circumstance that the price portion for hardware under a hardware and software supply contract is higher than for the software, does not lead to the application of the CISG if the software has to offer special characteristics that exceed the fine-tuning of an existing program, and therefore, the interest in the supply of services outweighs the hardware component of the contract.[15] Likewise, the CISG does not apply to a contract which comprises the planning, delivery, assembly and start-up of a plant for waste separation, if a network of mutual co-operation and auxiliary obligations is the centre of attention rather than the exchange of goods for money.[16] Contrary to its separate sales contracts, a joint venture agreement does not constitute a sales contract in accordance with the CISG.[17]

The sales contract must deal with the delivery of goods. The application of the CISG regarding the sale of live cattle [18] -- as well as of software [19] -- is consistent with the existing practice. It is irrelevant whether the goods will be tightly integrated; it is rather important that the goods are movable at the time of delivery.[20]

The CISG applies to recognisably transnational sales contracts with a contact to at least one of the Contracting States: Art. 1(1) and (2). The circumstances are of a transnational nature if the buyer's and the seller's place of business, which are decisive for the specific contract,[21] arc in different States. Distributors and sales representatives do not constitute a place of business of the entrepreneur.[22] On the one hand, the additionally requested Contracting State contact is established if both states, in which the places of business of the buyer and the seller are situated, are Contracting States to the CISG: Art. 1(1)(a). On the other hand, the CISG also applies if the parties are situated in different States -- but not two Contracting States -- and the rules of private international law lead to the application of the law of a Contracting State: [page 218] Art. 1(1)(b). The latter alternative has consequently been applied [23] so that the CISG regularly applies when exporters from one of the fifteen old States of the European Union, which have ratified the CISG, deliver goods to non-Contracting States.[24]

The CISG automatically applies once the aforementioned requirements are met without further statement to that effect or the parties' knowledge of the existence of the CISG. However, the parties may exclude the application of the CISG: Art. 6. An exclusion of the CISG can still be declared during court proceedings.[25] It is always required that the parties have knowledge of the applicability of the CISG and still wish to apply non-unified domestic law. Accordingly, the mere quotation of German regulations [26] or citing the BGB (German Civil Code) / HGB (German Commercial Code) [27] in argumentation does not suffice to implicitly exclude the CISG. As continuously decided in the past, the courts find that the general agreement to apply the law of a Contracting State (e.g.: German law shall apply [Es gilt deutsches Recht]) does not implicitly exclude the application of the CISG and that additional indications are necessary.[28] However, an implicit exclusion has to be accepted if 'the respective law for German residents' [das für Inländer in der BRD massgebende Recht] has been agreed upon.[29]

The CISG regulates the formation of the sales contract, the requirements as to form, and the buyer's and the seller's rights and obligations arising from such a contract: Arts. 4, 11 and 29(1). The CISG does not include any procedural jurisdiction. However, as far as agreements as to the jurisdiction require a contract, the conclusion [page 219] of such contract will be evaluated under the CISG.[30] Also the inclusion of general terms and conditions is subject to the CISG.[31]

Core content of the CISG are the buyer's and the seller's rights and obligations resulting from the sales contract. Accordingly, any breach of contract will be evaluated under the CISG,[32] and therefore, excludes any recourse to competing torts law.[33] At least indirectly the CISG regulates the burden of proof.[34]

In the outlined sphere of application the CISG overrides the non-unified domestic law [35] as well as international private law.[36] However, the evaluation of the validity of the contract or of any of its provisions is reserved to domestic law: Art. 4(a). Further, the statute of limitations [37] and the set-off [38] are not regulated by the CISG and are reserved to domestic law.

The CISG is, to a large extent, optional. Beside express or implicit arrangements (Art. 6), any usage to which the parties have agreed -- as well as widely known and regularly observed usages such as the rules of interpretation of the INCOTERMS [39] -- override the provisions of the CISG: Art. 9. The same applies to the practices the parties have established among themselves which can also derive from action based on tolerance if such tolerance of action has not been sufficiently emphasised.[40]

4.2 Conclusion of the Contract

The relationship between Arts. 14 and 55 regarding the principle of price determination, which has kept the courts repeatedly busy, has been enhanced by a further case: the agreement to deliver goods 'at the commercial price' is sufficient to conclude a valid contract. In this circumstance and in the absence of any agreement, [page 220] the price will be determined pursuant to Art. 55.[41] Without detailed explanation the OLG Zweibrücken found that a 'pro-forma-invoice' followed by the opening of a letter of credit does not represent a valid conclusion of a contract,[42] even though other courts ruled that the pro-forma-invoice generally constitutes an offer [43] and the opening of the letter of credit usually signalises an acceptance.[44] Also typical for an implied acceptance of a contract is the acceptance of the goods; this conclusion, however, needs to be reviewed when third parties are involved.[45] In addition, problems with the language may appear in the case of formulated contractual agreements. An acknowledgement of the order in German may not necessarily be identified as such by a French party if the French party is not familiar with the German language and the prior negotiations have been held in French.[46] Also an acceptance that differs materially from the offer generally does not constitute a conclusion of the contract: Art. 19(1). Modifications of the buyer's acceptance, which only affect the buyer's sphere, are not regarded as material changes.[47] In addition, the offeror has the right to prove that an extension of the payment term depending on the circumstances does not constitute a material alteration of the terms of the offer.[48]

A series of court decisions have dealt with general terms and conditions in CISG-related contracts during the report period. It has repeatedly been confirmed that the inclusion of general terms and conditions has to be evaluated according to the CISG.[49] Mostly, Art. 14 in connection with Art. 8,[50] but in part also Art. 7(2), are being applied.[51] Accordingly, the user of the general terms and conditions has to sufficiently indicate their inclusion and applicability when concluding the contract.[52] In addition, such indication has to be formulated in a language that the other party has to accept. Where the contractual language is English, it is therefore not sufficient to include an indication in German if the other party is not capable of understanding German.[53] While it is usually sufficient in business dealings between Germans to include an indication that the general terms and conditions apply, the CISG asks furthermore that the text of the general terms and conditions is handed over to the other party at the [page 221] latest at the conclusion of the contract.[54] Accordingly, the general terms and conditions do not apply when the other party still needs to obtain the text. It is also crucial that the text of the general terms and conditions is composed in the language of the negotiations or in the language of the other party's country.[55] The issue of conflicting general terms and conditions regarding the CISG is still not finally resolved. However, the notion should prevail that an acceptance, which indicates that one's own general terms and conditions shall apply, has to be evaluated as a counteroffer pursuant to Art. 19, at least as long the parties do not mutually fulfil the contract.[56]

4.3 Primary Duties of the Seller and Buyer

Repeatedly, courts have been asked to determine the place of delivery. Given the new provision of Art. 5(1)(b) EC No 44/2001, this issue became all the more important than under the 1968 Brussels Convention.[57] Generally, the seller has to deliver the goods at the place where the goods are handed over to the first carrier for transmission to the buyer: Art. 31(a). Accordingly, the seller is not held liable for any damages caused by the carrier.[58] However, the parties may agree to a different place of delivery. Additional terms such as 'carriage free [franko]' are mainly being interpreted as mere cost regulations which do not have any impact on the place of delivery pursuant to Art. 31(a).[59] Even a term such as 'free construction site [frei Baustelle]' does not have to constitute an agreement on the place of delivery.[60] On the other hand, it is not necessary to use a specific formulation in order to depart from the place of delivery pursuant to Art. 31(a). In fact, this can result from other circumstances. For example, the additional duty for the seller to assemble may result in a shift of the place of delivery.[61] For the assessment of the 'reasonable' time for delivery pursuant to Art. 33(c) it may be of importance which deadline the seller has announced during the negotiations before the conclusion of the contract.[62] Generally, the seller has to package the goods. The packaging must guarantee that foreseeable impacts during [page 222] delivery and storage do not damage the goods.[63] The seller also has to take care of all certificates needed for the exportation of the goods.[64]

Contrary to 270 BGB, the buyer generally has to pay the purchase price at the seller's place of business pursuant to Art. 57(1)(a), unless the parties agree otherwise. In fact, an agreement to deliver the goods to the buyer's place of business and to pay after handing the goods over results in a duty of payment at the buyer's place of business.[65] The agreement 'cash against delivery' creates the duty that payment is to be made against the handing over of the goods pursuant to Art. 57(1)(b).[66] The place of payment pursuant to Art. 57 still has significance as the place of jurisdiction pursuant to Art. 5(1) Lugano Convention [67] and 29 ZPO (German Civil Procedure Code) [68] respectively. It is also being applied as a general principle to other pecuniary claims of the CISG.[69] Generally, the purchase price is due -- again contrary to 271 BGB -- when the goods are placed at the buyer's disposal: Art. 58(1). If the seller has to take care of the transport of the goods, the goods are regarded as being placed at the buyer's disposal only after they have been offered to the buyer at the agreed place of delivery.[70]

Unless they do not hold a right of retention pursuant to Art. 71 or they are exculpated pursuant to Art. 80, the seller as well as the buyer are held liable for their failure to perform. However, subject to the requirements of Art. 79, the party who fails to perform will be excused from being held liable for damages: Art. 79(5). Yet, Art. 79 is not applicable if the default causing action is covered by a guarantee.[71] In addition, the insolvency of the buyer's bank [72] -- as well as the non-delivery from a supplier [73] -- do not excuse the buyer or seller pursuant to Art. 79.

4.4 Breach of Contract by the Seller

After the buyer has accepted the goods without reservations he has to prove the lack of conformity of the goods. In other words, it is not the seller who has to prove that the [page 223] goods are in conformity with the contract.[74] A shifting of the burden of proof, as provided for in 476 in connection with 478(3) BGB, is unknown to the CISG. Any deviation from the condition of the goods as requested by Art. 35 is a lack of conformity. If the parties have agreed to 'wholefood [Bio-Ware]', the seller must meet the standards of EC-No 2092/91.[75] The delivery of fatling-sheep instead of sheep for slaughter represents a lack of conformity as the latter require a higher quality.[76] The mere suspicion that beef is of insalubrious nature constitutes a lack of conformity [77] as long as the seller does not present the documents of compliance in order to invalidate such suspicion. The seller cannot argue that the delivered goods are in conformity with the sample if the sample supplied to the buyer -- for him unrecognisable -- derives from products that are not up-to-date and a commercial usage of delivering products from the most current and up-to-date assortment of products exists.[78] Unchallenged are the fundamental court decisions of the German Supreme Court [BGH] [79] and the Austrian Supreme Court [ÖstOGH] [80] that it is generally not the seller's responsibility to comply with product regulations of the buyer's country.[81] However, the seller cannot rely on this legal position if the goods already do not comply with the provisions of his own country.[82]

The buyer has to give notice to the seller of the lack of conformity within a reasonable time. The period of time begins to run after the lack of conformity has been discovered or ought to have be discovered: Art. 39. The period of time begins immediately if the accompanying documents that are necessary for the qualitative fitness of the goods have not been delivered along with the goods.[83] For the rest, the buyer must examine the goods within a short period in order to identify any lack of conformity: Art. 38. Live cattle has to be examined upon delivery and no later than the following day as the status may change.[84] The delivery of an old CD-version is identifiable within a few working days.[85] For the examination of construction [page 224] machinery, one month has been granted.[86] The circumstance that delivered perishable goods are frozen does not excuse from the duty to examine the goods.[87] If the lack of conformity can only be discovered after dying the fabric, the dying of samples at random is part of an adequate examination.[88] On the other hand, the buyer is not obliged to inspect the elementary electric security regulations of delivered furniture.[89]

The buyer has to give notice of the lack of conformity within a reasonable time: Art. 39. Belgian case law accepts one month,[90] while German case law is rather inclined to accept a shorter period of time.[91] Due to the risk of an infection regarding a fish virus, a Spanish court has ruled that the notice after four to five weeks has been given too late.[92] In Switzerland an average of one month -- at least as machinery is concerned -- is accepted.[93] The notice has to include all kinds of lack of conformity from which the buyer derives any remedy [94] and the buyer must also specify the nature of the lack of conformity: Art. 39. The mere notification of a remarkably bad condition [95] or an improper functioning [96] of the delivered good are not regarded as sufficient notice -- even if the German translation of Art 39 [97] may be considered [98] as far in excess of the standards of the original texts.[99] [page 225]

The buyer risks forfeiting a warranty claim if proper notice is not given, as long as the buyer cannot rely upon the fact that the seller acted in bad faith and did not disclose the information regarding the lack of conformity:[100] Art. 40. The buyer generally bears the burden of proof.[101] An assumption to the detriment of the seller does not persist if the defect is hidden.[102] However, in the case of a gross lack of conformity, the buyer's burden of proof is limited due to the seller's easier access of proof.[103] In addition, the existence of bad faith is recognised when the seller delivers other goods than expressly agreed upon and a mix-up is excluded.[104]

Should the seller fail to deliver conforming goods the buyer may rely on the remedies under Art. 45. If the seller takes back the goods in order to remedy the lack of conformity by repair, the buyer must provide the goods ready for loading; however, the buyer is not responsible for the loading and transportation lock itself.[105]

The jurisprudence has also specifically addressed the issue where the contract has been declared avoided due to the delivery of non-confirming goods which -- as a further requirement -- amounted to a gross breach of contract by the seller pursuant to Art. 49(1)(a). Even though the delivery of non-conforming goods represented a gross breach of contract, the right to declare the contract -- as 'ultima ratio' -- avoided is not available if the seller is willing to remedy without causing the buyer unreasonable inconvenience [106] or the lack of conformity can be remedied by repair.[107] Yet, the mere circumstance that the seller has delivered insalubrious flour or -- contrary to the seller's promise -- foods with genetically modified soy or irreparable goods, does not justify the avoidance of the contract [108] if it is possible and reasonable to expect the buyer to utilise the goods in a different way or to sell the goods at a reduced price.[109]

4.5 Breach of Contract by the Buyer

The unpaid seller will usually continue to request payment of the purchase price: Art. 62.[110] The seller will only make use of the right to declare the contract avoided if the goods have not already been handed over to the buyer, and the seller wants to retrieve the freedom to dispose of the goods in another way. In addition, the non-payment generally does cause a fundamental breach of contract pursuant to Art. [page 226] 64(1)(a).[111] On the other hand, a fundamental breach of contract is given when the buyer refuses to fulfil the obligation to open the letter of credit and, in addition, explicitly announces that there will not be a performance of contractual obligations.[112] Suffice it to say that the breach of contract that justifies the avoidance of the contract is rather the fact that the buyer ultimately refuses to comply with the contractual obligations, rather than the refusal to open the letter of credit.

In addition, the seller is entitled to request interest on the sum that is in arrears pursuant to Art. 78. The only requirement -- which also constitutes the point in time from when interest can be claimed -- is that the payment is due.[113] To be in default as requested by domestic regulations is not necessary.[114] However, Art. 78 only provides for the legal grounds to pay interest without indicating the amount of interest. The courts mostly resort to the interest rates regulated in the subsidiary domestic law, which comes into consideration according to the applicable private international law.[115] However, other courts apply the interest rates at the debtor's place of business,[116] at the creditor's place of business [117] or of the currency [118] in which the payment has to be made. Without further explanation, some courts even apply the interest rates of Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on Combating Late Payment in Commercial Transactions.[119] [page 227]

4.6 Damages

Subject to an exemption under Art. 79,[120] any breach of contractual obligations generally triggers the creditor's right to claim for damages: Arts. 45 and 61. Finally, the creditor of the unfulfilled contractual obligation has to be put in the same position as he or she would be in if the obligation had been performed as agreed.[121] Contrary to the payment of interest under Art. 78, claimed damages have to be precisely calculated [122] and proved and will only be recoverable to the extent that they have been foreseeable: Art. 74. The question is whether or not it is foreseeable that the claimed damages would result out of the breach of contract.[123]

A loss in profit of ten per cent of the purchase price is foreseeable.[124] Also the fees for the attorney rendering a payment reminder are foreseeable and refundable if the buyer does not pay in due time.[125] The same applies regarding costs incurred due to court proceedings because of non-payment. Given that these costs are not always regarded as refundable,[126] it is advisable to enter into a contractual agreement that provides for a refund of such costs. The same applies regarding any payments imposed by the authorities which have to be paid by the seller in a currency-regulated country, as the payment cannot be deposited timely due to the buyer's default in payment.[127] In addition, the creditor of a claim for damages cannot rely on the fact that damages will be paid for each foreseeable position, if the creditor does not take such measures as are possible and reasonable in the circumstances to mitigate the loss: Art. 77. However, it is understood that it is in a creditor's own interest to take reasonable measures to mitigate loss when a claim for damages arises.[128] [page 228]


FOOTNOTES

a1. Professor Dr. Burghard Piltz: Attorney-at-law, Germany (since 1977); Notary public (since 1986); Honorary professor of law at the University of Bielefeld (since 1997); Dr. jur. (1975); studied at the Universities of Münster, Munich, London and Buenos Aires; senior partner of a law firm with almost 50 professionals, specialised in international business, particularly international sales and related transactions, arbitrator in international cases; Chairman of the committee for European contract law and member of the board for international private and procedural law of the Chamber of German Lawyers; member of the editorial board for the law journal Aussenwirtschaftliche Praxis; Counsellor to the President of the Union Internationale des Avocats, Co-editor of the law journal Internationales Handelsrecht (International Commercial Law) and of the Dutch Law Journal Nederlands Tijdschrift voor Handelsrecht (NTHR).

This English translation of the original German version of the article 'Neue Entwicklungen im UN-Kaufrecht' (2005) Neue Juristische Wochenschrift 2126 was undertaken by Christian Paul Alberti, LL.M.: International Case Manager, ICDR/AAA, New York; President, MAA, Vienna (since 2005); Attorney-at-law, Germany (since 2003); Tulane Law, LL.M. (2002).

1. Piltz, B., 'New Developments in UN Sales Law' (2003) 7 Vindobona Journal 213.

2. Articles without further indication are those of the CISG.

3. A listing of all Contracting States is available at: <http:// www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html>.

4. As to the status quo regarding the Contracting States as of March 2003, see supra fn 1.

5. ÖstOGH, IHR 2004, p. 148, p. 155 as well as Guangxi Beihai Maritime Court, Court decision dated 5 March 2002, CISG-Pace (see infra fn 6).

6. Hereinafter referred to as CISG-Pace.

7. Hereinafter referred to as CISG-online.

8. Hereinafter referred to as CISG-France.

9. Hereinafter referred to as CISG-Carlos III.

10. Hereinafter referred to as CISG-Australia.

11. Hereinafter referred to as CISG-Austria.

12. Hereinafter referred to as CISG-Belgium.

13. Bundesgericht (Schweiz), Court decision dated 17 October 2000, CISG-Pace (supra fn 6).

14. OLG Karlsruhe, IHR 2004, p. 62 ff. and Handelsgericht Zürich, Court decision dated 24 October 2003, CISG-online (supra fn 7).

15. Hof van Beroep te Gent, Court decision dated 24 November 2004, CISG-Belgium (supra fn 12).

16. Handelsgericht Zürich, IHR 2003, p. 188 ff.

17. United States District Court for the Eastern District of Pennsylvania, Court decision dated 29 March 2004, CISG-Pace (supra fn 6).

18. OLG Schleswig, IHR 2003, p. 67 ff. and ÖstOGH, Court decision dated 18 November 2003, CISG-Austria (supra fn 11).

19. Handelsgericht Zürich, Court decision dated 17 February 2000, CISG-Pace (supra fn 6) and Hof van Beroep te Gent, Court decision dated 24 November 2004, CISG-Belgium (supra fn 12).

20. Rechtbank Zwolle, Court decision dated 29 January 2003, CISG-Pace (supra fn 6).

21. In more detail: ICC Arbitration Case No. 9771 of 2001, Yearbook Commercial Arbitration XXIX, 2004, p. 46 ff.

22. OLG Karlsruhe, IHR 2004, p. 246 ff.

23. ICC Arbitration Case No. 9771 of 2001, Yearbook Commercial Arbitration XXIX, 2004, p. 46 ff., ICC Arbitration Case No. 10274 of 1999, Yearbook Commercial Arbitration XXIX, 2004, p. 89 ff., decisions of the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Cases No. 222/2001 (Kazakhstan), 161/2000 (Great Britain) and 385/1998 (India), CISG-Pace (supra fn 6) and Arbitral Tribunal Chamber of Commerce Stockholm Case 80/1998 and 81/1998, Stockholm Arbitration Report 2002 p. 2 and p. 45 ff.

24. OLG Düsseldorf, IHR 2005, p. 24 ff. (Israel), OLG Karlsruhe, IHR 2004, p. 62 ff. (Brazil) and OLG Zweibrücken, Court decision dated 2 February 2004 (Iran), CISG-online (supra fn 7).

25. OLG Köln, Court decision dated 26 February 1997, available at: <http://www.justiz.nrw.de>.

26. OLG Zweibrücken, Court decision dated 2 February 2004, CISG-online (supra fn 7).

27. LG Saarbrücken, IHR 2003, p. 27 ff.

28. OLG Düsseldorf, Court decision dated 23 January 2004, CISG-online (supra fn 7), ÖstOGH, IHR 2004, p. 148 ff., Decisions of the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Cases No. 24/2003, 62/2002, 217/2001 and 185/2000, CISG-Pace (supra fn 6), Handelsgericht St. Gallen, IHR 2003, p. 181 ff., United States Court of Appeals for the 5th Circuit, IHR 2003, p. 189 ff. and United States District Court for the Northern District of Illinois, Eastern Division, Court decision dated 29 January 2003, CISG-Pace (supra fn 6).

29. Different view: Hof van Beroep te Gent, Court decision dated 20 October 2004, CISG-Belgium (supra fn 12).

30. ICC Arbitration Case No. 10329 of 2000, Yearbook Commercial Arbitration XXIX, 2004, p. 108 ff. and United States Court of Appeals for the 9th Circuit, IHR 2003, p. 295 ff.

31. OLG Düsseldorf, IHR 2005, p. 24 ff., Rechtbank Arnhem, Court decision dated 17 March 2004, CISG-Pace (supra fn 6), ÖstOGH, IHR 2004, p. 148 ff.; different view Hof van Beroep te Gent, Court decision dated 4 October 2004, CISG-Belgium (supra fn 12).

32. Different view: Cámara Nacional de Apelaciones en lo Comercial - Sala E, Buenos Aires, Court decision dated 7 November 2002, CISG-Carlos III (supra fn 9).

33. Rechtbank van Koophandel te Hasselt, Court decision dated 6 January 2004, CISG-Belgium (supra fn 12).

34. Bundesgericht, Court decision dated 19 February 2004, available at: <http://www.bger.ch>.

35. Supreme Court of Victoria, Court decision dated 24 April 2003, and Arbitration Court for the Moscow Region, Court decision dated 11 February 2002, both CISG-Pace (supra fn 6).

36. Tribunale di Padova, Court decisions dated 25 February 2004 and 31 March 2004, CISG-online (supra fn 7).

37. Hof van Beroep te Gent, Court decision dated 17 May 2004, CISG-Belgium (fn 12).

38. OLG Karlsruhe, IHR 2004, p. 246 ff., LG Mönchengladbach, IHR 2003, p. 229 ff., Audiencia Provincial de Ciudad Real, Court decision dated 19 September 2003, CISG-Carlos III (supra fn 9) and Tribunale di Padova, IHR 2005, p. 31 ff.

39. United States Court of Appeals for the 5th Circuit, IHR 2003, p. 188 ff.

40. Handelsgericht Zürich, Court decision dated 24 October 2003, CISG-online (supra fn 7).

41. Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Case No. 185/2000, CISG-Pace (supra fn 6).

42. OLG Zweibrücken, Court decision dated 2 February 2004, CISG-online (supra fn 7).

43. Piltz, NJW 1996, p. 2770.

44. Piltz, NJW 2003, p. 2060.

45. Bundesgericht, IHR 2004, p. 28 ff.

46. Cour d'Appel de Paris, Court decision dated 10 September 2003, CISG-France (supra fn 8).

47. China International Economic and Trade Arbitration Commission (CIETAC), Award dated 10 June 2002, CISG-Pace (supra fn 6).

48. Hof's-Hertogenbosch, Court decision dated 25 February 2003, CISG-Pace (supra fn 6).

49. See supra fn 31.

50. OLG Düsseldorf, IHR 2005, p. 24 ff., LG Trier, IHR 2004, p. 115 ff., BGH NJW 2002, p. 370 ff. and ÖstOGH, IHR 2004, p. 148 ff.

51. Hoge Raad, Court decision dated 28 January 2005, CISG-Pace (supra fn 6).

52. OLG Düsseldorf, IHR 2004, p. 108 ff.

53. OLG Düsseldorf, IHR 2005, p. 24 ff., see also OLG Düsseldorf, IHR 2004, p. 108 ff.

54. LG Trier, IHR 2004, p. 115 ff., Supreme Court of British Columbia, Court decision dated 21 August 2003, CISG-Pace (supra fn 6), Hof's-Hertogenbosch, Nederlands Internationaal Privaatrecht (NIPR) 2003 p. 192.

55. Rechtbank van Koophandel te Mechelen, Court decision dated 18 January 2002, CISG-Belgium (supra fn 12), OLG Düsseldorf, IHR 2005, p. 24 ff.; more tolerant: ÖstOGH, IHR 2004, p. 148 ff.

56. OLG Düsseldorf, IHR 2005, p. 24 ff.

57. Cp. Rechtbank van Koophandel te Hasselt, Court decision dated 7 May 2003, CISG-Pace (supra fn 6).

58. Kantonsgericht Wallis, Court decision dated 19 August 2003, CISG-online (supra fn 7).

59. Hof van Beroep te Gent, Court decision dated 29 March 2000, CISG-Pace (supra fn 6).

60. OLG Koblenz, IHR 2003, p. 66 ff.

61. OLG Wien, Court decision dated 1 June 2004, CISG-Austria (supra fn 11).

62. Kantonsgericht Appenzell Ausserrhoden, IHR 2004, p. 254 ff.

63. Cour de Cassation, Court decision dated 24 september 2003, CISG-France (supra fn 8).

64. Audiencia Provincial de Barcelona, Court decision dated 12 February 2002, CISG-Carlos III (supra fn 9).

65. BGH, Court decision dated 25 February 2004, CISG-Pace (supra fn 6).

66. LG Nürnberg-Fürth, IHR 2004, p. 21 ff.

67. LG Hamburg, Court decision dated 10 September 2003, CISG-online (supra fn 7), ÖstOGH, Court decision dated 18 November 2003 CISG-Austria (supra fn 11) and Handelsgericht St. Gallen, Court decision dated 11 February 2003, available at: <http://www.gerichte.sg.ch>.

68. OLG Karlsruhe, IHR 2004, p. 62 ff.

69. ÖstOGH, Court decision dated 29 March 2004, CISG-Austria (supra fn 11).

70. OLG Düsseldorf, IHR 2004, p. 203 ff.

71. ÖstOGH, Court decision dated 21 April 2004, CISG-Austria (supra fn 11).

72. Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Case No. 269/1997, CISG-Pace (supra fn 6).

73. ICC Arbitration Case No. 9978 of 1999, ICC International Court of Arbitration Bulletin 11/2, p. 117 ff.

74. Bundesgericht, IHR 2004, p. 252 ff., Bundesgericht, IHR 2004, p. 215 ff. and United States District Court for the Northern District of Illinois, Eastern Division, IHR 2004, p. 156 ff.; different view: Obergericht Luzern, Court decision dated 12 May 2003, available at: <http://www.lu.ch>.

75. OLG München, NJW-RR 2003, p. 849.

76. OLG Schleswig, IHR 2003, p. 20 ff.

77. OLG Frankfurt, IHR 2004, p. 113 ff.; different view as per the result: Hof van Beroep te Gent, Court decision dated 16 June 2004, CISG-Belgium (supra fn 12).

78. ÖstOGH, IHR 2004, p. 25 ff.

79. BGH, NJW 1995, p. 2099 ff.

80. IHR 2001, p. 117 ff.

81. Hof 's-Gravenhage, IHR p. 2004, 119 ff.

82. OLG Frankfurt, IHR 2004, p. 113 ff.

83. OLG München, NJW-RR 2003, p. 849 ff.

84. OLG Schleswig, IHR 2003, p. 20 ff.

85. Handelsgericht St. Gallen, Court decision dated 11 February 2003, available at: <http://www.gerichte.sg.ch>.

86. Kantonsgericht Schaffhausen, Court decision dated 25 February 2002, CISG-online (supra fn 7).

87. United States District Court for the Northern District of Illinois, Eastern Division, IHR 2004, p. 156 ff.

88. LG Berlin, IHR 2003, p. 228 ff.

89. LG München, IHR 2003, p. 233 ff.

90. Rechtbank van Koophandel te Kortrijk, Court decision dated 4 June 2004 as well as Hof van Beroep te Gent, Court decision dated 12 May 2003, cf. also Rechtbank van Koophandel te Hasselt, Court decision dated 6 January 2004 (notice is late if given after six weeks from the date of delivery) and Hof van Beroep te Gent, Court decision dated 2 December 2002 (notice is late if given after almost three weeks), all Court decisions CISG-Belgium (supra fn 12).

91. OLG Düsseldorf, Court decision dated 23 January 2004 (notice is late if given after four weeks from the day of delivery), CISG-online (supra fn 7), LG Tübingen (notice is late if given after eight calendar days regarding delivery of wrong quantities), IHR 2003, p. 236 ff., OLG Karlsruhe (eleven days acceptable if non-perishable goods), IHR 2003, p. 226 ff., OLG München (two weeks or 'still' one month), NJW-RR 2003, p. 849 ff.; more tolerant: LG Giessen, Court decision dated 18 March 2003, CISG-Pace (supra fn 6).

92. Audiencia Provincial de la Coruña, Court decision dated 21 June 2002, CISG-Carlos III (supra fn 9).

93. Obergericht Luzern, Court decision dated 12 May 2003, available at: <http://www.lu.ch> as well as Kantonsgericht Schaffhausen, Court decisions dated 25 February 2002 and 27 January 2004, CISG-online (supra fn 7).

94. OLG Celle, IHR 2004, p. 106 ff.

95. Obergericht Luzern, Court decision dated 29 July 2002, CISG-online (supra fn 7).

96. Handelsgericht Zürich, Court decision dated 17 February 2000, CISG-Belgium (supra fn 12).

97. 'Genau bezeichnet' means precisely specified.

98. Obergericht Luzern, Court decision dated 29 July 2002, CISG-online (supra fn 7).

99. 'Specifying the nature of the lack of conformity', 'en précisant la nature de ce défaut', 'especificando su naturaleza.'

100. Hof van Beroep te Gent, Court decision dated 4 October 2004, CISG-Belgium (supra fn 12).

101. Hof van Beroep te Gent, Court decision dated 24 March 2004, CISG-Belgium (supra fn 12).

102. Hof van Beroep te Gent, Court decision dated 28 January 2004, CISG-Belgium (supra fn 12).

103. BGH, NJW 2004, p. 3181 ff.

104. OLG Zweibrücken, Court decision dated 2 February 2004, CISG-online (supra fn 7); cp. also ÖstOGH IHR 2004, p. 25 ff.

105. OLG Karlsruhe, IHR 2003, p. 125 ff.

106. OLG Köln, IHR 2003, p. 15 ff.

107. Handelsgericht Aargau, IHR 2003, p. 178 ff.

108. Different view Hof 's-Gravenhage, IHR 2004, P. 119 ff., Apellationsgericht Basel-Stadt, Court decision dated 22 August 2003, CISG-Pace (supra fn 6) and Rechtbank Zwolle, Court decision dated 22 January 2003, CISG-Pace (supra fn 6).

109. Fundamentally: BGH NJW 1996, p. 2364 ff.

110. OLG Rostock, CISG-online (supra fn 7) correctly applies Art. 62 as the basis for the claim.

111. OLG Düsseldorf, IHR 2005, p. 29 ff.

112. Supreme Court of Queensland, Court decision dated 12 October 2001, CISG-Pace (supra fn 6) und ICC Arbitration Case No. 10274 of 1999, Yearbook Commercial Arbitration XXIX, 2004, p. 89 ff.; more tolerant: China International Economic and Trade Arbitration Commission (CIETAC), Award dated December 1999, CISG-Pace (supra fn 6).

113. Hof van Beroep te Gent, Court decision dated 8 October 2003, CISG-Belgium (supra fn 12).

114. Kantonsgericht Zug, IHR 2004, p. 65 ff.

115. Hof van Beroep te Gent, Court decision dated 17 May 2004, CISG-Belgium (supra fn 12), OLG Düsseldorf, Court decision dated 22 July 2004, CISG-online (supra fn 7), OLG Karlsruhe, IHR 2004, p. 246 ff., Tribunale di Padova, Court decision dated 31 March 2004, CISG-online (supra fn 7), Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Case-No. 24/2003, CISG-Pace (supra fn 6), Kantonsgericht Wallis, Court decision dated 30 April 2003, CISG-online (supra fn 7) and United States District Court for the Northern District of Illinois, IHR 2004, p. 156 ff.

116. LG Berlin, IHR 2003, p. 228 ff. and Tribunal Cantonal de Vaud, Court decision dated 11 April 2002, CISG-online (supra fn 7).

117. Rechtbank van Koophandel te Hasselt, Court decision dated 25 February 2004, CISG-Belgium (supra fn 12).

118. Rechtbank van Koophandel Ieper, Court decision dated 18 February 2002, CISG-Pace (supra fn 6), OLG Rostock, IHR 2003, p. 17 ff. and Handelsgericht Aargau, IHR 2003, p. 178 ff.

119. Rechtbank van Koophandel te Veurne, Court decision dated 15 January 2003, CISG-Belgium (supra fn 12), LG Mönchengladbach, IHR 2003, p. 229 ff. and LG Berlin, IHR 2003, p. 228 ff.

120. See fn 71 ff.

121. Rechtbank van Koophandel te Kortrijk, Court decision dated 26 May 2004, CISG-Belgium (supra fn 12) and Cour de Justice de Genève, Court decision dated 15 November 2002, CISG-online (supra fn 7).

122. Kantonsgericht Appenzell-Ausserrhoden, IHR 2004, p. 254 ff. and Cour de Justice de Genève, Court decision dated 15 November 2002, CISG-online (supra fn 7).

123. Handelsgericht St. Gallen, IHR 2003, p. 181 ff.

124. Rechtbank van Koophandel te Kortrijk, Court decision dated 4 June 2004, CISG-Belgium (supra fn 12).

125. OLG Düsseldorf, Court decision dated 22 July 2004, CISG-online (supra fn 7).

126. Non-refundable: Arbitration Court for the Moscow Region, Court decision dated 24 August 2000, CISG-Pace (supra fn 6) and United States District Court for the Northern District of Illinois, IHR 2004, p. 156 ff.

127. Refundable: Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Case-No. 225/2000, CISG-Pace (supra fn 6), non-refundable: Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Case-No. 234/2000, CISG-Pace (supra fn 6).

128. Handelsgericht St. Gallen, IHR 2003, p. 181 ff.


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